§ 2.41 p.m.
§ Brought from the Commons, and read a first time.
§ The Lord Privy Seal (Baroness Jay of Paddington)
My Lords, I beg to move the Motion standing in my name on the Order Paper.
§ Moved, That Standing Order 44 (No two stages of a Bill to be taken on one day) be dispensed with to enable the Criminal Justice (Terrorism and Conspiracy) Bill to be taken through all its stages today.—(Baroness Jay of Paddington.)
§ Lord Harris of Greenwich
My Lords, my first response to the Motion is, "So here we go again." I speak as someone who supports the Bill, as my party did in the House of Commons. We shall not vote on this Motion. Yesterday all my colleagues in the Commons voted for the measure. However, they also expressed their concern about the way in which Parliament was considering the matter.
I have no desire to delay the Bill's passage. That would be entirely irresponsible. However, my concern—already expressed by the noble Lord, Lord Strathclyde—is that Motions of this character on Sittings carry a serious danger. First, we are invited to abandon our role as a revising Chamber; we are asked without adequate safeguards to give the Executive almost absolute power to place legislation on the statute book without compelling it to justify its position in detailed debate in the normal manner. Amendments will be placed before the House later today, but few of us believe that there is much likelihood of any of them being carried in what I suspect will by then be a very thin House.
The noble Lord, Lord Carter, has the precedents in front of him and as the noble Baroness will surely tell us there are many previous examples of the House agreeing to procedures of this kind. That is right. In 1974, after the Birmingham public house bombings, my noble friend Lord Jenkins of Hillhead and I introduced the first Prevention of Terrorism Bill. I have never doubted that the passage of that Bill saved many lives in this country. It was carried through this House and another place in a single day with, so far as I recall, the approval of everyone. But there is a significant difference between that occasion and what is happening today. Undertakings were given that the Bill would subsequently be reintroduced in both Houses to allow Parliament to scrutinise it in the normal manner, and that was done on 16th February 1976. When, last week, the Government told me last week of their intentions, I urged them to adopt that procedure. I very much hope that the noble Baroness will tell the House why they have not done so.
I now turn to the increasingly substantial number of precedents for governments behaving in this fashion. During debate on the Northern Ireland (Entry to Negotiations, etc.) Bill on 25th April 1996, the noble Viscount, Lord Cranborne, who did not appear to have 4 any of the doubts expressed by the Opposition Chief Whip, moved a Motion in similar terms to the one that we are invited to decide upon today. Also in 1996, in relation to the Prevention of Terrorism (Additional Powers) Bill, the noble Earl, Lord Fevers, moved a similar Motion in his capacity as Deputy Leader of the House.
There had been an earlier attempt by the government, in July 1985, to take the Sporting Events (Control of Alcohol Etc.) Bill through the House in a single day. The case for the procedure on that occasion was that the government wanted the Bill on the statute book before the new football season began. The legislation contained some interesting provisions such as that giving the Secretary of State the power to extend a Bill which related exclusively to football to any other sport. The government were asked what evidence there was of riots at cricket grounds. The answer was that there had been riots in Pakistan. The increasingly desperate desire to justify the unjustifiable which we saw then has been repeated on many subsequent occasions, although a number of us have complained over the years that we received, particularly from the previous administration, no sympathetic response whatever. We cannot continue like this. On the Bill relating to alcohol at sports grounds, the government eventually conceded the point and a second day was made available for debate, but only because the late John Boyd-Carpenter and Douglas Houghton and the then Leader of the House, the noble Viscount, Lord Whitelaw, conceded the point.
Our concerns about this Motion go far wider than the provisions of the Bill, which, I repeat, we support. I have asked the noble Baroness to consider the case for reintroducing the entire Bill in a subsequent Session. I do not refer merely to a debate on an annual renewal order, which is unamendable. Secondly, will she agree to refer this whole question to the Procedure Committee? There is no point in our continually complaining about the behaviour of successive administrations and not considering the matter within that committee. I hope that a government paper will be placed before the committee discussing these issues and making a number of recommendations. I repeat that we do not intend to challenge the terms of the Motion, but we must express in most emphatic terms our concern.
My Lords, I am sure that the whole House will agree with what was implied by the noble Lord the Government Chief Whip. It is important that we should proceed to the substance of the Bill before the House. I therefore hope that noble Lords will agree that it would be most unhelpful if I tried in any way to delay the proceedings.
I wish to support the Motion proposed by the Leader of the House. However, in doing so I hope that the House will allow me to underline the deep sense of unease which I think is common in all parts of the House. It relates not only to the substance of large parts of the Bill but also to the manner of its introduction in an extraordinarily hurried and unprepared way. That is all too evident in the drafting.
5 The Government Chief Whip and the noble Lord, Lord Harris of Greenwich, rightly suggested that there is a large number, sadly increasing, of precedents for legislation of this kind which naturally involve the surrender of the functions of this House as a working part of the constitution. Sadly, the nature of terrorism makes that inevitable. As the noble Lord, Lord Harris, observed, it forced previous governments—and as their instrument in this House, I was part of it—to ride roughshod over our normal procedures. I was all too obviously grateful for the constructive agreement of the then Opposition. Nevertheless, I hope that the Government, given their libertarian traditions, will agree that there are genuine causes for concern when governments are forced to adopt such procedures. There are obvious civil liberties questions; there is the concern over the hurried preparation of the legislation. Although endorsing the agreement we have made to deliver the legislation so far as we are able by the end of what will, I am sure, prove to be a lengthy day, we hope that the Government will be sympathetic to the concerns expressed by my noble friend the Opposition Chief Whip. They will be expressed, I am sure, on all sides of the House. I trust that the Government will recognise that the best practical way of giving expression to the sympathy which I have no doubt they feel is through assurances of an ex post facto review of what we are about to do. In that way we can look again not only at the inevitable shortcomings of the legislation, but also at how we may improve it and give guarantees that it will not undermine, more than is absolutely necessary, the workings of parliamentary government.
It is in the spirit that I have endeavoured to express that thought this afternoon that I hope your Lordships will feel that it would be sensible for us to proceed now to the substance of the business in hand. I hope that the Government will be able to give us as much reassurance as possible that there will be opportunities for independent review of the working of the legislation at a sensible but not far distant time. I say that particularly in view of the all too obviously hurried way in which the legislation has been introduced.
§ Lord Stoddart of Swindon
My Lords, I shall not keep the House more than a couple of minutes. I simply wish to say that it is not only on the Opposition side of the House that there is disquiet about the way in which the Bill has been brought forward and the fact that it is being rushed through Parliament in a couple of days. We all sympathise with the Prime Minister and the Government, as well as with the people of Omagh and Northern Ireland, in wanting legislation on the statute book to deal with terrorism. But I believe that it should be the right and correct legislation which will do good and do no harm.
There is absolutely no reason why Clause 5 should be introduced today. There is plenty of time to consider it. The matter is of far-reaching consequence and may impinge upon the freedom of the citizen. It merits a proper Bill, debated in proper time in both Houses of Parliament. It is probably too late for the Government to withdraw the clause now, but I wish to express the 6 opinions of some people on this side of the House. We believe in proper parliamentary debate and not a farcical debate such as today's is likely to be.
§ Lord Marlesford
My Lords, I must say with great trepidation that I am quite unconvinced that it is necessary and therefore right for this House to pass the Bill today. I fully recognise that the tide of public opinion must be caught in bringing forward such legislation, but I believe that the debate yesterday in another place, which many of us studied carefully, revealed the need for proper scrutiny. The list of 87 Members of the House of Commons who voted against the guillotine is impressive. It includes Mr. Benn, Mr. Edward Heath, Mr. Mates, Mr. Mullin, Dr. Paisley, Mr. Trimble, Mr. Dalyell, Sir Teddy Taylor, Mr. John MacGregor and Mr. Bernie Grant. They are not normally bedfellows.
This House has the ability to make the legislation much better. Surely it is not impractical for us to take the Second Reading today and have a proper Committee stage next week so that the mass of people in this House—former Secretaries of State from all the relevant departments—can improve the Bill.
§ Lord Elton
My Lords, in addressing the matter of urgency, will the noble Baroness the Leader of the House explain why it was necessary to include Clauses 5, 6 and 7 on a completely different matter from Northern Ireland? It seems to some of us to be about as appropriate as a healthy person hitching a lift in an ambulance.
§ Baroness Jay of Paddington
My Lords, I am grateful to all noble Lords who have spoken, particularly the noble Viscount and the Liberal Democrat Chief Whip for their support of the Motion and substantive business. Like the noble Viscount and other noble Lords who have spoken, I do not seek to spend the time of the House addressing some of the more substantive issues. I am absolutely confident that my noble friend Lord Williams of Mostyn will address them in some detail and with great conviction in order to convince your Lordships on some of the points which have been raised.
It is important to respond to two issues of particular relevance to the business of the House. One was raised by the noble Lord, Lord Harris of Greenwich; the other by the noble Lord, Lord Harris, and the noble Viscount. The first was whether the Government intend to reintroduce the Bill in another Session. Although that is an intriguing idea, I am not sure that it is necessary in this case. As those of your Lordships who have had time to study it will perceive, the Bill provides for the workings of the Act to be laid before Parliament at least once a year. My noble friend Lord Williams of Mostyn will give some detail on the more general revision of terrorism legislation which is being undertaken at the moment. He will embrace some of the issues of concern which have been raised.
The second question concerned how we deal with emergency legislation of this kind—it was implicit in what was said by the noble Lord, Lord Marlesford, and my noble friend Lord Stoddart of Swindon—and the 7 way in which the House should address such matters. The noble Lord, Lord Hams, suggested that the Procedure Committee was the appropriate body to deal with it. Although I am sympathetic to the general points about the proper role of the revising Chamber in this context, it may be that the Procedure Committee is not necessarily the best vehicle. That is because, as shown this afternoon, so much is agreed between the usual channels rather than through the Procedure Committee.
However, my noble friend the Chief Whip is already considering such matters and I am sure that he intends, again in consultation with the usual channels, to take the issue further. Obviously, some of the points raised today have considerable reference to the future as well as the retrospective debate which we might all have about the question of precedents and their relevance to today. I hope that that assures your Lordships that we take these matters seriously and that the substantive points that have been raised will be addressed satisfactorily by my noble friend Lord Williams of Mostyn.
§ On Question, Motion agreed to.
§ 3 p.m.
§ The Minister of State, Home Office (Lord Williams of Mostyn)
My Lords, I beg to move that this Bill be now read a second time.
I shall outline the compelling reasons for this Bill in a moment or two. Your Lordships know something about them—but not as much as the people of Omagh. Roman Catholics and Protestants throughout the years have lived and worked there together. Nineteen days ago, Roman Catholics and Protestants were murdered together as they innocently went about their daily lives.
The need for this legislation was described in another place yesterday. I repeat it. The Government's aim and purpose in introducing this Bill is to ensure that the necessary powers and provisions are in place to respond both to the murders in Omagh and the clear and present danger from international terrorism. Our legal advice has been that we could have introduced some of the measures contained in the Bill by order. That would have been wrong. It is vital to act without delay and it is right to recall Parliament to deal with this matter by primary legislation. I recognise and sympathise with the observations made by noble Lords that more time might have been desirable. We have had to judge what the appropriate course should be in difficult circumstances. We believe that we have done the right thing by recalling Parliament so that primary legislation can be passed.
The situation in Northern Ireland has changed. It continues to evolve daily. There is overwhelming support for the advancing peace process. It is not a creature owned by any single government. I am happy to say, as I have said on many previous occasions, that the predecessor government have behaved honourably. The previous Prime Minister and the former Secretary of State for Northern Ireland devoted their imaginative energies to this over a period of years. They would say that they got loyal support from us when we were in opposition. Peace is now within view. Small, 8 unrepresentative splinter groups have sunk to deliberate, cruel atrocity. They want to subvert the process. We must not and we shall not allow these people to succeed.
At the same time there have been bombings of the United States embassies in Kenya and Tanzania; there was a murderous attack on people having a meal in a restaurant in Cape Town. Your Lordships need no reminders and I do not offer them. We have to direct an unambiguous message to international terrorists that we in this country are vigilant. We will not allow them to use our country as a base for planning crime. I do not use the word "assassination", let alone the adjective "political". We are talking about conspiracy to cause explosions and to murder.
We have wide-ranging powers which have been developed over the years to fight terrorism in the United Kingdom, as two noble Lords have said. We have to maintain a constant review of that type of legislation. We have to be ready to move quickly to deal with practical deficiencies which become apparent on specific, particular occasions. When we were in opposition we actively supported the government of the day. We were right to do so. When that government extended to the police powers to stop and search in April 1996, that was in particular response to the Provisional IRA's resumed bombing campaign. I confidently expect that we shall have the support of all sections of your Lordships' House when dealing with this legislation today.
The noble Lord, Lord Harris of Greenwich, raised a particular point. In response to his theme, I emphasise as strongly as I can that moving swiftly today to close what we see as specific loopholes is entirely without prejudice to the long-term need to look comprehensively at our prevention of terrorism legislation as a whole, which I fully recognise and restate. It has developed in the piecemeal way I described earlier; it needs an overarching review.
The former Home Secretary began this process in 1995 when he appointed the noble and learned Lord, Lord Lloyd of Berwick, to conduct a thorough scrutiny of anti-terrorism measures. I have said before, and respectfully repeat, that his report was a masterly production and was published in October 1996. On 30th October last year the Home Secretary made an interim statement, which I repeated in this House, that work is well advanced on preparing the public consultation we have promised. When that consultation is published, we will welcome all views about it and any suggestion for improvement in its proposals. There will then be the fullest appropriate and desirable opportunity to scrutinise the legislation brought forward. There will be that opportunity to deal fully with some of the more wide-ranging proposals for change. I hope that that will set at rest some of the doubts expressed so moderately and temperately this afternoon.
On that occasion we will have the opportunity to consider the practical effect of the particular changes proposed in this Bill. I hope that that explanation meets the point of some of the proposed amendments which I have seen. More fundamentally, I hope it addresses the spirit of what was spoken to, in particular by the noble Lord, Lord Harris of Greenwich.
9 The object of this Bill is limited. We propose a tightly focused remedy to close off specific gaps. It can fairly be described as a measured response proportionate to present circumstances. After all, this afternoon I shall be speaking to the actual Bill and not to the conjecture of the newspapers, most of which has been remarkably consistent in being completely wrong.
I turn, first, to the provisions of the Bill which relate to Northern Ireland. All parties represented in this House are committed to the peace process. We supported the peace process in Opposition and I hope your Lordships will agree that the Prime Minister and Dr. Mowlam have been remarkably devoted to its promotion in government. That led to the Belfast agreement, which is the product of the efforts by different governments of different hues. The people of Northern Ireland supported the referendum and in the assembly elections they supported parties which were in favour of the agreement. So are their views, expressed in the clearest conceivable way, entitled to no effect because some small splinter group wants to destroy it?
The summer months have been difficult, with all those people being killed so recently in Omagh. That is intended to be the test of political will and democratic principle. I have to say, I hope without presumption, that the way the First Minister designate, David Trimble, and the Deputy First Minister designate, Seamus Mallon, responded to that test is a remarkable tribute to both men. We ought to recognise that speech and action here are not as difficult as speech and principled political decision in Northern Ireland.
This Government have duties. One is to make sure, so far as we humanly and decently can, that those who are bent on wreckage and cruel disaster shall not succeed. The Bill in this context is targeted at specified proscribed organisations. Those organisations must either be specified as defined in the Sentences (Northern Ireland) Act 1998 or designated in an order made by the Secretary of State. Your Lordships will know that there are four such specified organisations. They call themselves the Real IRA, the Continuity IRA, the Irish National Liberation Army and the Loyalist Volunteer Force. Your Lordships will know that three out of that four have claimed some form of ceasefire, but in our judgment they have not demonstrated that that represents a sustained and serious commitment to non-violence. Therefore, their intentions remain to be tested. Dr. Mowlam will consider changing that specification only in the light of real progress.
The Dail in Dublin has been meeting at the same time as another place. The simultaneous recall of the two assemblies, the Commons and the Dail, and now of your Lordships' House, is a powerful demonstration of how co-operation can be made to work on a cross-border basis. The same is true operationally. There have been significant successes in the Republic, Northern Ireland and Great Britain, relying very heavily on operational co-operation. The tightening of the law that we propose today is to support that operational co-operation. We think that we have a duty to act without delay.
The Bill is intended to make it easier to secure conviction of those who are members of the specified proscribed organisations. Membership of proscribed 10 organisations has been illegal for many years. The power has been used with some success. Since 1989 there have been 195 convictions in Northern Ireland for membership of a proscribed organisation. It has proved difficult to prosecute for membership alone in the past. The Bill deals with that in these ways. It makes admissible a statement by a police superintendent relating to membership of a specified proscribed organisation in respect of a particular accused; that is, it is admissible as evidence in court. I say immediately that that of itself will not be enough to secure a conviction. However, it will, in the nature of things, be a central element in starting any prosecution.
Secondly, the court may draw inferences from a failure to answer relevant questions in respect of that membership offence. That, again, will not be enough to secure a conviction on its own. Thirdly, the arrest powers in the Prevention of Terrorism Act will be re-aligned so that a police officer in Northern Ireland will have the same powers of arrest and detention in Northern Ireland as presently obtain in England and Wales. The Bill gives the courts new power to order the forfeiture of property following conviction for membership or support for a proscribed organisation. The court will be able to order the forfeiture of any form of property if it is satisfied that it has been used in connection with the activities of a group like the Real IRA or it believes that this may be used in the future. There are severe penalties at present—up to 10 years' imprisonment and unlimited fines. We believe that this new provision is a valuable and justified reinforcement. It emphasises the gravity of the offence and it pulls away the practical props which these groups need to support their devices and schemes.
There will be safeguards. It is for the judge to decide, not the Executive. Forfeiture may not be appropriate in every case. Anyone who has an interest in the property is to be heard before the judge makes the order. But if the judge comes to the conclusion on the whole of the evidential material before him that forfeiture is necessary and appropriate, he will have that power.
The provisions in the Bill relating to evidence, inferences and forfeiture extend to the whole of the United Kingdom. It is right to remind your Lordships that prosecutions for membership offences have been much less common in Great Britain. That will not necessarily change. But it is important to have the ability there if required.
Perhaps I may re-stress this point. The judicial process is paramount and remains such in all these changes. We are not taking emergency executive action. Decisions on guilt remain solely for the courts. I believe that to be a fundamental principle and one that we have adhered to. It is for the judge alone to decide on the weight he attaches to any evidence and how he makes his assessment of the quality of the evidence. The burden of proof remains on the prosecution throughout. The standard of proof remains the same—beyond reasonable doubt. We believe that we have to demonstrate—I hope we have—that the rule of law and our commitment to it is one of the significant differences between a principled democracy and an unbridled terrorism.
11 I repeat the Home Secretary's assurance that no prosecution will be launched without the personal sanction of the relevant Director of Public Prosecutions. I say that in particular in response to concerns which have been raised by the Law Society and the Bar in Northern Ireland. I repeat, if I may, that it is for the trial judge to come to his conscientious conclusion on his judicial oath. He will have to direct himself that the burden of proof is on the prosecution throughout, that the standard of proof is a high one, and if the standard of proof is not achieved, he will be obliged, on his oath, to return a verdict of not guilty.
The judges, the lawyers and the legal system in Northern Ireland deserve our congratulations as well as our support. I know only a little about the strain and stress which judges live under. They have discharged their duties admirably; indeed, I would say that they have done so nobly.
Let me offer an example of how this new provision might work in practice. I know that noble Lords—for instance, the noble Lord, Lord Holme of Cheltenham—have publicly raised a question or two about how things might be seen to work. I offer a scenario. There is a charge of membership. An officer of the rank of superintendent or above swears on oath—that is, does not deliver a certificate—his belief that the defendant is a member of a proscribed organisation which is specified. That is cross-examinable by or on behalf of the defendant and by the judge if he thinks it appropriate, and I expect that many judges would do. He may say, for instance, "My opinion is based on reports which have come from others", and that would be examined. Was it first or second-hand hearsay, and what was the virtue and value of the informant. The same officer may be able to say, "I also formed my belief because I saw this defendant at a distance at the funeral of a Real IRA man. I do not know what he said. He was at the graveside. The usual insignia were there—that is to say, the black berets and the black glasses. He gave the oration. But I do not know what he said".
"The defendant, X, following a murderous bombing, left home the next day and did not return for some weeks. We executed a warrant, on lawful authority, at his house. We found material there which in other circumstances would be objectively neutral. We found paint in his house, which is quite common. It can be bought at B&Q. But a speck of that paint was related by other evidence to an explosion which was carried out by the Real IRA. He had pegs which were used for detonators. He had rather a lot of alarm clocks of a similar type that had been used to detonate other explosive devices".
"When I asked him about his presence at the funeral and what he said in the oration, he refused to answer after being given access to a solicitor".
The defendant gives evidence at the trial and tells lies. The judge disbelieves him and concludes that those lies are designed to hide guilt; or he does not give evidence at all; or he gives evidence producing a completely different story that he never mentioned before.
12 I have put forward those examples because I hope they will be found to be helpful. I know that many of your Lordships sit judicially full-time and there are others of us who have sat judicially, and still do, part-time. If one were sitting judicially with that spectrum of assertion on oath, cross-examined too, and that gathering of inferences which could be legitimately drawn, I would say, and I maintain, that it is legitimate and proper to say to oneself, "The prosecution has to prove it beyond reasonable doubt. On this material, bearing in mind the seriousness of what I am doing, I record a verdict of guilt". I believe I can say to your Lordships that that is not a perversion of the rule of law but an example of the rule of law at work in practice to safeguard the lives of our fellow citizens. I stress again—because it is important—that this is the drawing of judicial inferences; namely, proper inferences from relevant questions. It is a difficult task and it is one that judges can discharge.
We have taken care to make sure that this Bill is consistent with our commitment to human rights and the particular requirements of the European convention. We have written into the Bill the necessary consequences of the judgment of the European Court in the case of Murray, where the court found that adverse inferences should not be drawn from silence prior to access to a solicitor. That is a safeguard which your Lordships see on the face of the Bill in subsections (4) and (5) of Clause 1 and in Clause 2.
I now deal with some other specifics. One of the matters which has been reasonably and properly raised is the questioning regime for terrorist suspects. We do not close our eyes to the fact that past miscarriages have sometimes arisen because of improper questioning. The present practice about audio recording in the United Kingdom is not uniform. Only in England and Wales are interviews routinely audio recorded. There is no legal requirement for that but it happens in fact virtually invariably. The United Kingdom is not obliged to have a regime of audio recording by any international obligation. I am happy to make it plain that in Northern Ireland there is no dispute as to whether interviews should be audio recorded. It is a legal requirement there because of the Northern Ireland (Emergency Provisions) Act 1998. The only question is how soon the system can be put into place.
The law requires a code of practice to be drawn up and for that code to be approved by Parliament after a period of public consultation. That takes some time. There are logistical and practical matters about soundproofing interview rooms to make sure that sound quality is good. Of course, one needs to make sure that the equipment is tamper-proof. That said, it is agreed now with the Chief Constable of the RUC that the process will be accelerated and that audio recording will become operational administratively even in advance of the code of practice receiving formal approval. Therefore, we accept, in summary, all the arguments for audio recording. We shall pursue the introduction formally of that recording in Northern Ireland with haste, but we have to bear in mind that the practicalities need to be got right as well. Audio recording is undoubtedly a very useful safeguard. It is a useful 13 safeguard for the accused. It needs to be carefully borne in mind that it is a dual safeguard for the honest policeman who is thereby protected from untruthful attacks on his integrity and honesty.
The solicitor's presence is another question. There is no statutory right in the United Kingdom for a solicitor to be present during interview. This matter will be explored as part of the Government's wider review of new counter-terrorist legislation. We have promised to issue a consultation paper this autumn. Practice varies. In England and Wales solicitors normally sit in on an interview. I repeat that the arrangement is purely administrative. In Northern Ireland each case is considered on its merits. I have mentioned the consequences of the Murray decision and I do not think I can assist your Lordships further on that matter.
Before I turn to Clauses 5 to 7 I shall touch briefly on some issues following the Omagh bombing. The first is the question of evidence obtained from interception—telephone tapping. At present there is a statutory prohibition in Section 9 of the Interception of Communications Act 1989 against using intercept material as evidence in court. Some of the intelligence which leads a police officer to assert his belief that someone is a member of a designated organisation may have come—and may in future come—from intercept material. It has been suggested—I recognise the force of the suggestion—that we ought in this Bill to have altered the law on intercept product. We understand that view. There are contrary views, including the risk of damage to operational effectiveness. There may also be difficulties in limiting changes to specific offences. We came to the conclusion that this Bill was not the occasion to alter the law on intercept. However, we acknowledge again the case for returning to this regime. Quite apart from anything else, we shall have to revisit the question because of decisions in the European Court. Electronic communication develops so quickly that we need to look at it in that light also.
The noble and learned Lord, Lord Lloyd, in his report made recommendations for a limited change and plainly we are considering that. My right honourable friend the Home Secretary announced yesterday that he had already initiated a comprehensive review of the interception regime earlier in the summer. He proposes to issue a consultative document on that subject also in due course.
Secondly, there is the question of even wider powers to confiscate the assets of terrorists. The Republic of Ireland is further ahead on that matter than we are. We think that any wider change should be looked at in the context of confiscation in the range of all criminal cases, not simply terrorist cases, because there is strong public feeling that often if you want to hit all criminals a useful starting point is to strip them of their assets which they may have acquired illegitimately rather than simply allow them to go to prison and then emerge to live on what most of us would consider enormous fortunes.
The third issue is the power of internment. The Prime Minister has said quite plainly that he would consider such a step if circumstances required it and if he believed it would be an effective provision. We do not believe that present circumstances oblige us to do that.
14 Conspiracy is dealt with in Clause 5 and subsequent clauses. These provisions are designed to close off a gap which has been recognised for some time in our response to international terrorism and other international crime. In our country it is not always an offence to conspire to commit criminal acts outside this country. This section of the Bill deals with those people who try to use our country as a safe place to plot the commission of terrorist offences or other crimes abroad. Terrorism and other forms of organised crime cannot be contained by a line on a map. Crime in one country is often instigated and planned in another. We think that there should not be a hiding place in our jurisdiction for terrorists, those who traffic in arms, drug smugglers, money launderers or counterfeiters. We have a tradition of tolerance in this country—I hope we have borne that in mind—but we do not propose to tolerate criminals who want to use our jurisdiction as a safe place for planning crimes abroad.
Some powers already exist in this field. Extra-territorial jurisdiction is available for some offences such as computer misuse and sexual offences against children. Other offences are covered, but only in relation to certain countries, under the Suppression of Terrorism Act. I give an example. If the recent murderous, terrorist attacks in Kenya, Tanzania and South Africa had been plotted and planned here and uncovered at an advanced stage of planning, the hands of our police would probably have been tied. I cannot justify that. We have thought about these provisions. I hope I may again quote the noble and learned Lord, Lord Lloyd, who said,The most significant additional measure which the Government can take is to amend the law on conspiracy so as to facilitate the prosecution of those who conspire here to commit terrorist offences abroad".A Private Member's Bill was introduced in another place in 1996 which would have criminalised conspiracy. It fell for technical reasons. We thought it was rather too widely drawn. Your Lordships will find no prohibition of incitement in this Bill. That is deliberate as we did not wish to interfere with a tradition which remains valid, noble and distinctive to our country; that is, that political dissent is important and should be allowed, even when it is disagreeable; in fact, particularly when it is disagreeable. We do not want a situation where people like Mr. Mandela, had he been a refugee in this country, would have been liable to prosecution simply for the offence of incitement, which is very widely drawn. We have included safeguards in Clause 5 and subsequent clauses. The principle of dual criminality—in other words, the conspiracy to commit the unlawful act—depends on the act being unlawful in the foreign country and also in our own domestic jurisdiction. As we proposed in Opposition, we have included a requirement for the Attorney-General's consent for prosecutions. As I said, we have covered only conspiracy to commit offences abroad and not incitement.
I am conscious of the fact that I have spent a little time seeking to explain the provisions of this Bill, not least because of the preliminary discussion we had in your Lordships' House today. We believe that this Bill 15 is a proportionate response to present dangers. I invite your Lordships in due course to give this Bill your support.
I deal finally with the question of review and renewal. Clauses 1 to 4 are temporary provisions. They will have to be renewed by Parliament every year after a debate in each House. The first debate on prevention of terrorism will be as early as March of next year and the second on emergency provisions will take place in June of next year. We are not talking about a long time. We accepted an Opposition amendment in another place—your Lordships will find this measure in Clause 8—which obliges the Secretary of State to lay before Parliament at least once a year a report on the working of the Bill. In any event our review of terrorism legislation will take into account the practical workings of the consequences of this Bill. I commend this Bill to your Lordships.
§ Moved, That the Bill be now read a second time.—(Lord Williams of Mostyn.)
§ 3.40 p.m.
§ Lord Henley
My Lords, I shall endeavour to be brief. However, despite the warning by the noble Lord the Government Chief Whip that we should try to restrict our speeches to eight minutes, I think I shall have some difficulty complying with his request. I imagine that that will be true of many other speakers. I must tell the noble Lord the Chief Whip and the noble Baroness the Leader of the House that we are in for what will be a pretty long session. We have some 39 speakers. We have some 48 amendments, and I dare say there may be more to come.
I start by joining the noble Lord the Minister and all speakers in another place yesterday in condemning on behalf of these Benches and the whole House the atrocity in Omagh on 15th August, one of the worst in all the 30 years of the troubles in Northern Ireland. It was made even worse by its timing. So many of us were hoping that we were beginning to see the end of violence and murder. I repeat what has been said by members of my party. We remain committed to the peace process and will continue to offer our support to Her Majesty's Government in all they wish to achieve in that respect. I also take the opportunity on behalf of these Benches of welcoming the release announced yesterday of Guardsmen Fisher and Wright. That was long overdue, as many in this House, on a number of occasions, have argued.
It is the atrocity of 15th August that brings us here today. The Bill is one of the Government's responses to that criminal act. I make clear, as did my honourable and right honourable friends in another place, that we support the Government in their attempts to defeat terrorism and find peace in Northern Ireland. But that support will not always be uncritical. The Government, as I think they would be the first to admit, have no monopoly of wisdom. But we believe that if we are to ensure that criminals such as the bombers of Omagh are not to achieve their aims, it is vital that we present a united front against terrorism.
16 We also believe, as the Government have made clear, that it is of great importance that Her Majesty's Government and the Government of the Republic of Ireland work together. We welcome the signs of ever-increasing co-operation between both governments and between the police forces of both countries and at all levels. For those two reasons we on this side of the House shall give our support to Her Majesty's Government to ensure that this legislation reaches the statute book. But it is important to make clear that we have misgivings and exactly what those misgivings are.
The first and most important misgiving relates to the process with which we are involved. As my right honourable friend made clear yesterday, and I think it was something of an understatement, this is not the ideal way of making law. We were first informed by the press last week—on Monday, I think—that Parliament was likely to be recalled. On Tuesday I was officially notified by my noble friend the Opposition Chief Whip that we were to be recalled this week, on Wednesday in the case of the House of Commons, and this House the following day. We then had further press comment on the likely contents of the Bill. We are now assured by the Minister that this was not government inspired and most of it was incorrect. I accept what he has to say.
On Wednesday of last week, as the noble Lord will appreciate, I spoke to his office to ask when the legislation might be ready and whether it would be possible for me to have sight of it in due course. At that stage, as the noble Lord will be aware, his office informed me that it did not even know whether it was to be the Home Office or Northern Ireland that was in the lead, though I understand from statements made in another place yesterday afternoon and from some remarks made by the Leader of another place that as early as last Wednesday the Liberal Democrat Party was certainly being informed of the general likely provisions of the Bill. I make the point only to indicate that I was not informed as to what were to be the likely provisions of the Bill.
We were also informed by the press at an early stage—I should welcome the comments of the Minister who is to reply—that a letter was sent to all Back Benchers of the noble Lord's party in another place explaining why such legislation was necessary. Again, I make the point merely that it was only Back Benchers of the government party who seem to have been the recipients of the letter. I certainly received no such letter although I would have greatly appreciated the chance to have some early idea of the Government's intentions.
The first I saw of the Bill, and this will be true of many others, was the draft that appeared on Tuesday. I think it was an early draft on Tuesday afternoon. Another draft appeared at 6.30 and was then republished with, I believe, some amendments, though I am not sure, the following morning. That same morning—yesterday—the noble Lord's office kindly arranged for myself and my noble friend Lord Cope to have half an hour with an official to be briefed on the contents of the Bill. But even at that stage the Home Office could give no guarantee that that was to be the final version of the Bill that was to come before another place at 2.30 that afternoon.
17 Another place debated the Bill and, as is proper, made amendments to it, finishing at something like six or seven o'clock this morning. It has sent the Bill on to us. We, in the course of this afternoon and what I can assure the noble Lord the Chief Whip will be a sitting that continues into the evening, night and possibly early hours of the morning, must debate the Bill, consider it in detail and make amendments where necessary. We must then send the Bill back to another place and possibly await its consideration of our amendments. All of this in under 48 hours for a Bill that most of us only saw late on Tuesday evening or early Wednesday morning. It is, to say the least, deeply unsatisfactory. Having made clear that we consider the process unsatisfactory, we must accept—precedents have been given—that there will be occasions when emergency legislation is necessary and when all the dangers attendant on such legislation have to be put to one side. We accept that on this occasion the outrage of Omagh and the desirability of keeping in line with the Government of the Republic of Ireland make it necessary for us to proceed with some speed. I just wish that the Government could have allowed us a little more time and provided us with a great deal more information at an earlier stage.
The Bill, as we have been informed, divides naturally into two parts. The first four clauses and Clause 8, inserted last night or in the early hours of this morning in another place, deal with terrorism and Northern Ireland and result, obviously, from the atrocity to which reference has been made.
The second half, comprising Clauses 5 to 7, deals with international terrorism. I wish to deal with those clauses first following on from my remarks about the undesirability of the process. My right honourable friend yesterday made clear that we support those provisions. They were the subject of a Private Member's Bill supported by us when in government which, for various technical reasons, as I think the noble Lord put it, and one might refer to them as technical reasons, failed to reach the statute book. We do not intend to oppose those clauses now. However, I make this clear. We do not see a case for including them in emergency legislation. It would not be right on this occasion to seek to delete them from the Bill as that might imperil the whole Bill. But we believe that they should be subject to proper scrutiny in due course. That is why we shall be seeking proper scrutiny at a later stage. I give the Government and the Minister notice that whenever they bring forward the next criminal justice Bill—I imagine that is not far off and that it is highly likely that there may be one next Session—we shall take the opportunity to give Clauses 5 to 7 the proper parliamentary scrutiny they deserve. That is the proper parliamentary procedure. It is no good saying, as the Home Secretary seemed to imply yesterday, that the provisions have been around for 18 months, had in part gone through another place as a Private Member's Bill and therefore did not need much further scrutiny as everyone was familiar with them. The provisions need and will go through the proper process if noble Lords can find the appropriate amendments during debate on the next criminal justice Bill.
18 I shall move a number of amendments later tonight to ensure that all three clauses cease to have effect next year, bringing in what one might call a sunset clause; or, like the remainder of the Bill, that they should be subject to renewal by the affirmative resolution procedure each year. I reserve further comments on those clauses to the Committee stage. However, many speakers this afternoon may have much to say on those clauses.
I turn now to the main part of the Bill, Clauses 1 to 4, and the new Clause 8, inserted last night by another place I believe as the last piece of business before the House adjourned as time was up. I have not read through the debates in Hansard of another place in great detail, but I think that I am right in saying that the provision was not discussed. Therefore it will be necessary for us to go through Clause 8 in some detail in Committee.
As my right honourable friend made clear in another place, we do not oppose what the Government are doing in their attempts to fight terrorism and to bring members of proscribed organisations to justice. I am sure that there will be a large number of questions as to the effectiveness of the measures. Those questions will be put no doubt by noble Lords from all parts of the House, even those sitting behind the Government Front Bench, and by those who are often far better qualified than myself to ask them. I hope that in due course the Government will answer those questions. I have to say this to the noble Lord, Lord Dubs: this is one occasion when we shall be grateful for full responses. The House will not be satisfied with the promise that responses will be made through correspondence later.
I have a number of brief questions that I wish to put at this stage. No doubt there will be more later. The first relates to Clause 1, and the policeman giving his opinion about who is or is not a member of a terrorist organisation. The Bill states that the policeman should be above the rank of superintendent. I shall be interested to know whether the police, including the Association of Chief Police Officers, were consulted, and what their views were.
Secondly, Clause 1(4)(a) deals with inferences being made as a result of the accused failing to respond to certain questions; in other words, he remains silent. What caution will now be given to the accused under that clause? The former caution that "Everything you say will be taken into account and may be used against you" will no longer be valid if his silence is also to be used.
Thirdly, I wish to probe the Government on the power to introduce internment. The Government desire to keep in line with the Republic of Ireland. I made clear that we agree with that. Foolishly, earlier in the year the Government removed the power to reintroduce internment. The Republic of Ireland is now introducing it. Why will not the Government consider doing the same? I appreciate that the Government may not wish to lose face by restoring something they removed only a few months ago. But when we are going to so much trouble to keep in with the Republic of Ireland—we debated these matters yesterday and do so today, the 19 same days that the two parts of the Irish parliament debate them—it seems extraordinary that the Government are not then prepared to follow suit on this occasion. If internment was ever to work effectively, it could work only if introduced on both sides of the border simultaneously.
I do not make a case at this stage for bringing in internment now. I simply say that the Government could have taken this opportunity to restore the power should they wish it alongside the Government of Ireland. I believe that they have made a great mistake in failing to do so, just as I believe that they made a great mistake in removing it some time ago.
Fourthly, the new Clause 8 was introduced last night in a hurry as an amendment by my party. We think that it could be improved further. We shall seek to do so at Committee stage. However, when the noble Lord responds, I should be grateful if he will say more about the review that will be conducted. Will it be an independent review? Who will produce the report? Shall we merely have an internal Home Office report or will it be one in which we can have greater faith—despite the faith I have in the Home Office—because it is independent?
That more or less completes my questions. Another came to my attention relatively late in the day. It relates to the comments of the Delegated Powers and Deregulation Committee published some time this morning. We should all be grateful to the Delegated Powers and Deregulation Committee for taking the trouble to consider the Bill in some detail. It is to be regretted that in the 39 minutes during which the noble Lord introduced the Bill, he made no comments on the remarks of the Delegated Powers and Deregulation Committee.
For those noble Lords who have not seen the committee's report, it turned to Clauses 5 and 6. As the noble Lord made clear, any prosecution under Clauses 5 and 6 needs the agreement of the Attorney-General. It was made clear by the Home Secretary last night. I think that most of us who heard the Home Secretary make that point were satisfied that the Attorney-General would be involved. Unfortunately—it was spotted by the Delegated Powers and Deregulation Committee and others—after the subsection which insists on the consent of the Secretary of State, subsections (6) and (7) of Clause 5 and paragraph (6) in Clause 6 overrule that and allow the Home Secretary to dismiss the need for having the Attorney-General's consent. As the Delegated Powers and Deregulation Committee stated, it can find no prior legislation where, the safeguard having been introduced, the Secretary of State is then entitled to dispense with it by secondary legislation. In the absence of the explanatory memorandum—in less pressing circumstances it would have been provided by the Government on the delegated powers in the Bill—we do not know why the power is sought. It may be that the Minister was able to give cogent reasons which override our present misgivings on the issue, but we think it right to draw these misgivings to the attention of the House.
20 It is important that we hear the Government's response to that point. I give an assurance that we have put down amendments to deal with that problem at Committee stage of the Bill. I hope that they will be given a sympathetic hearing by the Government when we deal with them.
Finally perhaps I may say a word about decommissioning and the release of prisoners. May we have a categorical assurance from the Minister, when he comes to respond—an assurance which my right honourable friend sought in another place, but an assurance that I am afraid he did not receive—that there will be no releases without progress on decommissioning? The two must go hand in hand. That is what seemed to be promised by the Prime Minister in May and that is what we want. I believe that that is what all the people of Northern Ireland and the rest of the United Kingdom want and it is what we deserve.
As I said, we support the peace process and wish it every success. We shall do what we can to assist it, and it is for that reason, despite the misgivings we have, that we shall support the Second Reading of the Bill.
§ 4 p.m.
§ Lord Holme of Cheltenham
My Lords, I start by thanking the noble Lord, Lord Williams of Mostyn, for his comprehensive introduction to the Bill this afternoon. I am duty-bound to make the position of these Benches clear initially before I raise one or two specific matters for the Government.
We intend to support the new anti-terrorist legislation in Northern Ireland as being both necessary and, generally speaking, timely in response to the murderous incident at Omagh, to which reference has already been made. But that does not mean that we do not have specific reservations, both in terms of process and substance, that we shall raise now and at Committee stage.
I was slightly concerned about the reference that the noble Lord, Lord Henley, made to the fact that the Liberal Democrats had been consulted over recent weeks about the response to Omagh in this legislation. It was certainly the practice under the previous government, which I am glad to see has been maintained by this one, that there was regular consultation between the Secretary of State for Northern Ireland and those spokesmen who deal with Northern Ireland matters. I welcome that. I do not see anything out of the way about it; and I am slightly puzzled that the Conservative spokesman for Northern Ireland did not have parallel consultations. Was he perhaps abroad?
§ Lord Cope of Berkeley
My Lords, if the noble Lord will forgive me, I was not abroad last week, except in the very early days. I came back in the middle of last week. I was not given the advantage of consultation until Monday evening of this week.
§ Lord Holme of Cheltenham
My Lords, I had in mind the noble Lord's colleague in another place, Mr. Mackay. However, having said that, we totally deplore the opportunistic tagging on to this Bill of 21 Clauses 5 to 7 which deal with conspiracy in the United Kingdom to commit offences abroad. That point was made earlier in the debate by the noble Lord, Lord Elton.
First of all, let me make clear the basis of our unhappiness with this component of the Bill. Of course, it is totally idle to pretend that there are not exiled groups in London plotting violent acts of terrorism against foreign governments and foreign parts. Of course, there are. It may well be that carefully considered legislation has become necessary in Britain in this small world where the sort of acts that we saw most recently in Cape Town threaten all of us. It may well be the case that such legislation is necessary. But not like this. The timing is disreputable. It is as if the Home Office thought that it could push through, in populist haste, something which requires careful consideration at leisure; not something that is cast so widely that it could destroy Britain's reputation as a home for liberal groups in exile from authoritarian governments; not something cast so broadly that it goes far wider than terrorism itself—and I hope noble Lords realise this.
The only possible justification for including those clauses in the Bill is that they are terrorism-related. The provisions range widely to cover potentially such issues as paedophilia or computer fraud. Those are bad things, of course, and matters which need action. But is it right to put them opportunistically, in a portmanteau way, in this Bill? It is not good enough. When the Minister replies perhaps he can tell us—this is the nub of the matter—whether Parliament would have been recalled for Clauses 5 to 7 alone. Would Parliament have been recalled? If not, why have they been slipped in now? It is bound to raise the unworthy suspicion that this is a sort of welcome back present for President Clinton on his visit today.
I dare say that it is possible, at the end of the very long day ahead of us, that these clauses will be passed into law along with the rest of the legislation. But does the Minister agree that the intelligence services, on whose verdict we shall depend heavily and maybe almost exclusively in these matters, should be subject to a stronger regime of parliamentary accountability? The record of the intelligence services, particularly regarding evidence leading to the detention of many Arabs during the Gulf War, was sadly off the mark in this respect.
That brings me to the main part of the Bill, the provisions dealing with residual terrorism in Northern Ireland, where I believe, with the Government, that it is important that we should act with full force and expedition. The Bill essentially covers two areas, evidence and the broadening of terms of evidence to make it easier to obtain convictions and confiscation of terrorist property.
There are a number of questions which I have asked myself, as I am sure have other noble Lords. First, is the legislation targeted at the would-be flouters of democracy and destroyers of the peace process? Is it closely targeted in the way the Government represent? I am bound to say that I think it is carefully targeted. But I have a question to ask the Minister: is he satisfied that 22 it will really pick out the planners, the godfathers, the directors of terrorism and not just the deeply foolish young men at their behest? The parallel legislation in the Irish Republic, discussed in the Dail yesterday, makes a point of singling out those who in future in those organisations direct acts of terrorism.
There is another question on the issue of targeting. The Minister outlined the four organisations which are both proscribed and specified. How do organisations now cease at some point to be proscribed and/or specified? I am thinking particularly of the LVF and INLA which have declared ceasefires. I accept that some time will be needed to prove their good faith. Is something more needed than time? What basis of review will there be to make sure that this list does not become a permanent one in the future, and that it is possible for those who once, like the Provisional IRA, followed terrorism to redeem themselves and return to peaceful paths?
Another question people are bound to ask is whether this is a proportional response to what we saw in Omagh. In the early days of discussion about the legislation there were worrying signals. At one time it seemed that maybe the mere signature of a senior police officer would do. I know that that would have been unacceptable to the noble Lord, Lord Williams, and I am relieved that it is not in the final legislation. Those sort of lettres de cachet would not be possible within the British system of justice, and I am relieved that the Government now require substantial evidence from police officers. In that sense I think it is a proportional response.
Perhaps one of the problems has been the over-heated language of both the Taoiseach and the British Government in their understandable anxiety after Omagh to show that we would not put up with the continuation of terrorism when they used the word "draconian". If one uses the word "draconian" in regard to legislation that is bound to invite suspicion from all those who are vigilant of civil liberties. The truth is that 80 per cent, of the legislation introduced by the Irish Government was merely catching up and coming into line with the legislation already in effect in the United Kingdom. We are now dealing with the extra part of the legislation that brings us into line with the Irish.
Although there are aspects (which I shall come to in a moment) that worry me, I do not think it is possible to say that the legislation is disproportionate either in regard to the confiscation of terrorist property or in regard to evidence needed to bring a conviction against someone who is a member of these organisations. Had it been draconian, I would have had a different view.
One question which we should all be asking ourselves is whether this legislation is in conformity with the European Convention on Human Rights. I am relieved that the Government have dealt with the problem which lawyers in your Lordships' House will know as the Murray problem. I refer to the judgment made against the British in the European Court of Human Rights in the Murray case, which essentially said that we could not continue to maintain a situation whereby a suspect could suffer from remaining silent and yet be debarred 23 from seeing a solicitor. The Bill rightly deals with that. It would be impossible to sustain the proposition that silence (in the absence of being able to see a solicitor) was in itself an indication of guilt. However, for me the question that then arises is: when will the Government act to remedy Murray across the rest of our emergency legislation? At the moment, there is a gross anomaly and we remain in breach of the European Convention on Human Rights.
I was glad that the Minister was good enough to give the House an indication of the way in which the evidence would work. That was helpful and I am grateful to the noble Lord for that. It was reassuring to hear the emphasis that he laid on the judicial process and on the fact that it remains intact.
That brings me to my final two questions on this. First, are there enough safeguards for what is undoubtedly a dilution of human rights and civil liberties? I refer first to the issue of audio-taping, which was discussed in another place yesterday and to which the noble Lord referred in his introductory speech. The position is becoming absolutely intolerable. If I recall this correctly, in 1996 this House passed legislation providing that the audio-taping of interviews should be introduced—yet we still do not have it. Why? Because the code of conduct has not been drawn up. It is high time that that code of conduct was drawn up. We do not have it because, "the equipment is not available". Somebody should go out and buy that equipment. There is nothing particularly mysterious about it. We do not have it because, "there are no sound-proofed cubicles available". If we are talking about a handful of suspects—the Government are talking about 10, 20 or 30 people at the most—at whom the legislation is aimed, one sound-proofed cubicle would do. May we have one now so that we can ensure that interviews under this legislation are conducted in such a cubicle? I should welcome an assurance on that.
There is also the question of renewal. I am glad that the Government have included that in the legislation and that, following yesterday's debate in the Commons, in Clause 8 the Government have now included a review of the legislation before renewal. That is extremely well advised. It will allay many doubts. We shall look forward to that review of this legislation.
The noble Lord, Lord Williams, also relied heavily on the larger review of all anti-terrorist and emergency legislation. We look forward to that. I hope that it builds on the work of the noble and learned Lord, Lord Lloyd, which I believe paved the way. However, when exactly are we likely to see the beginning and the end of that review? That is germane to the attitude taken to this legislation as a whole by a number of people both inside and outside this House.
My final point on the question of safeguards relates to confiscation. In one of the broadsheet newspapers the other day I read one of those leaders which so obviously infuriated the Government. It said something like, "There is no connection between money and terrorism". That could not be more wrong. There is an umbilical connection between money and terrorism. Indeed, I hope that one of the messages delivered to the President 24 on his visit to Northern Ireland today is that now is the very moment for the American public, government and administration to crack down for ever on those who raise money for terrorist purposes. I have no problem at all with the notion that there should be the confiscation of the money and other assets which represent the sinews of terrorism. However, when the Minister replies, I should welcome some indication of how far this goes. Are we really going to make homeless the families of members of such organisations? Are we going to take away their houses and farms? Will that help? In fact, would it not be counter-productive? What sort of assets is it envisaged will be forfeited under this legislation?
On the question of safeguards, I come to the issue raised by the Scrutiny Committee, to which the noble Lord, Lord Henley, referred. I too—I believe that my noble friend Lord Thomas has tabled an amendment on this—would wish not to have the Secretary of State able to overrule the Attorney-General in these matters.
The final question on such legislation is, of course: will it work? Here, there is room for honest disagreement. Some would say that any harsher legislation to try to identify terrorists might drive the sympathies of the public, and those with nationalist or republican sympathies, back onto the path of militancy. That is a matter of judgment. I do not believe that that is true of this legislation. It is carefully targeted. Furthermore, that view does not take any account of the fundamental change that has occurred in Northern Ireland in the past few months. It is difficult for us fully to come to terms with how different the situation in Northern Ireland is now as a result of the Good Friday agreement, the strong positive vote in the referendums north and south—and particularly the vote of between 94 and 95 per cent, in the Republic of Ireland, which has now said clearly that the status of Northern Ireland cannot change unless the people of Northern Ireland so wish it, and that that is the will of the people of Ireland and not simply of the people of Great Britain and Northern Ireland.
We have a different situation now. The two tragic events of the deaths at Drumcree and of the massive number of deaths at Omagh have, bitter as they were, borne positive fruit in that it is now clear that there is a great rallying of the whole community around the idea that there is an opportunity to do things differently.
I do not take the view that any longer we have nationalists shading into republicans, shading into militant republicans, shading into gunmen, ready to turn back to the path of terrorism simply because they do not like this Bill. I do not take that view. Indeed, I think it significant that in its statement the day before yesterday, Sinn Fein—and Mr. McGuinness in his announcement that he will be part of the disarmament commission—did not spend most of that statement attacking the legislation, as certainly would have happened six months ago. That is because they too know that we are now talking about only a handful of dissentients.
We must recognise the point about timing which has been made by several of your Lordships. It is a valid point. However, I would put it this way: I think that the 25 Bill is timely. I do not object to the timeliness of the Bill. I do not object to Parliament being recalled. It is timely that we have this Bill and it is timely that Parliament has been recalled. However, there may have been haste in the way in which this has been handled. Indeed, I think that there is evidence of that. It could have been done in parliamentary terms in a much more measured way. However, I certainly do not dissent from the fact that we need this Bill at this time.
One of the most preposterous of all press reports was made in an editorial in the Guardian which said that this legislation was wrong because Mr. Blair and Mr. Ahern, the Prime Minister and the Taoiseach, were too close to each other; they were buddies; that that meant that this was "buddy legislation" and that it was therefore wrong. I have never heard anything so preposterous. In the whole of the time that I have had the privilege of dealing with Northern Ireland matters in this House—that is, for the past eight years—and, I am sure, in the memory of this House, the great prize in Northern Ireland has been to get the British and the Irish Governments together, and acting together with a consistency of view on such matters. We have now achieved that—and that is worth a great deal of support.
§ 4.18 p.m.
§ Lord Molyneaux of Killead
My Lords, contrary to many views expressed in the other place, which have just been repeated by the noble Lord, Lord Holme of Cheltenham, I welcome Clauses 5, 6 and 7, dealing with conspiracy to commit offences outside the United Kingdom. It may be that the methods suggested and employed in the Bill are not perfect, but perhaps we shall return to that point on another day. The late Enoch Powell, serving on a committee on the Prevention of Terrorism Bill, some two decades ago, persuaded the government of the day to extend the scope of what became an Act well beyond what was seen at that time and referred to always as "Irish terrorism" within the United Kingdom; and Clauses 5 to 7 constitute a logical extension of that good work.
I welcome the assurance given by the noble Lord, Lord Williams of Mostyn, that the Government will press on with the review currently under way so that at least, when we come to the promised review of that legislation, we shall have a clearer view on that particular issue.
The fact that terrorism had become an international affliction was clear to me some 10 years ago when checking in on an internal Australian flight at Perth airport bound for Melbourne. I had complimented the chief security officer on the rigorous scrutiny of passengers and baggage. I asked if that was in response to any specific recent information or alert. I remember the officer's words because they struck me as very worrying. He said, "Oh no, this is going to be a permanent feature of air travel because we have to recognise that the jumbo jet is the most vulnerable target in modern society". That was many years before Lockerbie.
Over the past few days there have been discussions over the definition of "terrorist". It has been claimed that one country's terrorist has been another's freedom 26 fighter. I seem to remember in a recent government document—it may have been a Bill—that a terrorist was described as,one who puts the public in fear".In the absence of a better description, I would settle for that.
I turn briefly to Clauses 1 to 4. I am impressed by assurances that these measures should not be regarded as breaching the Good Friday agreement. We have thus moved on from the debates in your Lordships' House in which many of us participated in the months of June and July when we were warned repeatedly that, for example, a tiny amendment designed to change "may" to "shall" would seriously damage the Good Friday agreement and—I use the phrase employed more often than not—would send out the wrong signals. It was not very clear to whom the signal was being sent but I presume that it was the wrong signal sent to all those who voted for the agreement. Perhaps the parliamentary draftsmen of this legislation were not really aware of the enormity of the dangers inherent in changes such as those in the "may" to "shall" category.
Clauses 1 to 4 deal almost exclusively with the published list of proscribed organisations. I presume that if the main terrorist contractor—namely, the Provisional IRA—now decides to follow Sinn Fein in taking preliminary steps in the direction of decommissioning, and given the joint membership of the Army Council of Sinn Fein/IRA, surely an order from that body—consisting of both elements—would be obeyed and all remaining terrorist capacity would be dismantled without anyone daring to question their authority as they still have the means of enforcing that authority.
However, in addition to the so-called dissident bodies on the proscribed list, it will remain operational and will retain its capability to extract continuous concessions, as it has done in the past two years. I caution against referring to, for example, the Real IRA as a dissident rump of about 90 members and not worth worrying about. I remember very well the insistence of General Grivas of Cypriot fame that an effective terrorist movement should never exceed 200 people because, if that were to happen, the movement was more easily penetrated by opposition and intelligence, and there were problems of internal security, administration and logistics. Therefore, let us take no comfort from the fact that the Real IRA may number only a tiny rump of 90 because that organisation can be every bit as deadly as the body to which it formerly belonged and to which it may still have certain affiliations.
With regard to the proscribed list, the membership consists of terrorist groups who have identified themselves by claiming what they regard as achievements; namely, a murderous campaign. That is indiscriminate slaughter which puts the public in fear—and I come back to that phrase.
I mention fear. I am in fear because I am concerned by the existence of an unknown body to which almost 70 per cent, of the Provisional IRA's mechanisms and munitions have been quietly transferred since 24th July of this year. Those transfers continue as we deliberate here today. Despite all the efforts of the intelligence 27 services throughout the entire British Isles, the structure of the new body has not been penetrated or identified, nor has the identity of its members or approximate locations. It does not appear to be its intention to become involved and active until the early part of next year, by which time its striking power may surpass anything which has gone before.
Soberly, with that knowledge, I cannot regard the Bill before us as totally adequate to contain or resist such a threat. I trust that the two Governments will act on the best advice available and act appropriately and as quickly as possible in the new Session. I trust that Her Majesty's Government, who after all have the main responsibility, will now give careful consideration to permanent and effective means of eliminating all those who specialise in putting the public in fear by all manner of horrifying methods.
§ 4.26 p.m.
§ The Lord Bishop of Hereford
My Lords, before I make my own brief remarks, I have been asked to pass on to your Lordships the apology of the Archbishop of Armagh, the noble Lord, Lord Eames. He is extremely sorry that he cannot be with us this afternoon. I know that we should have greatly valued his presence and contribution to the debate. However, as your Lordships will know, he has to receive President Clinton in Armagh today. He hopes that your Lordships will understand the importance of that event.
I rise to speak in this debate with the utmost diffidence, conscious of the vast range of experience in your Lordships' Chamber in working to bring about peace in Northern Ireland and the enormous amount of legal wisdom present, none of which I share. But I am extremely glad to have the opportunity to express from these Benches our sense of horror and outrage at the wicked act of terrorism committed in Omagh; our deep sorrow for the victims, the dead, the injured and bereaved; and to praise the way in which the community responded. The peace process has, thank God, been strengthened rather than weakened by that dreadful act. I rejoice that the Churches have worked together in unity across denominational differences and I am indeed grateful that some good at least has come out of that great evil. I want to express my immense gratitude to all those who have worked faithfully and courageously and with such perseverance for the cause of peace in Ireland for so many years.
On these Benches, we understand the Government's desire to take all possible steps to identify and arrest those who belong to the small terrorist groups who still seem to be wedded to the way of violence. We welcome the seriousness and the urgency with which the Government have reacted to the tragedy in Omagh. We recognise the rightness of recalling Parliament. We welcome the assurances that have already been given that the judicial process will remain paramount.
However, there are still important questions to ask. Some have already been asked and no doubt others will be asked several times in the course of the debate. There are legal, political and ethical questions. Are the 28 proposals good law? Are they workable, practical and credible? Are we asking or expecting too much of the judges who will be asked to administer this legislation? Are Clauses 5 to 7, which are directed against those who conspire in this country to commit acts of terrorism abroad, fully thought through? Those questions have already been asked and I am sure that they will be asked again.
If these proposals, particularly those in Clauses 5 to 7, reflect "long-held plans", in the words of the Prime Minister, why have they been rushed through Parliament at this particular moment with so little time for consultation? Does not the provision that the Home Secretary can set aside the need for the consent of the Attorney-General open up the possibility of dangerously unpredictable and potentially unwise political interference in judicial processes? If these provisions had been on the statute book in the 1930s, say, how many refugees from fascism might have been their unintended victims if such people had been working to subvert or overthrow the evil regimes from which they had fled, not all of which were unelected?
There are legal questions here which those in your Lordships' House are much better able to ask and answer, but they concern us on these Benches.
Further, are these proposals politically wise? Granted the track record of mistakes and miscarriages of justice in the wake of previous hasty legislation, are we as certain as we can be that there is no avoidable risk of innocent people being wrongly accused and convicted, of more martyrs being created in Ireland and new divisions opening up just as the communities have begun to come together tentatively but with hope in the way that we have longed for, prayed for and worked for over decades? Steady peacemaking and careful confidence-building is the most certain way of isolating violent extremists. I question whether this legislation may unintentionally disrupt that process. I hope and pray that it will not but that is a real risk.
There are also ethical questions about human rights and civil liberties. I have no quarrel with the sensible proposal that the assets of convicted terrorists should be seized. I entirely agree that for too long criminals have endured a period of punishment and then enjoyed their ill-gotten gains. It may be right in the case of terrorist suspects to draw certain inferences from their silence, but I want to be assured beyond all reasonable doubt that the new proposals are compatible with our existing care for human rights and civil liberties and with those shortly to be enacted by the incorporation into United Kingdom law of the European Convention on Human Rights. The noble Lord, Lord Williams of Mostyn, said that that was so. Human rights legislation is immensely complex. I would be grateful to receive further elucidation in this difficult area.
I make two final points. First, should not these provisions have a fixed time limit? I am grateful for Clause 8. The Irish Government have suggested that they should be of limited duration. The noble Lord, Lord Williams of Mostyn, has also said that the Government will review the provisions. However, like other noble Lords, I wonder whether we need something that is 29 clearer and more radical than what is implied by Clause 8 as it stands. Would not the interests of suspected terrorists, and more importantly the interests of justice, be better served by a provision that all police interviews should be video-recorded as well as audio-recorded? I am grateful for the statement by the noble Lord, Lord Williams of Mostyn, that some progress is being made in the area of audio recording, but I am alarmed to discover how slow it has been. I share the real concern of the noble Lord, Lord Holme, that this process is still not in place two years after its introduction in principle. I urge that the next step be taken of video-recording, which can be even more valuable in revealing the body language of those who are speaking, or not speaking.
We are dealing with proposals and practices which may be necessary. Like most noble Lords who have spoken already, I believe that they are necessary. I am sure that these proposals will win the support of most Members of your Lordships' House, but they are fraught with danger. I hope that the few questions that I have posed and the many others that I am sure will be asked in the course of this debate will be answered convincingly by the noble Lord, Lord Dubs.
§ 4.34 p.m.
§ Lord Mishcon
My Lords, one of the advantages of listening carefully to previous speakers in debates in your Lordships' House is that one can avoid boring noble Lords by repeating questions and points already made. As a result, I can inform my noble friend the Government Chief Whip that I shall not bore your Lordships for anything like eight minutes.
I believe that I am the first lawyer to address your Lordships in this debate. Perhaps I should say that I am the first inferior lawyer to speak in this debate. Your Lordships will agree that no lawyer is worthy of his profession unless he is a fierce defender of civil liberties and human rights. But occasions arise in the history of any nation when emergencies require one to make the normal the abnormal in regard to principles that are otherwise very sacred. I believe that we are in that position today, as was the other place yesterday.
In Omagh, rightly mentioned so often by previous speakers, there was a declaration of war against human decency, the democratic process and the achievement of peace. In a state of war one must do the abnormal in the administration of justice and the making of legislation. For that reason, looking at Clauses 1 to 4 of the Bill, I wholly support the Government. For another minute or so I shall concentrate only on what I readily admit are minor matters. However, I believe that they should be looked at so that we are sure we are giving every opportunity for justice to be properly administered in spite of the legislation we are about to pass.
The noble Lord, Lord Holme, referred to a particular decision in which we had been found wanting; namely an accused had not been given the proper opportunity to consult a solicitor. The necessary provision has been made in this Bill. I am talking only about a minor matter but a major consideration in the administration of justice. My colleagues tell me that all too often in 30 criminal cases inadequate facilities are afforded to solicitors who try to interview their clients either at police stations or in prison. All that is provided for here in legislation, properly so, is the ability to consult. I ask my noble friend, who gave a masterly introduction to the Bill, or my noble friend Lord Dubs, who is to reply, to say that this House can be satisfied that there will be notification to prisons and police stations both here and in Northern Ireland that adequate facilities both in time and room space will be made available when this Bill becomes law and this subsection becomes effective.
I shall not repeat what the noble Lord, Lord Holme, said having already promised not to do so. The noble Lord emphasised one point in regard to audio recording. As my noble friend said in his opening remarks, it is a protection for the honest police officer as well as for the accused. With great respect, I, too, see no reason why, if we are dealing with an emergency, we do not use emergency powers and duties in seeing to it that, before the Bill becomes effective by any arrests or prosecutions, we have an assurance from the Minister that there will be no conduct of proceedings by way of questioning and interviews unless and until audio equipment is available and in use.
Finally, I know that noble Lords will pass this legislation in the hope that it will work justly and will be effective but just wondering whether human administrators will carry out the provisions of the Bill as they should. I am therefore slightly puzzled—I am sure it is my fault—as to when a report will come before Parliament on the workings of Clauses 1 to 4. I was confused—I repeat, I am sure it is my fault—by the reference to a review of anti-terrorist legislation as a whole.
I believe that today this House has a specific duty to ask the Government—and it needs no amendment of the Bill—to undertake to provide a report at the end of six months so that Parliament may know exactly how the Bill is working, what prosecutions have been brought and what has happened in regard to the evidence of police officers under the provisions of Clauses 1 to 4. That would mean that we should go to bed in the early hours of the morning (it will not be earlier than that) with a clear conscience.
§ 4.42 p.m.
§ Lord Mayhew of Twysden
My Lords, so many noble Lords wish to speak in this important debate that I shall confine my remarks to a single but most important point. It concerns the matter alluded to by the noble Lord, Lord Mischon, in his concluding remarks. The noble Lord always speaks with such authority and humanity that it is a great privilege to follow him. I refer to prosecutions for membership of a specified proscribed organisation and the changes to the law of evidence contained in Clauses 1 and 2.
By way of preface, I acknowledge that the Government came under overwhelming pressure as a result of the disgusting atrocity in Omagh to come forward with legislation. They were right to do so and they have my support. I also wish to acknowledge with gratitude that, throughout the years when we tried to 31 cope with these matters, for which I had responsibility, we generally received strong support from the then Opposition, although they took the view that the renewal of the emergency provisions Act should be opposed year on year because it provided for a continuation of the power to detain.
It is good that the Bill contains a power for the court to draw inferences from silence in the circumstances set out. The provisions for arrest and extending to Northern Ireland the powers of arrest available to police in England and Wales are right. The provisions for forfeiture are good. The provisions for planning overseas offences, although they need to be carefully examined, are also good. I agree also with the remarks about the importance of audio recordings.
I believe—and I recognise that in this I am likely to go against the tide of opinion in this House—that in respect of Clauses 1 and 2 we are invited to make law which may turn out to be dangerous and therefore bad law, and for a purpose which will probably not be achieved in practice. I also believe that the Bill denies us the opportunity to make good law; that is to say, to reverse the decision taken by the Government, unwisely, earlier this year to remove the power of executive detention or internment from the statute book.
The provisions in question permit a court to hear evidence and admit it as evidence of the matter stated in the form of an opinion by a senior police officer given orally on oath that the accused is a member of a specified organisation or was so at a material time and to rely on that evidence, although not solely, so as to convict the accused. What additional evidence must be given or would be sufficient is not specified in the Bill. I do not believe that judges—at any rate in Northern Ireland, where they sit alone as judges of fact as well as law—ought to be put in that position. It is a dangerous position. It comes close to inviting them to approach the issue of guilt or innocence in a way that is not wholly judicial. They will be required to decide judicially on the basis of a senior police officer's opinion the issue of guilt or innocence when they will often not have had the basis for that opinion spelt out in cross-examination. In some of the instances given by the noble Lord, Lord Williams of Mostyn, that will not be the case. But one can easily envisage cases in which a senior police officer will say, "I am not at liberty to disclose my sources, but what I have learnt from my sources shows me that this is a member of a specified organisation." That may very well be the case when the accused will have denied the accusation against him from the outset, so the important new power to draw an inference from silence will not be available; it will not arise.
So what is the judge to do? What is he to make of the circumstance in which the senior police officer says, "This is my opinion", and the accused, of whose background under our system the judge knows nothing, says, "I deny it." It is very difficult to see what a judge can do. It is said that in justification of this process there must be some additional evidence. That would be better than its working solely on the say-so of a senior police officer. I thought that the illustrations of evidence given earlier by the noble Lord, Lord Williams of Mostyn, 32 would in each instance probably have been enough to sustain a prosecution on their own account, standing alone as it were.
One can visualise other scenarios; they are less compelling, but no guide is given as to what shall be sufficient. It might be said that if the accused were seen attending a paramilitary funeral, which might be one of hundreds, that would be sufficient. Yet one has only to pose that possibility in the circumstances of Northern Ireland to see how it could create injustice. It is my belief that people ought not to be able to be convicted on hearsay evidence backed by straws in the wind. A judge could prefer the evidence of a senior police officer simply because he was a senior police officer. That would be human, but not exactly judicial. On the other hand, if a judge declines to convict, he may foreseeably come under strong, vociferous criticism for not, as it would be said, having done his duty and followed the opinion of a senior police officer.
I have my eye on the clock and therefore wish to say no more about this matter except that I take comfort from the review proceedings to which the noble Lord, Lord Mishcon, alluded in his closing remarks. Before very long—I am not sure how long—there will be an opportunity to review how these clauses have worked. That is important for the reasons I have tried to give. I do not mind saying that throughout the years when I had responsibility for Northern Ireland and also had the honour to be Attorney-General before that, we considered time and time again introducing a provision of this kind. We always declined to do so for the reasons I have tried to explain.
Lastly, I warmly agree with the criticism already brought forward about the provision for the Home Secretary to be able to overrule the refusal of the Attorney-General to certify that it is a proper case for a prosecution to be brought on the second limb of the Act; namely, the conspiracy to commit an offence overseas. I find that quite extraordinary because the Attorney's fiat is introduced only in order to secure that the public interest be safeguarded. The Attorney-General is constitutionally the guardian of the public interest. If, having declined to do so, the Attorney may be overruled effectively by the Home Secretary, we have come to a pretty pass.
§ 4.50 p.m.
§ Lord Wallace of Saltaire
My Lords, I shall not deal with Clauses 1 to 4. I wish to focus primarily on Clauses 5 to 7 and in particular Clause 5, on which there was the deepest discontent in the other place. My party wished to divide the House against its inclusion but was prevented by the lateness of the hour after six o'clock in the morning. Here, unlike in Clauses 1 to 4, there is a remarkable looseness of language and a lack of focus and much less justification for urgency. This set of clauses, as the Prime Minister argued in another place, had been on the stocks for some time. It was found convenient to rush them through the House without appropriate scrutiny.
There is a real and serious problem of exiled groups in London sponsoring violent acts in other countries. We do not want to see Britain become a safe haven for a 33 mass of exiled groups plotting the violent overthrow of their governments or, worse, sponsoring international terrorism in third countries.
But there are delicate issues of foreign policy involved here. The majority of states in the world are not democratic. Many are authoritarian, some are worse than authoritarian. Necessarily, in this imperfect world, Her Majesty's Government maintain friendly relations with many states at whose internal regimes we hold our nose. Sometimes those regimes change or collapse. It is in the interests of Her Majesty's Government to maintain contact with opposition groups. It helps sometimes if those exiles have been in western countries rather than in other less sensible countries where influences would be of a different kind. I am reminded of the example of the Iranian revolution where the British Government, along with the Americans and others, had put all their confidence in the Shah's regime and were thereupon faced with a change of government to a revolutionary organisation with few previous contacts with the west.
I am worried about the loose definition of international terrorism which the Prime Minister and others have adopted; looser talk about world terrorism, as if it were a single transnational movement or, as the Prime Minister remarked,the international battle against … international terrorists and their supporters".—[Official Report, Commons, 2/9/98; col. 695.]There is a discourse within the United States which implies that international terrorism is a single movement. It corresponds with the concept of rogue states, of Moslem fundamentalism and of state sponsorship of terrorism. That is caught up with the problems of America's Middle East policy. One has to recollect that the grievances which provoke Moslem terrorism are fuelled by the collapse of the peace process between Israel and Palestine, by the stationing of US forces on the ground in Saudi Arabia—a matter of much offence to many people in Saudi Arabia—and other matters. The lesson of Northern Ireland, after all, is that the answer to terrorism cannot be purely repression; one has also to deal with the causes.
However, there are many other aspects of transnational opposition, violent or non-violent, to other repressive governments not involved with the Middle East issue. In some instances, the British Government have in the past supported exiled groups which have been involved in violent resistance to their home governments.
I worry in particular about the statement in new Section 1A(12) in Clause 5 concerning the immateriality of whether or not people involved in these offences are British citizens. In this country we pride ourselves on our multi-ethnic society. There are many children of Nigerian parentage in the school which my children have been attending. Nigeria is not one of the world's most democracy friendly regimes at present. There are also substantial Ghanaian, Somali and Sudanese communities. We, of course, have had problems with the involvement of members of the Sikh community in Britain who are British citizens in plotting against the Indian Government. We also have a Sri Lankan community, and Kashmiris, Pakistanis, Yemenis, 34 Palestinians and Kurds. After all, the British Government sent military forces to provide safe havens for Iraqi Kurds in Northern Iraq, so perhaps to some extent we approve of the opposition of Iraqi Kurds to their government. But of course we also have in this country a substantial number of Turkish Kurds. This legislation seems to me to leave it open to the Turkish Government, a fellow NATO member and a friendly state by any definition, to bring substantial pressure on the British Government to restrict the broadcasting activities of exiled Kurdish groups in London. With the looseness of the phrase in subsection (11) that "a message" is to be treated as an action, together with broadcasting and campaigning, the boundaries of opposition seem to me to be drawn thinly.
Therefore, it seems to me that we must ask ourselves seriously whether Clause 5 should be struck from the Bill. If that is not to be the case, I reiterate what my noble friend Lord Holme of Cheltenham said in his opening speech. We wish to ensure that the evidence from our intelligence services on which the Government will have to depend is subject to much stronger parliamentary scrutiny so that we are not bounced by unaccountable services and pressure from other governments into actions which we may well regret in the future.
I hope, therefore, that we shall not reach the amendment of my noble friend Lord Avebury to Clause 5 too late in the morning. I encourage as many noble Lords as possible to stick it out until that hour.
§ 4.57 p.m.
§ Lord Lloyd of Berwick
My Lords, I thank the Minister for what he so kindly said about my report. He will not need me to remind him that it was the party of which he is a member that over many years pressed patiently for a review of counter-terrorism legislation of the kind which I tried to carry out. I remember well the occasion when he came to a meeting, accompanied by the present Home Secretary and the present Secretary of State for Northern Ireland. I hope he will confirm that it was a most amicable meeting, which may perhaps explain the kind words that he used. I agreed in advance with everything he wished me to put in the report and everything he wished me to keep out of it.
I start at the end of the Bill and work towards the beginning because it seems to me that it is Clauses 1 and 2 which may give rise to concern. Clause 5 creates a new offence of conspiracy to commit a criminal offence overseas. I welcome that clause. I could hardly do otherwise because it was a provision which I strongly recommended in my report. However, I was careful to confine my recommendation to terrorist offences committed abroad. International terrorism is an international scourge and deserves to be met with an international response, which has been my purpose. I am not so sure whether the clause should be extended, as in the Bill, to offences of other kinds. I need not take up time with that now. The clause has nothing to do with recent events in Northern Ireland and it is surprising to find it in the Bill at all. It is much more to do with the bombing of the United States embassies in Dar es Salaam and Nairobi. We are given to understand that 35 the inclusion of this clause has nothing whatever to do with the arrival of the President of the United States in Belfast.
It is right that the clause is not retrospective. It is the only part of the clause which I can understand. The clause is extraordinarily obscurely drafted. For those who take a pleasure in these things, I recommend that at some other time they look at subsection (6), which is a gem of its kind.
Clause 4 is a good clause as far as it goes but it only touches on the problem of terrorist finance. A power exists to confiscate, but it is limited to a very narrow range of offences. It is sensible to extend that power to include those convicted of belonging to a proscribed or specified organisation. I would extend the power much further to include all terrorist offences, not just this one.
I am not so happy about Clause 4(3)(b). Let me take a concrete case, which always helps. Let us suppose that after conviction a defendant is found to have £1,000 in his bank account at the time of his conviction. Suppose he then says, as he no doubt would, that he always intended to spend that money on his mother-in-law or to save it up for his old age or whatever. How is the judge to decide that sort of question, even on a civil burden of proof? I may have misheard the Minister but it is not the case in every provision that the burden of proof under this Bill is beyond reasonable doubt. The burden here is only a civil burden of proof. Judges in Northern Ireland will have great difficulty dealing with that provision because of the way in which it is drafted—it is very, very vague.
I would have preferred the provision to have been the other way round and to have concentrated on the origin of the money in question and not on the purposes for which it may or may not be used. That is what I had in mind when I wrote my report. That would be much more likely to result in sums being confiscated. This way round, we will get very little indeed. Let me put it this way: all sums found in the possession of a convicted defendant at the date of his arrest should be subject to confiscation unless he can prove that the origin of the money is innocent. That would be a much more effective provision than the one proposed.
I would couple that power with a restraint order. The moment any terrorist is interviewed, the money will obviously go straight out of his account. A restraint order could be obtained ex parte in advance, so that if a defendant is convicted, the money would be there and could be confiscated. Clause 4 only touches on the point once he has been convicted of being a member of a proscribed organisation.
I fear that I am not going to finish in anything like the time which has been allowed. I am entirely in your Lordships' hands.
Clauses 1 and 2 are obviously intended as a response to the tragedy in Omagh. As we all know, that is why we have been brought back. There was much talk at that time about tough new measures which would be introduced to catch the bombers. That was natural enough. If the Bill had contained the provisions that we were led to believe it might, whether rightly or 36 wrongly—the Minister says wrongly—indeed it would have been a very tough Bill. The Bill before us is quite different. Despite what has been said about it containing these tough new measures, I have grave doubts whether it will have any effect at all. It will have no effect at all in convicting those who actually took part in planning the Omagh bombing because, quite rightly, this power is not retrospective.
I go further than that. Even if this Bill had been in force before the Omagh bombing, I very much doubt whether it would have added anything to the chances of convicting those who were responsible for that outrage. The fundamental problem for the administration of justice in Northern Ireland—which is all I am entitled to speak about—has been the same since the troubles started in 1972. It has often been said that the police know very well who the terrorists are. I believe that that is true. It is truer now than it was in 1972. The police have a multitude of different sources from which they can draw; they have informers, undercover agents, and so on. It is always asked: why, if they know who the terrorists are, do they not arrest them? The answer is that of course from time to time they do arrest them. The police are quite entitled to arrest them if they have a proper suspicion that they are members of a criminal organisation. They are right to arrest them and to interview them at length in the hope of obtaining a confession.
If, at the end of the day—having arrested them and having not obtained a confession—the police do not have the evidence on which they can be charged and convicted, the only thing that the police can do is release them. That is the difficulty. The leaders of these terrorist gangs could only be convicted on evidence of a kind which ought to be given but cannot be given because those who would give that evidence would be putting their lives in danger. That is the difficulty. You simply cannot get the evidence to convict these people in the ordinary way in the course of an ordinary trial. That is the dilemma. It has been the same for the past 25 years.
I appreciate the pressure of time but I hope that your Lordships will forgive me if I just read one sentence from the report of Lord Diplock, which led to the Diplock Court being instituted 25 years ago. Lord Diplock considered all kinds of ways in which one might get out of this dilemma. He considered changing the rules of evidence. He considered changing the rules of procedure. He considered the very same proposal as we are considering today of admitting opinion evidence from a police officer. But he said that it would not work. In paragraph 27 of his report he stated:We are thus driven inescapably to the conclusion that until the current terrorism by the extremist organisations of both factions in Northern Ireland can be eradicated there will continue to be some dangerous terrorists against whom it will not be possible to obtain convictions by any form of criminal trial which we regard as appropriate to a court of law".That is why we were driven 25 years ago to an extra judicial remedy. That is why we were driven to detention without trial, which is commonly known as internment. That is the dilemma. How, one now asks, does the present legislation overcome that dilemma? Have the Government really found a solution, 37 something which has eluded everyone else for the past 25 years? If they have, they are indeed to be congratulated. But is it so?
Clauses 1 and 2 contain two elements. The first is that the opinion of a police officer that a defendant has committed a crime will be admissible in evidence. On its face, that in itself is a very, very odd provision. In a normal criminal trial a policeman is called to give evidence of fact and not opinion. A police officer is called to say, "I heard a bang. I saw the defendant with a gun in his hand". That is fact. He would never be allowed to go on to say, "and in my opinion, he is guilty of murder". One can almost imagine the scene in court. It would be worthy of an H. M. Bateman cartoon if that is what he said. That is why this is a very odd provision. It is not for a policeman to express an opinion. It is for the jury to say on the facts which the policeman has put before them whether, in the jury's opinion, the defendant is guilty or not.
However, I will put that oddity on one side because these are not normal trials. I will ask instead the simple question: will it work? Here I found myself very much in agreement with what the noble and learned Lord, Lord Mayhew, said a few moments ago. I just do not see how it could work. A police officer's opinion of anything is worth only what his sources will support. If he simply says, "This is my opinion", that is worth nothing in a court of law. It is worth something only if he can support his opinion. But that of course is exactly what he cannot do. His opinion is based on sources—informers and so on—of a kind which he simply cannot disclose in open court. All he can say, which is what police officers always do say, is, "We have the information from a trustworthy and reliable source". Obviously, he cannot reveal those sources. Where does that get the trial? I go further than my noble and learned friend. No judge in Northern Ireland—no judge anywhere in the world—will be convinced beyond reasonable doubt on the say-so of a policeman. How could a judge be convinced by such evidence unless he can get at the basis on which the opinion is expressed? That, of course, is exactly what he cannot do.
We can make the evidence admissible by a stroke of the legislative pen—that is what we are doing—but what matters is whether that evidence will carry any weight on the ground in actual trials in Northern Ireland. I can tell the right reverend Prelate who spoke earlier that it will carry no weight whatever. It seems to me that with this last-minute amendment the Government have perhaps begun to realise that that is so. New Section 2A(3)(b) now says—it came in only at the very last moment—that the accused shall not be committed for trial on the basis of an opinion expressed by a policeman. If he cannot be committed solely on that, how can he possibly be convicted? That is why I say that there will not be any convictions as a result of new Section 2A.
However, let us suppose that there could be convictions. Let us suppose I am wrong. Let us suppose that there is some other evidence. To take the example given by the Minister, let us suppose that a judge was persuaded beyond reasonable doubt to convict on the basis partly of an opinion expressed by a police officer. 38 Would that conviction have the slightest chance of standing up in Strasbourg? Here I answer the right reverend Prelate. It would not have the slightest chance. It certainly would not stand up in our courts once the Human Rights Act comes into force. So we are doing absolutely nothing by this. We will not get a conviction; and if we did get a conviction based in part on an opinion which had not been cross-examined, it would not begin to stand up in our own appellate courts or in Europe.
The Minister said that the defendant's counsel could cross-examine the policeman who expressed his opinion. But where will that get him? He can cross-examine the policeman up hill and down dale but he will not get any further. The man he wants to cross-examine is the man who informed the policeman that he was a member of the organisation. That is the person he will not be able to cross-examine and that is why no conviction based even in part on the opinion of a police officer which has not been tested in cross-examination stands a chance of being upheld.
I can say exactly the same about the other element that is introduced; the element of relying on an inference to be drawn from some fact which has not been stated. Where does that get anyone? I take again a concrete case. I take the case of a police officer who believes someone to be a member of the Real IRA and believes that he attended a meeting of the high command of the Real IRA on the night in question. He examines the man and he asks him questions. The man, having had advice from his solicitor, will say, "No, I am not a member of the IRA and I did not attend that meeting". Let us suppose that the case then goes to trial. The terrorist says, "I am not a member of the IRA and I did not attend a meeting. In fact, I was somewhere else that night". He goes on to say that he went to a pub, he went to the cinema, or he stayed with his aunt. From that, an inference could be drawn. But who believes for one moment that that is what the terrorist will say? Of course he will not. He will go into the box and when cross-examined he will say, "I am not a member of the Real IRA and I did not attend the meeting that night"; and the trial will collapse there and then. So, again, one gets no further.
The matter goes further than that. I have grave doubts whether the case will even get to trial because, as I understand the Bill, the inference can be drawn only by the court or the jury: it cannot be drawn by the police officer before the case comes to trial. In those circumstances all one will have before trial is the opinion of the police officer. The Bill now expressly states that that will not be enough to commit the suspect to trial. So whichever way one looks at the matter, one has nothing. One has nothing from the police officer's evidence and nothing from the so-called inference because it cannot be drawn until the trial. In any event, it is very unlikely to be able to be drawn. So we have nothing added to nothing and that will not add up to a conviction.
I have taken much time in explaining why the only answer to this conundrum and dilemma, which we have been in for 25 years, is to get the terrorists convicted out of their own mouths. That we can do by allowing 39 what they have said on the telephone to each other to be admitted as evidence in court. Every other country of which I am aware not only admits such evidence, but regards it as indispensable. We alone do not for reasons which I find absolutely inscrutable. We allow the evidence to be given if there is a tape or a bug placed by the security services in the very telephone itself. We allow that evidence to be given and there is no problem there; but when that telephone conversation is intercepted at the telephone exchange, we say no.
I have been trying for many years now to get Section 9 of the Interception of Communications Act repealed, but I have not yet succeeded. When the Secretary of State said in October last year that he was going to produce his proposals in early January or early in the new year, I had hopes that we might be getting somewhere. We have not yet had an opportunity to debate Chapter 7 of my report in which I explain why it is so important to repeal Section 9 of IoCA. Unfortunately, the matter was put off in January until April and then it was put off from April until July. The latest I have heard is that we shall have the Minister's views in the "not too far distant future". That was the phrase used yesterday.
It is an awful thought that during all these years people might have been convicted as a result of introducing intercept evidence. I gave four recent examples among 20 others, where it would have been of value to the prosecution and one where it would have been absolutely crucial. It would be quite wrong to say whether it would have made any difference in the Omagh case. That would be speculation which none of us is entitled to make. If we are to fight terrorism, as we must, we should use every weapon we have, including intercept evidence.
So how should one vote? If the Bill had been as we originally thought, as we were wrongly informed, I would probably have voted against it. But this Bill is not like that. It contains no tough new measures. Compared to what we were expecting, it is a mere mouse of a Bill. In some respects it is a dangerous mouse—if one can envisage a dangerous mouse—because of the infringement of the right to silence, which I value. Nevertheless, it is a mouse. But that is not a reason for not accepting the Bill. For my part I shall support the Government, not for any intrinsic merit in the Bill, because it seems to me to have little merit, but because of what the passing of this Bill stands for in these circumstances.
We live in a democracy and it is necessary for our political leaders to respond to events. That is what the Prime Minister did after Omagh, and he had to do so. What is quite properly happening now is that the Government are redeeming the pledge which the Prime Minister then gave. He is doing so in a way which is obviously intended to be symbolic of the new working relationship with the Government of the Republic. As the noble Lord, Lord Holme, said, that is a prize infinitely worth winning and retaining. That is the substantial reason for voting in favour of this Bill. It may be that it is nothing more than a gesture, to use a phrase which the noble Lord, Lord Jenkins of Hillhead, 40 often uses, but there are times when gestures are necessary and this is one such occasion. It is because of that and what the Bill stands for, that I shall vote in favour of it.
§ 5.26 p.m.
§ Lord Howell of Guildford
My Lords, the noble and learned Lord, Lord Lloyd, should have no reservations about having spoken at length because what he had to say was superb, very telling and, frankly, a good deal more relevant to the problems of Northern Ireland than many aspects of the Bill which we are discussing this afternoon.
I had the enormous privilege 25 years ago of serving under my noble friend Lord Whitelaw during one of the bloodiest periods in the history of Northern Ireland—at least until the latest events. For that reason, and since then, I have always tried to keep rather quiet and say very little on Northern Ireland affairs because one is aware of the appalling burdens and complexities facing Northern Ireland Ministers and their officials and also there is always the danger, to which we are all prone, of not keeping up to date. Nevertheless, I now feel compelled to make one broad Second Reading point about the Northern Ireland aspects of the Bill and not about the legal expertise, of which we have had a superb example. I am not qualified to speak about that. I wish to say one thing about the policy behind it and whether we are going the right way.
I heard the Prime Minister say yesterday that the reason why this legislation is being brought forward is that the people of Northern Ireland expect us to take action. But they have expected action to be taken for years and years. This is not a new development, although it may be a new level of horror. As the noble and learned Lord, Lord Lloyd, indicated, even 25 years ago the police were well aware of—and the intelligence services had all the information required to identify—the professional killers and atrocity lovers. We knew about the men of Dundalk strutting in the street and the gangsters in county Monaghan hiding behind the Border and using it as murderous cover. We knew about that then. The question was why we did not pick them up. If such legislation will do it, why was it not brought forward then to end the terror? How many more lives would have been saved?
The answer is that the political will was not there and neither was there cross-Border co-operation. There was a broad feeling, which is still around today and is fundamentally wrong, that if only we could isolate the men of terror they would somehow fade away. Political solutions would do it. We had a very good try. The power-sharing agreement took things an immensely long way, just as the peace process has—which I completely support and which is full of amazing achievements. It has taken things a long way. But it was a fallacy then and it is a fallacy now to believe that that is a complete policy. It is not. The rest of the policy requires that the remaining terrorist element should be stamped out and that anti-terrorist methods should be used equivalent to those which have stamped out quite successfully other terrorist movements in neighbouring countries.
41 I have always regarded the peace process as half a policy or not really a policy at all. The other half needs to be, not the winding down of security provisions or the relaxing of anti-terrorist moves, but the redoubling of anti-terrorist effort. Anyone who now expresses surprise that another breakaway group has murdered eight children and 22 adults has never read any Irish history. It is all about breakaway groups, again and again and again. The fracture occurs and the new group carries on totally disinterested in negotiation or coming into the democratic forum. That was the position, is the position and will continue to be the position. The defeat of terrorism requires not just laws—I hope there is some good in these laws, but we have had some revealing speeches this afternoon—but the political will to organise effective anti-terrorist measures against the small remaining groups. Small they may be, but the tragedy of one's child being slaughtered is not a small matter at all.
Over the years some of us have urged quietly that the cross-Border co-operation which did not exist at the time of the Whitelaw administration—we had many almost comical examples of non-cooperation from the Garda and the Irish military—should exist and that we wanted new rules of evidence and effective modern technology to protect witnesses and judges. We said that if people could not be picked up, charged and convicted, they should be interned. We are told all that is impossible and that internment did not work.
All I can say is that when I worked under my noble friend Lord Whitelaw we operated the internment policy in the early days. It operated on the say-so of senior police officers. I believe that it worked. I agree that later it became rather out of control, but in the early days the ambition of the IRA was to turn Belfast to rubble, to destroy the fabric of Northern Ireland and to create civic chaos. However, it failed to do so because we had picked up and interned member after member of the violent wing of the Provisional IRA on the say-so of senior police officers. I believe we have to realise—as the Dublin Government now appear to realise—that detention, or internment as we call it, may be part of the necessary remaining procedures which amount to the well targeted, anti-terrorist efforts that are still required, even after Omagh, and were required long before, if we are to see the rest of the peace policy work.
If we have not been able to put those measures in place in the past—this is not a party point as it concerns all governments—we should at least have the humility to recognise that we have been found wanting, as many innocent people have died. To say that the peace process somehow prevents all this and that we cannot put the proper security measures in place because that would undermine the peace process is to distort words. As I say, the peace process always had to have the other half, which is the effective defeat of terrorism.
I have spoken for too long but, like everyone else, I hope that, in Gerry Adams' words, violence is over and done with. I hope that is the case, but all the lessons are that there is much more to do. With this legislation I hear the sound of a huge stable door clanging after the death of many people. Now the policy-makers may just be doing something right, although my mind is filled 42 with doubts, particularly after the speech of the noble and learned Lord, Lord Lloyd. I feel ashamed that we did not act earlier and before the good people of Omagh had to die. That is why I shall not oppose this legislation but I shall look upon it with great unease until I know that we are seriously pursuing the anti-terrorist policy which ought to have been in place all along.
§ 5.33 p.m.
§ Earl Russell
My Lords, when the Good Friday agreement was announced to this Chamber, the noble Lord, Lord Fitt, said that there would be more outrages in Northern Ireland and we would all need a very steady nerve. I am grateful to him for saying that.
On his way back from holiday my eldest son passed through the centre of Omagh two weeks before the bombing. Last week he told me he was glad he did not take his holiday in August like everyone else. That gratitude does not exempt me from fellow feeling for those who did take their holidays in August and were there. I hope that we shall never make this debate into a competition of outrage against terrorism. If we do that, the only rule that can apply is Alice's; namely,All have won and everyone shall have prizes".Moral outrage, however strong it may be, confers no dispensation from the iron law of politics that measures proposed must be capable of achieving the desired effect. On that, I listened with great care to the noble and learned Lord, Lord Lloyd of Berwick, who made what I think was one of the most powerful and effective speeches I have heard in this Chamber.
In his report the noble and learned Lord described terrorism as the weapon of the weak. In the case of the pipsqueak outfit which calls itself the Real IRA, it is a weapon of the very weak indeed. I wonder whether the panoply of this reaction that we are producing here confers on it a spurious appearance of importance which, however much it may enjoy it, I do not think it deserves. I listened with great care to the noble and learned Lord, Lord Lloyd, on the likely effect of this Bill. I agree with him. Last night I read in his report on the terrorism law his views on how one should fight terrorism. He states in Chapter 2.2,The first, and overriding, response to terrorism is the political … An effective response to terrorism must always be in accordance with the rule of law and proportionate to the threat. A lawless approach risks alienating the population, or a section of it, without producing substantial benefit for the counter-terrorism effort. This plays into the hands of the terrorist".The test that I wish tentatively to propose for this Bill is whether it is an effective way of combating the terrorist threat, because that is what we all want to do. But there is no use in measures unless they do that.
I agree with my noble friend Lord Holme that this Bill is undoubtedly a dilution of civil rights and civil liberties. Other things being equal, that is to be regretted. I suspect that most noble Lords are weighing this Bill in terms of the balance between civil liberties and the need to fight terrorism. That is a desperately difficult balance and I shall not enter into it because I do not believe that is the question at issue. For reasons which the noble and learned Lord set out in the passage from his report I have just quoted, I believe that measures 43 which carry a risk, however small, of mistaken convictions may risk giving back to terrorists support which at present, thank God, they do not possess. It may well be that the outrage caused by the Omagh bombing is so intense that that will not happen. I very much hope that that is so, but why take the risk for a gain in terms of enforcement which I believe the noble and learned Lord is right to say will be absolutely negligible?
If I were convinced that this Bill would have a serious effect in the fight against terrorism, I should swallow a good deal of distaste at things I should not otherwise have agreed to. However, I should like to be persuaded first that it will have some effect. I heard what the noble and learned Lord said about conviction by opinion, and I agree with it. Therefore I shall not say what I was going to say; I shall leave him to say it all.
As regards the overseas clauses, I agree entirely with what has been said by my noble friend Lord Wallace of Saltaire. We have here a balance which I thought the Minister set out fairly between what we want and what we do not want. We all want measures which will deal with those who perpetrated something like the Nairobi outrage if they planned it from this kingdom. Equally none of us wants measures which would have inhibited bodies such as the ANC or, if they had been in force earlier, the International Brigade in Spain.
How do we make such a distinction? That is the real practical problem of legislation against overseas terrorists. It has been approached in this Bill through the power of the Attorney-General to decide whether a prosecution should be brought. I think that will put the Attorney-General in the position of Paris with the apple. We should remember that in the use of the apple, Paris made two enemies for one friend. The Attorney-General might well find that he is in the same position and because the Attorney-General's is both a political and a legal office, he may find that the decisions he has to take become more than necessarily complicated. We may also find, as my noble friend Lord Wallace of Saltaire suggested, that in 30 years time we have many fewer friendly governments in the world than we should have had otherwise.
I appreciate the difficulties of the timetable. I hope the Minister and other Ministers who have been opposite me will confirm that I have never whinged about my own inconvenience with a rushed timetable. One gets one's head down and copes. But the complaint about the timing of the publication of this Bill is that the Government did not cope. Most of us, when discussing amendments, like to take advice, especially on legal and drafting matters. If I have amendments down later tonight which may turn out to be unnecessary or misdrafted, it is a consequence of the haste. I shall regret it deeply but I shall not feel the need to apologise for it. It was forced upon us. Finally, I hope that the Minister recognises that we are a revising Chamber and that this Bill is, in principle, amendable.
§ 5.42 p.m.
§ Lord Hylton
My Lords, like many other parliamentarians, I have spent a large part of my life 44 resisting and opposing terrorism. I recall emphasising in the early 1970s the importance of having good intelligence. In 1982 amendments of mine on the Northern Ireland Assembly were completely derailed by bombs exploding in the London parks. Since then, I have been a supporter of the Peace Train, New Dialogue and Families Against Intimidation and Terror besides numerous other community and voluntary initiatives designed to build up and strengthen civil society in Northern Ireland against the men of violence and those who use physical force for political ends. I hope therefore that no one will suggest that I may be "soft on terrorism".
Nevertheless, as a result of prison visiting, I have had far too much experience of major miscarriages of justice. To name only a few and the better known ones, I have been involved with the Birmingham Six the Guildford Four and the Armagh or Ulster Defence Regiment Four. I therefore urge the Government to ensure that this Bill does not lead to further miscarriages which only go to strengthen the terrorist cause.
I can understand the Government's reasons for wishing to see this Bill on the statute book. These include the need for action against the splinter groups, the need to have broadly similar legislation on both sides of the border in Ireland and perhaps also, it has been suggested, the need to have a present to offer to President Clinton when he arrives in Belfast.
These are reputable reasons but I do not think they justify the way in which Parliament has been treated. The matter was urgent, I think we all agree; sufficiently urgent to recall Parliament in the middle of the Summer Recess. Time should therefore have been found for proper consideration. One day in each House of Parliament is simply not sufficient. This is, I fear, the rubber stamp approach, more suitable to a dictatorship than to a democracy.
The difficulties facing Back Benchers have been massive. The text of the Bill only became available, and then in draft form, at 6 p.m. on Tuesday. I had to complain to the noble Lord, the Chief Whip in person on Wednesday morning before the Public Bill Office was able to consider amendments. Today's Marshalled List and grouping may, though I am not quite sure, still not yet be available. Such conditions are to my mind not acceptable. They are quite inappropriate to major legislation.
In view of all these considerations, will the Government agree that the Bill shall have a life of only one year? If this cannot appear on the face of the Bill, and it does not at the moment, will they undertake to review both the wording and the working of the Bill within six to nine months of its enactment and guarantee to introduce new legislation which can be fully and properly considered? Such a review should ensure that the Act complies fully with our obligations under the European and other world-wide conventions on human rights.
I would go further and ask the Government whether they are likely to accept the amendments which I intend to move when we come to Committee. I gave notice of these yesterday. They have been printed, I am glad to 45 say. The purpose of the first is to limit the length of imprisonment of persons convicted of membership of an illegal organisation where no other offence is involved. The second aims to restrict the amount of retrospection for offences committed in Northern Ireland to the date of the Belfast agreement of April of this year.
If the noble Lord can give me a reply on that it may save a little time when we reach Committee stage and when I shall have to move them.
§ 5.46 p.m.
§ The Earl of Longford
My Lords, the noble Lord who has just spoken speaks with a great deal of expert knowledge of these problems but I am afraid I shall not follow him in servile fashion this afternoon. I shall speak more crudely.
I come forward as a strong supporter of the Government, almost a blind supporter on this one occasion. I have criticised this Government in the last year quite often, as some Members of the House will be aware, but today I am an unequivocal supporter. I feel that the peace settlement reached not so long ago has given Northern Ireland a better prospect than at any time in my lifetime and I would not do anything to interfere with those who are trying to give effect to it.
I pay tribute to all concerned: the Irish Prime Minister; the Secretary of State for Northern Ireland, Mo Mowlam; David Trimble, who has shown extraordinary courage; John Hume, who has fought so long for this kind of result; and Gerry Adams. I give credit to all those but most of all to our own Prime Minister. I shall always say that without him it would never have happened. I do not believe there is any man in the world who could have pulled that off except the Prime Minister. That is just a personal opinion and I give it to you for what it is worth. I am an unequivocal supporter of the agreement and those who are trying to give effect to it.
There are those with very high credentials who speak in this matter—namely, the noble and learned Lord, Lord Lloyd, who has made such an impressive speech and the noble Lord, Lord Mayhew, to give only two examples. I have my own credentials, less exciting perhaps but less common in this House. My family home is still in County West Meath, now in the possession of my son, and I am wearing, as I habitually wear, an Irish Rugby Union tie given to me by an Ulster Protestant farmer. I have been involved with these problems second hand or from afar all my life, so I speak with that kind of authority. I come from a Protestant family and became a Catholic. My brother remained a member of the Protestant Church of Ireland Synod to the day of his death. So I look at these matters from all angles.
I respectfully agree with the noble and learned Lord, Lord Lloyd of Berwick, in laying tremendous stress on the new co-operation between our Prime Minister and the Prime Minister of the Irish Republic. It has now become a more intimate relationship. I think that that is ground for tremendous hope. I am much encouraged by the prospect.
46 It is now nearly 30 years since the noble Lord, Lord Callaghan, returned from visiting Northern Ireland as Home Secretary saying that there were too many guns. People might now say that there are too many bombs. But those bombs are not distributed by only one element in the community. In England it is tempting to think of the IRA as the main threat. If one were serving in Northern Ireland, those are the people who, after all, are a danger to our forces. But it was not the IRA which brought the guns to Northern Ireland; it was the Ulster Unionists. The cry was, "Ulster will fight and Ulster will be right". That is where the guns started in Northern Ireland. As I have told the House previously, I once spent a night with the leader of one of the Protestant paramilitary groups. He was sad that I had not known his hero Carson. Carson is still the hero of many people, so let us not think that all the guns are produced by one side or the other.
The awful fact about Northern Ireland is that a number of Protestant and Catholic paramilitary bodies are criminal organisations. They had been allowed to continue unchallenged for years. That is the problem. It would not be tolerated in England. And now it cannot be dealt with overnight. However, a start has been made on dealing with the paramilitary criminal organisations. I have the utmost confidence in the Prime Minister and the Government, who receive, on the whole, solid support from all parties; and in the Irish Prime Minister. I wish them well and I hope and believe that they will succeed.
§ 5.52 p.m.
§ Lord Patten
My Lords, the noble Earl, Lord Longford, spoke in high praise of his right honourable friend the Prime Minister. He is given sometimes to being very kind to people. Once when I was in the Home Office—I think undertaking the job that the noble Lord, Lord Williams of Mostyn, is doing so well—the noble Earl, Lord Longford, broke into praise in the media about something I had done. It caused immense damage to my political reputation! The Government Chief Whip called me in. The chairman of the 1922 Committee in another place had me in for a glass of whisky in the smoking room. It was an unexpected compliment.
That experience, and other experiences in the Home Office and Northern Ireland Office, taught me that it is always best to plan for the unexpected; and to plan for the unexpected to be awful. The expected at present, the conventional wisdom—I hope that it turns out to be true—is that little by little those people who remain outside the pale of constitutional priority in the Province will be slowly wheeled within the pale and will become more and more constitutional.
A little earlier one noble Lord—I suspect he may have cause to regret it one day—said that probably just 10, 20 or 30 men of violence remained to be dealt with. I hope that that is true, but we have to plan for the unexpected and the awful happening. Outside the constitutional agreement, a number of people—greater than that 10, 20 or 30—may not agree with what is going on. It would be rather odd if that were not the case. After all, the Northern Irish problem has taken 47 many generations to emerge. We have had it in spades for the past couple of generations. Even with the best will in the world, it may take another couple of generations before that problem is finally laid to rest. So, while travelling hopefully, the Government should travel realistically. They should realise that many people north and south of the border in the island of Ireland wish to see eventually "the British out of Ireland".
The pattern of incremental terrorism may not yet be dead. By "incremental terrorism" I mean a period of anarchy and terrorism followed by a purported return to civility and constitutional propriety; then, after a while, bombs, then back to the conference table, and then more bombs. I think that incremental terrorism still stalks the province. That is why I believe the Government should do all they possibly can in co-operation with the Government of the Republic of Ireland comprehensively to review measures which may seem today unnecessary but which in future may prevent further outrages, further recalls of Parliament, and further hasty legislation in due course.
We have already rightly heard from the noble and learned Lord, Lord Lloyd of Berwick, of the pressing need to enable telephone tapping to be taken as evidence. Every other jurisdiction in the civilised world seems to use it. I am sure that on his visit today President Clinton would welcome the introduction of a measure which is perfectly common in the United States of America.
However, there are other measures which should be contemplated not in haste but in a determined way over the next few months, and certainly within the next year. I wish to press the Minister to carry them back to his right honourable friend the Home Secretary, for whom I have great personal respect—and I do not seek to damage him in any way by saying that!
I suggest that the two Governments should consider seriously the possibility of a zone of hot pursuit of, say, five miles on either side of the border between the north and south which would allow the police forces of the two jurisdictions and the Armed Forces to follow in hot pursuit if necessary. That may now seem totally unnecessary in the apparent new world of constitutionalism, with those 10, 20 or 30 men of violence left out there. However, it could seem necessary in two or three years time if the unexpectedly awful happens. My noble friend Lord Howell of Guildford pointed that out in his powerful speech. He said that he had not spoken on Northern Ireland issues for a quarter of a century. I hope that he does not leave it another quarter of a century before speaking again on those issues.
There is a list of further measures. I ask this rhetorically. I do not seek an answer tonight. However, I should like the Minister to consider the matter and to carry the message back. Why is it not possible for the Special Branches of the Republic of Ireland and United Kingdom to undertake joint training? Lastly, and equally rhetorically, tonight, why is it not possible for, let us say, the chief of police in the city of Cork to get in touch directly with the chief of police in Merseyside in order to deal with a possible terrorist measure?
48 Finally, we are in a period which I did not expect to see—a period of strong, sustained co-operation between the Prime Minister and the Northern Ireland Secretary, and the Taoiseach, the Tanaiste and the Irish Government. We are in a period of high politics at present. Co-operation is going extremely well. The two Governments having put through this legislation—it may or may not be effective; it may or may not be necessary because of the politics of gesture—they should now continue the process at a slightly slower pace. Between them they should consider a range of measures to ensure that the peace that the Minister saw on the horizon—and noble Lords will find those words in tomorrow's Hansard; I noted them carefully—can come about. There may well be peace on the horizon, but it is only a small blip in reality yet. We need constantly to review and refine our measures to deal with terrorism north and south of the border. In this period of high politics between the two Governments, now is the time to strike.
§ 6.00 p.m.
§ Viscount Brookeborough
My Lords, I welcome the measures in this Bill which pertain to Northern Ireland and I thank the noble Lord, the Minister, for his presentation and the explanations which he gave, especially those on the new powers of arrest or, at least, the use of evidence and the word of a senior police officer.
However, I share the reservations expressed by many noble Lords about the lack of time for scrutiny of this Bill. Perhaps I am the only person speaking who comes from an area of Northern Ireland known as West of the Bann. I live 10 miles from Enniskillen and 17 miles from Omagh. They are two local market towns, both sites of mass murders by Republicans, and that is why I rise to speak. Your Lordships will have read the details of what happened in Omagh many times in the press. Although I was not at the scene, the details were, and still are for the injured, even more horrifying than anything imaginable.
I should like to mention, firstly, the subject of prisoner releases in the future. Many to whom I speak, although 100 per cent, behind the peace process, are worried by the mentality of the remaining proscribed groups. It seems to many of us that it is a mentality of "one last atrocity and then we can declare a ceasefire and almost have our members released before they have been arrested". I hope that the Minister can reassure the people as to what will happen to these groups if they declare a ceasefire and when they might be allowed within the process of prisoner release. I hope never.
Since Christmas we have had several town centres blown apart by this group and this level of atrocity was, sadly, waiting to happen. It was the first time that masses of people have been tragically evacuated to a place where the bomb had been placed. The police could only act on the information in the warning. Sadly, it was intentionally misleading. Apparently, the security forces and many people in Northern Ireland on both sides of the border have known the identities of many of this group, the Real IRA, for some time. Had we had the legislation required in place—for example, if we had left 49 internment in our legislation, or had had these proposed measures—then action might have been taken jointly with the Republic earlier to disrupt their plans by arresting these known people. That is why I welcome this Bill, even though it may need amending at a later stage.
I should like to remind your Lordships of what my noble friend Lord Molyneaux said. The weapons and explosives have been handed over by the IRA/Sinn Fein grouping. They may not have the power to deliver decommissioning. I ask the Government to keep their eye on the ball and not to go soft on these proscribed units.
The peace process is stronger than ever, but let us not have to learn this lesson a second time. Our sympathies go to the bereaved and the injured and also to all those emergency service personnel, many of whose members are severely traumatised by what they experienced. Every day I meet more people who were at the scene. It affected so many. Yesterday two delivery men who came to my house told me that they were there. One was in a shop owned by a great friend of mine, Roy Kells. The bomb was placed outside his shop, S. D. Kells, and nine customers were killed. The delivery man was upstairs working and had a miraculous escape with few injuries. His colleague, who was in his uncle's pub across the road, was slightly injured. These are the ordinary people who helped the injured and who will be so traumatised. What they saw and dealt with was horrific. If it had not been for the courage of so many like them, the death toll would have been far worse.
I have spent several afternoons in Erne hospital talking to victims and their families. To a person, I can reassure you, they want the peace process to succeed. One Spanish supervisor from the joint Spanish-Irish group of school children was killed. The other, lying in hospital, said, that she would come back to Buncrana with more children and she would come back to Omagh in time of peace. The family of Emmett McLoughlin, one of the Buncrana children who was severely burnt, and whose nephew was killed, was like-minded. I have never been so humbled as I was by the courage and Christian thoughts which they showed and their hopes for the future.
I beg you, do not betray them. Give the security forces the power now to prevent another similar incident that could have been prevented before. I strongly welcome this Bill.
§ 6.5 p.m.
§ Lord Ackner
My Lords, I have heard it said that you can tell the state of health of a lawyer by the condition of his mouth. When it is closed he is usually dead. Despite the grain of truth in that aphorism, I shall detain your Lordships only a few minutes without, I hope, a fatal consequence.
I put my name down on the speakers' list, like many others, before I had had the chance to read the Bill. I did so because of the word "draconian" which has been used so frequently in the last few days. If it was going to be "draconian" I had the suspicion that it would be inconsistent with the human rights legislation. It is quite 50 clear, having considered the final draft, that the Government have been at pains to ensure that the Bill does not breach the human rights convention. They are to be congratulated on their second, third or last thoughts.
The Ministers, both here and in another place, have been at pains to stress that all they are doing is to make available for consideration evidence which might otherwise be inadmissible, and that the evaluation, the weighing up of that material is and remains entirely a matter for the judges or the judge and jury if there is such a trial.
I met and discussed yesterday with my noble and learned friend Lord Lloyd the strength or absence of strength to be found in the Bill as it now stands. I think he would confirm that the reference to the "mouse" came from me and I am glad that he has adopted it.
§ Lord Ackner
My Lords, I do not know how he can say that because he did not communicate that to me. In any event, it gave me the strong temptation to ingratiate myself with your Lordships by removing my name from the speakers' list. I did not do so because I wanted to take the opportunity, in view of the fact that expectations with the public have been so greatly raised, to put on record how wrong it would be for the judiciary to be criticised if they find that all or most of the attempts to secure a conviction by virtue of the advantages given in this Bill were to be laid at their door on the basis, as is so frequently and wrongly the case, that the judges are soft on crime. It is for that reason only that I take up three minutes of your Lordships' time in order to stress that matter.
§ 6.9 p.m.
§ Lord Mackay of Drumadoon
My Lords, I follow the contribution of the noble and learned Lord, Lord Ackner, with a measure of diffidence. Speaking as I do as a comparatively young lawyer, I feel somewhat of a legal "mouse" in the company of the noble and learned Lord and his colleague, the noble and learned Lord, Lord Lloyd, whose contribution to the debate will be remembered by many of us for many a day. I had the misfortune to visit the dentist last week for some major dental work so, for the reason also of the state of my mouth, I shall confine my remarks to a very few.
I recognise that it is appropriate that this Bill, and in particular Clause 1, applies throughout the United Kingdom. Therefore, it is right that certain provisions in Clause 1 should have been drafted having regard to the different laws of corroboration in Scotland in criminal matters. I pay tribute to the noble and learned Lord the Lord Advocate and his officials for having taken account of certain comments and suggestions which I made informally yesterday and which have resulted in minor amendments to the new subsection (10) of what will be new Section 2A, which is to be found at the foot of page 2.
51 Nevertheless, it is right to acknowledge that the provisions of Clause 1 amount to a significant diminution of what we would normally require by way of corroboration in Scotland. I very much hope that it will be recognised on all sides that only the very unusual circumstances that warrant this Bill coming forward in the first place warrant us departing from principles of corroboration which all of us in Scotland regard as very important.
I should like to pose three questions to which I hope to hear a reply before the night is over. The first relates to why the procedure which allows inferences to be drawn under subsections (5) and (6) of what will be new Section 2A do not apply to the judicial examination procedure that we have in Scotland. That procedure requires a man to appear before a sheriff after he has been cautioned and charged and to answer questions from the procurator fiscal relating to his defence. It seems to me that silence on that occasion as to a fact which might be material to the offence under Section 2(1)(a) of the 1989 Act might be just as powerful as giving rise to an inference, as would be a failure to answer questions, when questioned by a police officer or when cautioned and charged by a police officer.
I raise my second question to seek some guidance as to the terms of the caution which the Government will deem appropriate before an inference can be drawn under subsection (6). Who will decide what the terms of that caution will be? Will it be the police, or the Secretary of State, or will it be a matter for the courts to resolve in the fullness of time? As I am sure that the Minister will be aware, there are different statutory provisions relating to cautions in England from those which apply in Scotland and, indeed, in Northern Ireland. It would be helpful if this important matter could be clarified.
Finally, perhaps I may raise an issue relating to the cross-examination of a police superintendent who gives evidence of an opinion under subsection (2) of the new Section 2A of the 1989 Act. I welcomed what the noble Lord, Lord Williams of Mostyn, said about that evidence being open to cross-examination. However, I had some difficulty in understanding whether it would be possible for such a police superintendent to decline to answer questions in the way that my noble and learned friend Lord Mayhew indicated earlier. It seems to me that if the police superintendent says that his opinion is based on "sources" and refuses to state who those sources are or what they told him, that might not be allowed in a court of law, which would mean that the trial could not proceed.
It is because I perceive that to be a problem that I believe that it is very unlikely that the courts will rely on the provisions of subsection (2) of the new Section 2A because even if a police officer said, "I base my opinion on having seen the man at the funeral of a member of a particular specified organisation", he could still be asked, "Did you take anything else into account in forming your opinion?", and the probabilities are that in addition to having seen the man at the funeral the officer will have had some security briefing from other sources about which, if he adheres to the terms of his oath, he 52 would be required to speak in evidence. When the Minister replies, I should welcome guidance on whether the view taken by my noble and learned friend is correct and whether it would be possible for a police superintendent, giving such an opinion in evidence, to decline to answer questions.
§ 6.14 p.m.
§ Lord Chalfont
My Lords, I rise to support in principle the measures now proposed by the Government in this Bill, although in some respects I doubt whether they are, to use the current phrase, "draconian" enough. Here I found a great deal with which to agree in the comments of my noble and learned friends Lord Lloyd and Lord Ackner.
Much has changed in recent days, as the noble Lord, Lord Williams of Mostyn, said in his opening remarks. Indeed, the noble Earl, Lord Longford, went so far as to say that the prospects for peace are now perhaps greater than they have been for some time. Perhaps I may observe—I am sorry that this is not in the noble Earl's presence—that as the noble Earl wears the tie of the Irish Rugby Union, he is obviously not totally unfamiliar with lost causes.
The Scots Guardsmen Fisher and Wright were still in prison when I put down my name to speak in this debate. There appeared to be no serious prospect of any move towards the elimination of the stockpile of weapons and explosives still in the hands, and under the control, of the IRA. In passing, perhaps I may express some reservations about the constant use of the word "decommissioning" in the context of the stockpiles. If it is true that the ugly word "decommissioning" is necessary as part of the negotiations and the peace process, I suppose that we shall have to accept it, but we should be in no doubt about what the word "decommissioning" really means. It means—there should be no doubt about it—that terrorist weapons must be, without equivocation, handed in into safekeeping or destroyed. Nothing less than that would constitute any acceptable diminution of the stockpile.
Today, the two Scots Guardsmen have been released and Mr. Martin McGuinness of Sinn Fein has been appointed as that party's delegate to the international body that will oversee the elimination of the stockpile of terrorist weapons. At the same time, the leader of Sinn Fein has hinted that terrorist violence may no longer be an instrument of republican policy.
Perhaps I may first say a few words about the release of the two Scots Guardsmen. This is a welcome development which is, as the noble Lord, Lord Henley, said, long overdue. Congratulations are due to all those who have campaigned for the release of the two soldiers, including many Members of your Lordships' House. It is worth saying that at this stage we must guard against the kind of bogus moral equivalence which leads some people to apply the same criteria to the actions of the guardsmen as they apply to the actions of the terrorists against whom they were fighting. That is insulting to the soldiers, to their regiment and to the members of the security forces which have for many years risked their lives in protecting the people of Northern Ireland against 53 indiscriminate terrorist violence. It is a little like that meaningless phrase, to which my noble friend Lord Molyneaux referred earlier, which one often hears in this context, "One man's 'terrorist' is another man's `freedom fighter`". To put it mildly, that is dangerous rubbish, usually peddled by people who are, in effect, apologists for terrorist violence, the sort of people who used to be described by the Russians during the Cold War as "useful idiots".
We have heard a few heartfelt rhetorical questions about how to define "terrorists". I do not think that it is too difficult. People who murder and maim men, women and children indiscriminately in pursuit of their political aims are not freedom fighters; their aim is not to liberate; it is to terrorise; and they are quite simply terrorists, murderers, and they should be treated as such. Guardsmen Fisher and Wright, on the other hand, were doing what they perceived to be—and what they were trained for—their duty. In my view, they have already paid more than in full for the error of judgment that they may have made in discharging that duty, and their release brings a very small measure of sanity to the current situation. My noble and gallant friend Lord Bramall, who is unable to be here today, has asked me to say that what I have said reflects also his views on the two guardsmen.
I turn now to the release of prisoners convicted of terrorist offences and the elimination of the stockpile of terrorist weapons. The noble Viscount, Lord Brookeborough, referred to that problem. It is a worrying situation and it seems to me that as matters stand at present, what now seems to be contemplated is a process by which convicted terrorists will be released into a situation in which the structure of the IRA remains intact; the security arrangements in Northern Ireland are being reduced; and at the same time pounds of Semtex, thousands of rifles, handguns, mortars, flame-throwers and other weapons remain available to those who choose to use them, as indeed they were used in the recent atrocity in Omagh.
In my view, the Government should approach that dangerous phase of the Northern Ireland situation with great care. Carefully crafted words by the leader of Sinn Fein and even the appointment of a Sinn Fein negotiator to the disarmament process are not enough. There should be real and visible movement towards the elimination of the stockpile of weapons and explosives before, or at least at the same time as, the wholesale release of convicted terrorists. I believe that that was behind some of the comments made earlier by the noble Lord, Lord Henley.
Whatever views we may hold here on the mainland about this matter, we should not forget that it is the future of the people of Northern Ireland which is at stake here. We must bear in mind that whatever we may feel about it, there can be no lasting peace or stability in Northern Ireland without the existence of a measure of trust between the political factions. The Unionist leadership made that abundantly clear. I quote from a statement made yesterday by one of its leaders: 54Republicans can play no part in Northern Ireland's government if Unionists do not trust them. That trust can only start to be built by the commencement of disarmament and the ending of all forms of para-military violence".That is the stark political reality which we face.
As the noble Lord, Lord Howell, has rightly said, the problems of Northern Ireland, indeed all problems of terrorist violence, cannot be solved until the terrorist organisations are confronted, defeated and stamped out. There is no other solution for Northern Ireland or any other form of terrorist confrontation.
Having said that, I support the basic objective of the legislation now before the House. I express the hope, with the noble Lord, Lord Howell, that we are now moving towards a situation in which Mr. Gerry Adams' declaration that violence must be a thing of the past becomes a reality and not mere rhetoric. We have had quite enough of that from all directions.
§ 6.23 p.m.
§ Lord Cooke of Islandreagh
My Lords, after the tragedy at Omagh, I felt it was necessary that something should be done. Therefore, I was glad to hear that Parliament would be recalled to deal with a Bill and I heard it described as "draconian". That brought me back from a holiday in Portugal to be here today. But when I read the Bill this morning, I wondered why I had come. My lay opinion was reflected clearly in the speech made by the noble and learned Lord, Lord Mayhew, that in his experience and judgment Clauses 1 and 2 would not lead to any additional convictions.
I then heard the quite remarkable speech of the noble and learned Lord, Lord Lloyd of Berwick. He set out the matter clearly and succinctly. It was well worth coming any distance to hear him today. He has blown out of the water any idea of fiddling about and trying to somehow get regulations enforced which will allow the judiciary to somehow twist the rules. He has expressed the matter very clearly today and has made it quite clear that the rules cannot be twisted in judicial matters. So that is that.
But back in Northern Ireland we have all had enough of this. We need terrorism to be stamped out and quickly. There is no doubt in my mind that it is north, south and everywhere. At last the Government of the Republic of Ireland realise that too. One of the problems over past years has been that they have not understood the need to support Northern Ireland and have not co-operated in a helpful way. The noble Lord, Lord Howell, said something about that.
At last we have a situation where the Government of the Republic of Ireland seem determined to rid us of terrorism. We now have a new situation and I hope sincerely that we shall pass this Bill. It will not make much difference but I hope that it may lead to real progress because, as the noble Lord, Lord Chalfont, said, there is no alternative but to stamp out those people. Nobody has yet put a letter into the letterbox of the IRA to say, "You are going to be finished. You have had invitations and gifts of all sorts which have not made much difference".
55 In Northern Ireland we have all known that terrorism would not be stamped out until the two governments worked together completely openly and wholeheartedly with police and security intelligence forces working together. When that happens, it will be relatively easy. Intelligence and firm information are available and it is known who are the people responsible. When that happens, there is only one solution which is not a judicial fudge; that is, internment or executive detention. That moment must come if we are ever to rid ourselves of terrorism. I can see hope that that may come in the near future with the two governments working together.
§ 6.26 p.m.
§ Baroness Kennedy of The Shaws
My Lords, like other noble Lords who have spoken, I too am concerned that such important legislation should be going through this House and the other place with such haste and inadequate procedures for scrutiny. I join in the view that Clauses 5 to 7 concerning conspiracy to commit offences overseas should not have been included in the Bill. There is no urgency in relation to those clauses. The Government have been considering the matter for over a year and the clauses should have been laid and debated in the normal way. The provisions of Clause 5 are extremely complicated and wide ranging. They cover the particularly difficult law of conspiracy and the complex area of extra-territorial jurisdiction. It is my respectful view that those clauses should be removed and placed before Parliament in the next Session.
I turn to the primary provisions in the Bill which have arisen out of the outrage in Omagh. In my practice at the Bar, I have acted in many of the leading Irish cases over the past 15 years. Indeed, I was counsel for Paul Hill, one of the appellants in the Guildford Four appeal. The noble and learned Lord, Lord Lloyd, is right to say that those are not normal trials for many different reasons. I can say as counsel that there are few sights more shocking to a lawyer than the photographic exhibits of the carnage caused by bombing or the horrifying first-hand accounts of anguished witnesses. Those memories remain with us for ever.
There are also few experiences more salutary to a lawyer than seeing at close quarters the effects of miscarriages of justice often arising because suspicion was allowed to fill evidential gaps; where there was misplaced belief in guilt operating in the background. It is not only the individuals who suffer in such cases. The repercussions for the rule of law are profound. The loss of public confidence is almost tangible when one speaks to audiences in the aftermath. The corrosive effect within the system is immeasurable. It is an understandable and instinctive response to acts of terrible violence to seek ways to bring the perpetrators to justice.
Society is entitled to take measures to act against rejectionist organisations who are not prepared to be involved in any dialogue. But this legislation is not the way. We must not dilute or play with the evidential rules within our system as the previous speaker suggested. The strength of a democratic society committed to the 56 principles of human rights and civil liberties is to live up to those principles where that society is being most tested. This Bill involves an erosion of the standards of a fair trial. It places incredible power in the hands of a single police officer. I hope that the Minister will listen to the warning of the noble and learned Lord, Lord Lloyd, about the evidential problems created by the Bill. As the noble and learned Lord said, a police officer's opinion that someone is a member of a proscribed organisation is only as good as his sources. One of the principles of our system of justice is that decisions should be based on evidence that is tested in cross-examination. Will the police officer who comes forward be able to produce that evidence or will he be forced, as we suspect, to say that it comes from informants, agents or infiltrators who are not available to be cross-examined? As often happens in cases in which I have been involved, will the officer be forced to claim public interest immunity as the basis of his opinion? If so, a judge must have in mind whether hearing that evidence in the absence of the defendant or his lawyers can properly contribute to a fair trial. The likelihood is that the case would have to be abandoned. The difficulty is that informants often have many reasons for lying: to secure benefit for themselves; to exact revenge; to save their own skin. For those reasons we want direct evidence, not hearsay.
Another evidential concern is that the corroboration suggested may be in the form of inferences to be drawn from silence. For those of us who have been involved in these cases this must be set against the background of terrorism where fear can silence people. Intimidation is frequently a feature of life where terrorism's writ runs. There is considerable danger in drawing an adverse inference from silence. Laws of this kind leave a legacy on the statute book even if they are in existence for only a certain period to deal with what is supposedly an emergency. Such laws have a corrosive effect and become a template for legislation in other areas of crime.
Holding fast to principle is crucial to the integrity of our legal system. We cannot put legal principles at the service of political expediency. I regret that that may be what we are doing in this Bill. The playwright Robert Bolt employed a powerful image in his play "A Man for All Seasons" based on the life of Thomas More. In that play More describes having his principles in his hands as if cupping water. He asks where we are once we open our fingers.
The Prime Minister and others feel that this is a necessary step in the sensitive choreography towards peace. I share the belief that compromises and concessions are imperative in that process, but legal principles should not be conceded. To change the rules because we are dealing with people we abhor is to corrode the system for us all.
§ 6.33 p.m.
§ Lord Avebury
My Lords, I agree with almost every word that the noble Baroness has just uttered. I was particularly glad to hear her remarks on the conspiracy 57 provisions. I very much look forward to seeing her in the Lobby when we divide on the amendment to leave out those provisions at a later hour in the evening.
The noble and learned Lord, Lord Mayhew, said that there was overwhelming pressure to introduce legislation in the aftermath of the Omagh atrocity. That is the key to this debate. We are here because of public pressure, or the feeling, as expressed by the noble Lord, Lord Cooke, that something should be done; that the communities in Northern Ireland look to us to take action; and that the whole country expects powerful and draconian legislation to catch the terrorists and bring them to justice.
However, I believe that it is unwise to enact any criminal legislation in the aftermath of a particular offence when very strong emotions have been aroused. That is the last time when one should be considering legislation of this kind. Amnesty International has pointed out that measures taken in the immediate wake of atrocities are rarely effective, frequently lead to miscarriages of justice and undermine public confidence in the rule of law. It is far more dangerous when those measures are rushed through in 48 hours.
The circumstances of this Bill may be unique. As far as I have been able to ascertain, certainly in the past 70 years, the House has never been recalled from a Summer Recess to deal with criminal legislation. Since 1931 there have been only two instances that I have been able to identify of recall to deal with legislation of any kind: first, in 1939 the Emergency Powers (Defence) Act was passed immediately before the outbreak of the Second World War; and, secondly, the National Service Act was similarly enacted in September 1950 over a single day's proceedings on the outbreak of hostilities in Korea. Therefore, these proceedings appear to be without precedent. Although the Government will get their way this evening, they have set an example that may permanently impair the rights of Parliament, which I strongly deplore. I hope that anyone who believes in the supremacy of Parliament and the control of the Executive by Parliament also accepts that view.
If the Omagh atrocity showed that there was a gap in the law then it should be considered properly and in the normal way, allowing for consultation with the judiciary, the legal profession, magistrates, human rights NGOs and the public at large. To introduce legislation in the middle of the Summer Recess which allows no time for Members to study the text—still less to obtain the advice of outside experts—is intolerable.
I am very grateful to the Minister's office for faxing the Bill to me at 19.30 hours on Tuesday evening. I was unable to apply my mind to it because I did not have the other statutes referred to in the Bill or the Notes on Clauses. The Library did its best to find those references for me yesterday afternoon, although all of the staff had been moved out of their normal accommodation into temporary lodgings in the Salisbury Room. I finally assembled all of the documents in the middle of yesterday afternoon only to find that there was a page missing from the Notes on Clauses. That is just a small symptom of the haste with which these matters have been dealt with.
58 The Omagh atrocity, shocking though it was, did not reveal any new threat to the peace and order of Northern Ireland which had not existed before. As has already been pointed out, the noble Lord, Lord Fitt, predicted when the Good Friday agreement was debated that that would not be the last time that we would hear of terrorism in Northern Ireland. Various splinter groups have not renounced violence and there may well be further terrorist crimes from time to time. But the number of people who are still actively committed to the use of terrorism is much smaller and the security forces should be able to concentrate their attention on those individuals, many of whom have already been identified. The task is to collect evidence against them sufficient to bring charges, and that should be easier with fewer suspects to target.
One consolation of the Omagh tragedy is that it has highlighted the solidarity of the Irish people, in both north and south, behind the peace process. If anything, the atrocity has redoubled their determination to reject violence and to that extent has reduced the case that might otherwise have been made for additional legislation. If terrorists do not have any support in the community they are more likely to be caught and punished under the ordinary law. The Omagh tragedy may also have helped pave the way for the statement by Mr. Gerry Adams that the war was over and the decision that has now been announced by Sinn Fein that they will take part in decommissioning talks. Those are the keys to permanent peace in Northern Ireland, indeed throughout the whole island of Ireland, not the stacking of odds against accused persons in order to secure convictions.
The need to align our law with that of the Republic is an argument of a political rather than a legal nature. The two Bills are in any case different in some material respects. The Irish Bill contains nothing equivalent to the admissibility of a police officer's opinion about the membership of the accused of a proscribed organisation. The reason is that that provision has been part of Irish law under the Offences Against the State Act since 1972. Therefore, for the past 26 years the law in the UK and Ireland has been different. Only now is it suddenly found so urgently necessary to bring it into line that we have to return in a panic. But return for what?
The noble and learned Lord, Lord Lloyd, in his devastating critique of Clauses 1 and 2, said that he does not believe that any additional convictions will be secured by means of those clauses. I am informed that in the Republic of Ireland the use of the testimony of a police officer has led to some wrongful convictions which have subsequently been overturned. I should have thought that that is the last thing we want to happen as a result of this legislation if it is to be ancillary to the success of the peace process.
As to the human rights aspects, Ministers know that according to Amnesty International the provisions infringe a number of international standards to which this country is a party. The UN Human Rights Committee, for instance, has already criticised the Criminal Justice and Public Order Act 1994, under which inferences could be drawn from the silence of the accused, which it said contravened Article 14 of the 59 ICCPR. As the Minister knows, that article gives everyone the right not to be compelled to testify against himself; and the withdrawal of the right to silence is constructive compulsion to testify against oneself. The ICCPR recommended that the UK amend the 1994 Act, yet here we are compounding the violation by withdrawing the right of silence from another group of defendants. I share the anxieties expressed, particularly by the right reverend Prelate the Bishop of Hereford, about the danger of creating martyrs by unfair convictions. It stands to reason that if the Bill makes it easier to secure convictions, the more likely it is that some people will be wrongly convicted.
There is also the case of Murray v UK, where the European Court of Human Rights found that the 1994 Act violated European conventions. The Minister dealt with that matter in his earlier remarks by saying that giving the accused the right of access to a solicitor at the moment when he is arrested and later when he is charged will remove the threat of any proceedings in the European Court or under the Human Rights Act when that comes into force in our domestic law. I must tell the Minister that that is not the opinion of Amnesty International, which states that between the moment of arrest and the moment when the accused is charged it is possible for him to be 48 hours without access to a solicitor and that that would give grounds for proceedings under the Human Rights Act or in Strasbourg. I understood the Minister to say that there was a possibility that solicitors might be allowed to be present during questioning. I should be grateful if he would amplify those remarks. It seems to me essential that if we are to avoid further proceedings in the European Court that provision should be introduced.
The Irish Bill contains no provisions analogous to those in Clause 5 of this Bill dealing with conspiracy to commit offences outside the United Kingdom. I agree with those who have said that there is no argument whatsoever for introducing that matter into the emergency legislation that is before us in the middle of the Recess, and if Parliament were really in the business of controlling the Executive we should simply not have tolerated this abuse of power. No doubt the Government will get their way in the end, because there is competition to see who can be toughest on terrorism, and words like "draconian" and "harsh" are bandied around as if they were terms of approval. Of course we want to make matters as difficult as possible for the men who commit dreadful crimes such as the bombings in Dar es Salaam and Nairobi, but it is not suggested that those atrocities were planned in Great Britain. What we have here is a large number of exile groups who are opposed to the governments of countries which have tortured and imprisoned them.
I fear that this Bill will give the police and security services carte blanche to go on fishing expeditions against every opposition group they can think of, but particularly where the government of that country are pressing us to get tough with their exiles. This is the beginning of the end of the tradition that we have valued so strongly in Britain of giving shelter to the victims of oppression. By this legislation we should make 60 Garibaldi and Kossuth into criminals; and even Burke, by his persistent and energetic advocacy of the cause of the North Americans would have been a suspect if the legislation had been in force in 1776.
We shall return to this matter at a later stage. Meanwhile I can only say that I am deeply disappointed that a Government who have made so much of their commitment to human rights should introduce legislation of this character at all and, even worse, that they should give Members of both Houses no time to prepare and should drive the legislation through both Houses in 48 hours.
§ 6.46 p.m.
§ Lord Bridge of Harwich
My Lords, in the aftermath of an earlier atrocity, comparable in many ways to the recent atrocity at Omagh, I with a jury tried six men for murder who later became well known as the Birmingham Six. The evidence in a long trial seemed very compelling to me and to the jury, who unanimously convicted the six men of murder. Sixteen years later, on a second reference by the Home Secretary of the case to the Court of Appeal, a division of the court—presided over, if I remember correctly, by my noble and learned friend Lord Lloyd—received new evidence which persuaded it that the evidence on which the Birmingham Six had been convicted was not safe and that therefore the conviction had to be quashed. Perhaps that makes me unduly sensitive about the possibility of miscarriages of justice. Despite all that has been said, I retain a sense of unease about the provision in the Bill that would make the opinion of a senior police officer that a man charged with membership of a proscribed organisation is such a member admissible in evidence. I echo the disquiet expressed by the noble and learned Lord, Lord Mayhew.
If this provision is to have what the Government describe as its intended effect of facilitating convictions which would not otherwise be obtainable, then it can do so only at the cost of securing convictions that will be inherently unsafe. I know that my noble and learned friends Lord Lloyd and Lord Ackner say that it cannot do so, it is futile. I hope that they are right, and I shall return to that point shortly. But let us consider the possibility that they may be wrong.
We can forget about the case where the police officer's opinion is the only evidence, because the Bill has excluded that. We need only consider the case where the police officer's evidence, with some other evidence, will facilitate a conviction which the other evidence by itself would not achieve. The illustrations given by the Minister in his opening remarks were of cases in which the police officer's evidence could be cross-examined effectively. But those were all cases where the police officer's opinion was based on matter which could be put before the court in the ordinary way; that is, evidence which could be led and to which the police officer's opinion that it established the defendant's guilt added precisely nothing.
The vice of this provision is that if it is to be capable of assisting the court to convict a man who cannot properly be convicted on the other evidence, it can do 61 so only if the court is to be invited to place some reliance upon the police officer's opinion in so far as it is founded on information available to him which cannot be put before the court; that is, information from secret intelligence sources and undercover agents who have infiltrated proscribed organisations or from police informers. Clearly, that evidence cannot be made available. So to the extent that the police officer rests his opinion upon it, the court cannot assess it or weigh it, the defence cannot challenge it. Therefore it will be wholly unsafe to place any reliance whatever upon it. That point has been made clearly, far better than I could make it, by my noble and learned friend Lord Lloyd. In the private little chat which he and my noble and learned friend Lord Ackner had about mice, they came to the common conclusion that the provision would be wholly ineffective. I hope that they are right, but it is wrong to put a provision like this upon the statute book which will put the judiciary who are invited to apply it in a difficulty.
I hope that my noble and learned friends are right and that the Northern Irish judges at the lowest level, who will be concerned with these cases, will quickly come to the conclusion that it would be wholly wrong to place any reliance on the untested evidence lying behind the police officer's opinion. That is all that gives the opinion any weight.
If they are in difficulty with it, there is one way in which that difficulty could be removed here and now, today. Now that Hansard is available to be quoted in the courts, if the Minister who replies to the debate on behalf of the Government goes on record unequivocally as saying that it is not the Government's intention that any judge in Northern Ireland or any jury in England, if the case were brought under the other clause, should place any reliance whatever on a police officer's opinion, in so far as it is based on evidence or information which cannot be examined in court, if that is stated unequivocally from the Front Bench on behalf of the Government, it will resolve the problem. I hope it will be so.
§ 6.52 p.m.
§ Lord Dunleath
My Lords, following the outrage and tragedy of Omagh, I believe that some comfort could be gained from seeing the Prime Ministers of the United Kingdom and the Republic of Ireland standing together and at last, after 29 years—and here I am at one with my noble friend Lord Cooke and the noble Lord, Lord Howell—pledging to do everything in their power to catch out the terrorists responsible. Once the Taoiseach had announced the recall of the Dail to introduce new and draconian measures to counter terrorism, it was inevitable that Parliament here would also be recalled. I am grateful that this is the case, and while I would disagree with those in another place and some noble Lords that it is a knee-jerk reaction or that we are acting as a rubber stamp, nevertheless I am extremely disappointed that the Bill could not have been published earlier and thus more time been available for its consideration.
62 I thought there might have been one answer through IT, and I decided to have a go at surfing the Internet. I am no expert on it. My elder son who is expert was back at school, so I had a go. I clicked on the button for House of Lords and the first thing I am afraid I found was a rather distasteful picture of almost naked young men disporting themselves. It was obviously the wrong place. It brings the House into disrepute and I do not know whether anything can be done about it. I tried again and reached the Parliament website, I believe it is called. I trawled all through it, but unfortunately could find no draft of the Bill whatever.
When the outrage occurred, I was on holiday in England and the first I knew of it was on buying the Sunday newspapers. My immediate reaction was to telephone as many of my friends as I could in the Omagh district, and I was relieved to hear that none of them had been caught up in the bomb. However, that modicum of relief was quickly dissipated when I returned to Northern Ireland on the Monday and began to learn at first hand of the horrific injuries suffered by many of those in Omagh on that Saturday afternoon.
While in no way wishing to appear insensitive or to take anything away from the unbelievable medical expertise that exists in Northern Ireland, the often expressed view for some of those unfortunate people is that maybe it would have been better if they had died.
It is against that background that I find it quite unbelievable to hear that a number of Members in another place voted against the measures before us today in the belief that they might infringe the civil liberties of terrorists. What about the civil liberties of the victims of terror?
I consider it a privilege that I have the opportunity to play a small part in the setting up of the John Keegan Trust, in memory of the acclaimed Northern Ireland actor who died earlier this year and whose objectives are to help those suffering from loss. The victims of loss in Omagh and their relatives will need all the help they can get.
Returning to the Bill, I too ask why internment is not brought back onto the statute book. I am not convinced that it will ever be needed. We all know why it did not work in the 1970s. Those failings do not exist today. Re-introduction would have to be in conjunction with it being applied in the Irish Republic, where I understand it is still an option, for it to work effectively. It would be unacceptable if delay occurred while legislation was enacted, if it were decided that internment was an option.
On the other hand, I am pleased to see that an international element has been introduced into the Bill. I well remember the unsuccessful amendment moved by my noble friend Lord Monson in the sentences legislation. As recent events in East Africa and elsewhere have shown, terrorism is a truly international problem.
I also welcome the notion of the confiscation of assets of terrorists who are convicted. I noted earlier on that the noble Lord, Lord Holme, questioned the situation with regard to homes or farms owned by the terrorists. I understand from what the noble Lord, Lord Williams 63 of Mostyn, said that the confiscation applied only to assets; in other words the ill-gotten gains of terrorism. If the farm was legitimately owned, presumably it could not be confiscated. If, on the other hand, it was a godfather's mansion—and, my goodness, there are plenty of those—I believe it would be confiscated. I totally support that and hope that the Minister could confirm it later on this evening.
As I mentioned before, like many other noble Lords, while I am concerned at the haste with which the Bill has been introduced, the limited time for consideration and the inevitable flaws and omissions that will result, I have no hesitation in supporting its broad objectives.
§ 6.58 p.m.
§ Lord Kennet
My Lords, I shall be brief because in practice, in terms of future history, all that needed to be said about the Bill has already been said by the noble and learned Lord, Lord Lloyd. I hold the belief, which I think is not widely shared, that there is only one respect in which this Parliament is superior to others in the world. That is the presence of the top layer of the judiciary in the Legislature, where they can remind us, day by day, of the reality of what happens to justice when we have conceived the idea of it here and they have to put it forth into the reality of people's lives. I found his case completely convincing, but would hesitate to judge what the Government ought to do at this late stage in the history of the proposals.
There has been a lot of talk in the debate about the unprecedentedness, the oddness, the outrage almost, of calling the two Houses together in the middle of the Summer Recess. I think there is something in that. What is happening now that was not happening a month ago? What is happening now which we can be sure will not happen a month hence? At either of those times, the House would have been here in the course of nature and the Bill could have been rationally studied and taken at the normal pace.
I have searched for events which might provide an answer to that question. The obvious one is the outrage at Omagh—which is a very big and terrible one—but, after 30 years, it was not different in nature from such things which happen all the time on a smaller scale. It may sound harsh to say that but one must be ready to hit with everything that one has got as long as it does some good. I speak to the noble Lord, Lord Dunleath, on this.
It might be to do something pleasant for President Clinton when he comes to Northern Ireland. How glad we are that he is coming and that it is now possible for him to come because of the measures that have been taken in the United States to put a stop to the free collection of money for terrorism. The answer may lie here. I do not know how Ministers' minds work now; it is so long since I was one.
Clause 5 and the following clauses are rather strange in this: they include something which has not been mentioned until now. Subsection (14) says that none of the duties imposed shall apply to servants of the Crown. Reading that straight through with an open mind, one 64 comes immediately to the conclusion that if one wanted to be or control a really effective terrorist abroad, and one was operating in London, whether British or not, and yet avoid the dangers inherent in this Bill, one would seek employment as a minor civil servant or any other sort of servant to the Crown—I am not sure what the current definition is—and then the Bill could not touch one.
There is a question of international discrimination about this. If a minor British civil servant or British diplomat, for instance, is immune to the penalties provided in this Act, how can diplomats or civil servants of friendly governments working in London not be immune in the same way? You see how the mind may explore unfamiliar avenues.
I forgot to mention the events which have happened in the last month, the two atrocious attacks on the American embassies in East Africa, which are the foulest sort of terrorism. It is a horrible crime to wish to blow up peaceful diplomats. It is even more horrible to kill innocent bystanders to ten times that number.
There may have been American pressure on our Government to do something to help catch those guilty of that action. We have to remember that terrorism is something that may be carried out not only by hard core criminals who have never been near a government office, but also by governments. The examples are legion in the modern age. It is regrettable that the United States has been—and, I would contend, is still—among the terrorist governments in the world.
Let me give two examples to substantiate that claim. The CIA laid mines in a Nicaraguan harbour in the 1980s, meaning to damage the then Nicaraguan government. A British ship was blown up by one of these mines. The United States was taken to the international court in The Hague, which decided against it and said that it was an act of terrorism or piracy or whatever.
I do not wish to assert that the following has happened, but it is possible that it has. More recently, the American reaction to the blowing up of the embassies in East Africa included the sending of Cruise missiles in a successful strike against a pharmaceutical factory in Khartoum. It has been loudly announced from Washington that there was very good evidence that this factory was producing chemical weapons or precursor chemicals for chemical weapons. Our Prime Minister has loudly endorsed that view of what must have happened, and applauded the American action.
However, the German Government—who also applauded the American action—have now been given the lie by their own ambassador in Khartoum. He says that this interpretation is nonsense. He has known this plant since he attended its opening. It is completely open in all its functions and it is not making chemical weapons. Our own ambassador—although he has not belied his Government's stance on this matter—was also present at the opening and should have an independent opinion of what this plant was up to.
In any case, the Americans do not claim that the bombing of that plant was in direct retaliation for the bombing of their embassy. It was a new act of: what? 65 Of unofficial aggression? Of forgetful destructiveness? Or was it terrorism? There is a great deal of long grass around here.
If any government are to exempt their own servants from the penalties laid down by the law against terrorism, let them watch out for possible claims that that exemption should be extended to the employees of friendly governments operating in our midst.
§ 7.5 p.m.
§ Baroness Park of Monmouth
My Lords, will this Bill, presented as draconian, allow the RUC and security forces to act effectively against not only the Real IRA—the chosen scapegoat of both the governments and of Sinn Fein/IRA—but eventually enable us to catch the leaders of the Provisional IRA? The PIRA is not a proscribed organisation but it is the directing force. There is a real danger that we shall end up enjoying only limited powers against the foot soldiers and not the generals—unless of course the proposed new Section 2A(2)(b) within Clause 1 does cover the PIRA. I shall be happy if the Minister tells me that it does. I hope so. Otherwise both governments, concerned to build more bridges for the IRA, may end up powerless to act against the real hierarchy of violence. It suits both the IRA and Sinn Fein/IRA, its political wing, to disown the alleged mavericks, but they and other groups like them will surely rise and be supported and funded, not only by the Galvins of Noraid but by the Provisional IRA army council facilitating or turning a blind eye to their access to semtex and other sophisticated weapons.
Mr. McGuinness has been appointed to speak for Sinn Fein/IRA with the decommissioning commission. We were told by the Secretary of State in the context of the Northern Ireland (Sentences) Bill as far back as July that the political party with which PIRA is associated was even then having discussions with that body. What were they talking about then? What does "co-operating fully" mean? What has changed now? What formal public authority has been vested in Mr. McGuinness by the IRA, which alone holds the weapons and controls them? We have been told often enough by Sinn Fein/IRA that they have no guns and no authority.
The Dublin Government already has many of the powers now to be vested—although, I fear, emasculated—in the RUC. They have pointed out that they cannot use internment, which they already have, because we have abolished it north of the border. The Irish Taoiseach speaks of the legislation only too often in near IRA speak. For instance, he stresses how imperative it is for the governments to get on with the de-escalation of security measures rather than forcing the pace on decommissioning. By that Mr. Ahern means the security measures in the Belfast agreement—the removal of security installations, the removal of emergency powers, the reduction in the numbers and role of the armed forces to a level compatible with a normal, peaceful society. He was urging that two or three days after Omagh where indeed the security installations had been removed at the frontier and the Army had been withdrawn to barracks, leaving the way that much freer for the bombers.
66 I suggest that the governments are in danger of regarding enacting legislation as synonymous with action, at least so far as Northern Ireland is concerned. The Dublin Government allowed Mr. Galvin to go to Dundalk to talk about fundraising for the Real IRA a week after Omagh. Will President Clinton be asked about that? I shall be glad to know what measures are being taken by the Americans. Mr. Adams and PIRA are very happy with the situation when they know quite well that nothing which can actually impair the power of the IRA itself can happen and where the Unionists, urged by the Government to be statesmanlike and to be grateful for what the IRA have said through Sinn Fein, will have to let them into the government without a single ounce of semtex being given up and with the IRA prisoners freed without any demeaning bargaining—for that is evidently what the Secretary of State regards it as—over decommissioning as a quid pro quo. All that will happen is that Mr. McGuinness will appear with a list of requirements for the withdrawal of troops and the emasculation of the security forces. The IRA has said many times that that is what it means by decommissioning. The deadline set for the end of the amnesty period in the decommissioning Act is 27th February 1999. Is there the faintest prospect that Mr. McGuinness, let alone the IRA, will have produced anything by then? I doubt it.
Northern Ireland needs to see really effective action taken against the Real IRA and its godfathers who are at present protected by a ceasefire which is irrelevant while its surrogates can bomb and kill. This is why it is so important that the RUC should not find itself possessed of nothing but a blunt instrument in this legislation and one which it will be vilified for using. Much as I respect those noble Lords whose first concern is human rights—of course we must be concerned about them—I hope they will remember that in Northern Ireland, where jurors and witnesses are systematically threatened and intimidated, their rights are at stake as much as those of the accused. If the Act ends up with too many restrictions on action, the legislation, a rather toothless dragon anyway, will not deliver any kind of peace, which is why so many of us place the destruction of weapons so high on the agenda.
I wonder whether we might if necessary consider a concentrated action north and south of the border, backed by both governments, to seize and destroy the weapons' dumps. Forget about the people; take the guns away. Remove the guns and we will reduce the men of violence to their proper level as thugs and criminals. Then honest men will be able to testify to their crimes in greater safety. I very much hope that stronger legislation will be provided, but I frankly think that it will remain toothless.
§ 7.13 p.m.
§ Viscount Runciman of Doxford
My Lords, like the noble and learned Lord, Lord Ackner, I initially put down my name to speak in the mistaken belief, as it turns out, that we were being asked to look at measures which might seriously compromise the burden and standard of criminal proof, to say nothing of European legislation. I should still like to endorse in principle 67 much of what was said by the noble Baroness, Lady Kennedy of The Shaws, about the wider issues which that prospect would raise, not least the need to avoid the incidental but unhappy side effects of miscarriages of justice being perceived as a serious risk in the community which we all wish to protect. But, in fact, in the light of what the Bill now before us contains and the speeches to which I have listened so far in the debate, I intend to make a speech of a slightly different kind. I do so, let me emphasise, not on the basis of any knowledge of the situation in Northern Ireland, but purely on the basis of my experience of these matters as chairman of the Royal Commission on Criminal Justice in England and Wales which sat between 1991 and 1993.
Some of what I had intended to say was said better and with more authority by the noble and learned Lord, Lord Lloyd of Berwick, who I am delighted to see has arrived back in the Chamber just in time to hear me pay those respects to him, so I do not need to repeat that. But I should like to add a slight gloss, prompted by the remarks of the noble and learned Lord, Lord Mackay of Drumadoon, who drew our attention to the fact that the Scottish law on corroboration is different from that which applies in England and Wales. I believe that its provisions, as I understand them, or as I remember thinking that I understood them, are very pertinent in terms of trying to predict what will and will not happen if prosecutions are brought under Clauses 1 and 2 of the Bill before us.
As I understand it, the essence of the Scottish law of corroboration is that no one can be convicted on information coming from a single source only. There must be two sources. They must corroborate each other and they must be separate. To the extent that that will continue to be a requirement on the Crown if it is to prove its case, I hope that that will have the practical effect of encouraging the investigating and prosecuting authorities to look seriously for what, if it came before the court, could and should be counted as effective corroboration in cases of this kind.
I dare say that the noble and learned Lords, Lord Lloyd and Lord Ackner, will say to me that in practice they will not be able to do that, so that this does not alter the conclusion—I say again that I entirely share the views which they have expressed—that convictions will not be obtained solely on the basis of the innovations contained in the Bill; and where they do I have little doubt that the conviction would stand a very high chance of being overturned on appeal. In that case I can fairly be asked what I think ought to be done.
Some people have spoken persuasively for the case for internment as such. But that is not what we are being asked to debate today. That is not on the agenda. It raises issues of a different kind. I shall say no more than that, if we were asked to consider internment, I, and I am sure many others in the House, would think very hard before opposing such a suggestion if we believed that there was a serious chance that innocent lives could be saved. But, as it is, we are being asked to consider 68 measures which the Minister has made clear to us he believes do not in any way infringe on the burden and standard of criminal proof.
If, therefore, he is right about that and the noble and learned Lords, Lord Lloyd and Lord Ackner, and I, for what that may be worth, are right about what will or will not happen in practice, then the point Ministers should take is the one that was made later on in the speech of the noble and learned Lord, Lord Lloyd. I should merely like to add one comment, which he could very well have made with more authority than I but did not make himself, that the difficulties which he so eloquently described as confronting the investigating and prosecuting authorities are familiar also to those who investigate and prosecute cases of serious and violent crime which have nothing to do with terrorism. This is not an unfamiliar problem. I could enlarge on that if it were relevant, but it is not. I shall try to keep within the eight-minute time limit.
There are things which can be done. There are some things which have been done since the recommendations of the Royal Commission which I chaired were acted on, as they were, which increase the chances of securing convictions without in any way abrogating the rights of suspects and defendants. We are here dealing with questions not only of admissibility—I again endorse what was said by the noble and learned Lord, Lord Lloyd of Berwick—but also of resources. As he was speaking, I was reminded of what I learnt those few years ago about what can be done and is done in the United States in cases of this kind. Given the resources, by which I do not necessarily mean only the financial resources, but these things do cost money, and given the whole apparatus of serious law enforcement under a federal budget with which the authorities in the United States are able certainly with some success to deal with opponents at least as formidable as those whom we have in mind, there are measures which could be taken which would increase the chances of achieving what everyone who has spoken, and I am sure everyone in the House, would like to see achieved in terms of the objectives with which the Government have made the case for so-called draconian measures. If what the Government wish to do is to consider whether the existing provisions for dealing with outrageous crimes of this kind are inadequate, it is quite right that they should look at ways of strengthening them. The ways to do that were outlined so eloquently by the noble and learned Lord, Lord Lloyd of Berwick, and not simply by passing—and I am happy that we should—Clauses 1 and 2 of this Bill.
§ 7.20 p.m.
§ Lord Bridges
My Lords, my brief contribution will comprise one general observation and two specific questions. I begin with the observation. I fully understand the Government's reasons for introducing the Bill. Looking back over the history of the Irish question for the past 25 years, there has been a remarkable continuity of policy between successive British governments. I am happy to pay tribute from the Cross-Benches because I believe that the success of the Belfast agreement—it is a success as far as it goes— 69 depends very much on this continuity of policy. We can see that the elements of the Belfast agreement were already present in the Sunningdale agreement and in the Downing Street declaration—that is to say, power sharing in an elected assembly; a commitment to end violence by all concerned and a sense of shared responsibility between London and Dublin. That last point has been the biggest improvement in this period. It is the feature which has changed most in this period; namely, the welcome increase in trust and common understanding between London and Dublin. The Dublin Government have made a commitment to take stronger measures to contain terrorist organisations within the Republic. That has caused our own Government to introduce a Bill in the belief that its measures will parallel those introduced in the Republic. I believe that that is a good bona fide reason and I sympathise with the Government's motivation and thinking.
The two specific matters that I put to the Government relate, first, to the process of proscription and, secondly, to the new offence in Clause 5. As regards proscription, I am puzzled by the words used in Clause 1, new Section 2B(1)(b), which states that an organisation is specified if it,forms part of, an organisation which is proscribed for the purposes of this Act".The noble Lord, Lord Williams, has described to us very clearly the way in which he believes a person accused of belonging to a proscribed organisation would be able to cross-examine the police officer who gave that evidence. But the question I wish to raise is the prior question as to the way in which an organisation is proscribed in the first place. Does that rest on a statutory base or is it merely a procedure with which we have become familiar? It is important not only that the person accused of belonging to a proscribed organisation should be able to challenge the evidence on which he is accused, but also that the nature of the proscription itself should be subject to some judicial process of review.
Perhaps I may take an imaginary and not, I hope, too frivolous example. Let us imagine the case of a police officer patrolling the streets of Londonderry. It comes to his notice that on a Friday evening there is a group of young men on bicycles who go around the alehouses and pubs and make disobliging remarks about the public authorities. Being a conscientious officer he records this in a file note when he returns to the police station. That is looked at by a superior officer who makes further inquiries and finds that the young men are riding bicycles without lights and a lot of them are left-handed. It is not entirely imaginary to suppose that a file will eventually arrive on the desk of the Secretary of State for Northern Ireland proscribing the young men who ride bicycles in the Bogside. That may be an absurd fantasy, but odder things have happened, and not only in Ireland. They should be subject to some process of law; namely, that proscription is not something which is made on a nice, clean piece of paper, but is capable of judicial examination. That is my first point.
The second point is broader and perhaps rather more fundamental. It relates to the new offence in Clause 5. Again, I can understand the reason for introducing this clause. It was very embarrassing for the French 70 Government last year when there were riots in Algiers. They turned to us and complained that the atrocities were being planned by a group of people resident in London. We had to inform the French Government that that was not an offence under English law, as I understand it. The present Bill is designed to rectify that situation.
The point that concerns me is rather different from those which have been mentioned by other noble Lords during this debate. I am concerned about the penalties which the court might impose on such an illegal conspiracy. What worries me is that the court might naturally decide that this was a conspiracy which was detrimental to public order and good discipline and that the people concerned should be locked up in a British gaol for a period of five years. If that were to happen, the whole weight of the terrorist organisation would then be directed at the British Government and British institutions abroad. We should not allow that to happen. In my view, there should be a statement on the face of the Bill which gives guidance to the courts on the action they should take by way of sentence. That should not be incarceration in a British gaol, but expulsion or extradition. What happened was that a group of foreign citizens had been conspiring on our territory against a power with whom we have more or less friendly relations. They have abused our hospitality and we should expel them or, if we have reason to do so, we might extradite them.
It is also relevant to examine the whole question of extradition in this context. I have had some experience of handling extradition cases when working in embassies abroad. It seemed to me that most of our extradition and bilateral treaties were written at the end of the last century. It was one of the first serious international, legal activities which took place. It was seen to be very progressive that one could remove a person from one jurisdiction and have that person tried in another. But in many cases the laws themselves do not really correspond to our current needs. I believe that there has been some talk of a review of our extradition legislation. I very much hope that the Government will be able to do that. Therefore, I hope that the Government will be able to answer those two questions.
As regards Clause 5, I believe that the absence of any guidance to a court on the avoidance of a prison sentence is so fundamental that I am inclined to sympathise with the view of the noble Lord, Lord Avebury, and to join him in the Lobby when the time comes for us to consider his Question as to whether Clause 5 should stand part of the Bill. I can imagine few measures which would be destructive to British citizens, their lives and property than to incarcerate these people in gaols in this country.
§ 7.27 p.m.
§ Lord Desai
My Lords, hard as I try, I find it very difficult to like this Bill. Clauses 1 and 2 have already been dealt with thoroughly from a legal angle by many noble Lords. We know that those clauses are not going to be effective, or, if they are, the convictions will not stand up in a higher court.
71 But much more than that, I believe that the lesson that we should have learnt from the beginning of the Troubles to the Good Friday agreement is that, while we had to be tough and a lot of the terrorists had to be sent to gaol and our laws became punitive, eventually success was achieved not through law but through the politics of compromise and inclusion. Peace came because we started talking to people whom we used to think of as terrorists. The process was started very bravely by the previous government and it has been continued by this Government. Had we not done that we would not have the prospect of peace that we have today.
This Bill now goes against that trend. We are once again saying that we are going to be tough. There is the danger that if there were a wrong conviction—we have had many examples of such convictions which have had to be reversed—we would create martyrs and recruit more people to the small organisations.
I want to speak against Clause 5. It is hard to see ourselves as others see us. I spent August in Islamabad, Pakistan. After the atrocity in Kenya and then the American bombing of Afghanistan and Khartoum, I could see that, seen from the perspective of a Moslem country and Moslem neighbours, the Americans had no justification whatsoever for behaving in the way they did. They defied international law and because they are a superior power—we live in an unequal world—they got away with it. However, it was not a legally defensible action.
I remember when the Cuban missile crisis occurred the amount of evidence that was put before the United Nations by Adlai Stevenson. Much evidence was submitted on that occasion, but no evidence has been submitted to support the theory that the Khartoum factory produced nerve gas. There is no clear evidence—although there is a strong belief, of course—that the bombing of Nairobi and Dar es Salaam was carried out from headquarters in Afghanistan. Of course the entire Mujahidin movement in Afghanistan, and its leader Osama bin Laden, was created by the Americans when they wanted the Mujahidin to fight the Soviet Union. The bunkers were financed by the CIA, which is why it knew where they were.
It is interesting to note the outrage throughout the Arab world at the bombing. I think there is some justification for that because, although President Clinton said that he was not fighting Moslems, the articles I read and the people I talked to stated that he would of course say that. However, the Americans have bombed Libya, Iraq, the Lebanon and Afghanistan. Therefore they have been selective as regards those countries. I do not want the UK to get involved in that. I very much welcome the comments that have just been made by the noble Lord, Lord Bridges, that if we pass Clause 5 we shall identify ourselves with an American policy which is meeting with little success across the Middle East. America may have some reasons for doing what it does. We are allies, but we do not have to be so closely identified with America that we lose such freedom of manoeuvre as we have. After all, the policy of the European Union is not identical to the policy of the USA 72 in the Middle East. If we pass Clause 5, I believe we shall be subjected to the same kind of bombing of our embassies and high commissions which we very much wish to avoid.
Others have already remarked that one of the advantages the UK has gained from allowing some dissidents to settle here is that we have been able to maintain good relations not necessarily with present governments but with the future governments of certain countries. The noble Lord, Lord Molyneaux, said that he does not believe that one man's terrorist is another man's freedom fighter. However, Jomo Kenyatta, Nelson Mandela and Menachem Begin—to give just three examples—were all denounced as terrorists but all proved to be successful political leaders of their countries and good friends of the United Kingdom. Therefore there are terrorists who are freedom fighters. It depends which side one is on. At present quite a few Moslem groups who come from countries with rather ghastly governments welcome the fact that they can live in this country. If we drive them out, we shall be subjected to some horrendous attacks which I would very much wish to avoid.
§ Lord Chalfont
My Lords, before the noble Lord sits down, I hope I may comment. I did not wish to interrupt him while he was in full flood. He said there was no evidence of the origin of the planning of the terrorist attacks in Africa upon which the Americans acted. Is the noble Lord prepared to accept that there is in fact strong evidence but it may not be available to him and to the international press?
§ Lord Desai
My Lords, that is why I gave the example of the Cuban missile crisis. If you have evidence you must present it in a court of law. However, because the Americans have more bombs than anyone else they do not have to do that because of Security Council power. No court of law will convict a person because someone says, "I have evidence about this but I cannot give it to you". No international court will accept that. That is the law of the bully; that is all it is.
§ 7.35 p.m.
§ Lord Marlesford
My Lords, I think in a way this will prove to have been a sad occasion in retrospect because it will prove to have been a great missed opportunity. The Government caught the tide when public opinion in the island and in the rest of the British Isles was ready for effective legislation against terrorism in its widest sense. However, they have failed to ride that tide. Yesterday in another place the debate showed this throughout 12 hours or so. I wish to quote from my right honourable friend Mr. John Major, who said,we should legislate with great care and it would have been better had we done so with more time for consultation and consideration. In so doing, we might produce more effective legislation and avoid injustices that we might perpetrate today … The Government deserve support for their intentions, but their approach runs the risk … of producing bad legislation that has side-effects that we shall not have considered, such is the speed with which we are to deal with the Bill".73 Mr. Tony Benn put it rather more crisply when he said,We are being treated as though we were the Supreme Soviet, simply summoned to carry through the instructions of the Central Committee".Frankly, I think there is little left of this Bill after the comments made by a number of noble Lords, particularly by my noble friend Lord Mayhew, and most outstandingly by the noble and learned Lord, Lord Lloyd of Berwick. That was backed up by the noble Viscount, Lord Runciman, and also by Mr. David Trimble, who said yesterday in another place,I very much doubt that we shall secure any convictions in Northern Ireland on the basis of the Bill. I say that on the basis of what little knowledge I have of the judiciary in Northern Ireland and of the practising legal profession in Northern Ireland".0 It is sad that that seems to be a widely held and informed opinion. If we had had next week in which at least we in this House could have scrutinised the Bill, that might have produced something much more useful.
I believe that the Bill focuses on the wrong targets. It focuses on the organisations of terror. Both the Loyalist and the Republican terrorist traditions have always been kaleidoscopic. They constantly change their patterns, certainly since 1921, when Michael Collins was murdered—on the instructions of De Valera—when he returned from London having signed the Anglo-Irish Treaty.
In 1966 the Ulster Volunteer Force was formed in opposition to the IRA. The IRA then became discredited and slogans appeared in Belfast, "The IRA—I ran away". The Provisional IRA emerged in 1969. Now we have Continuity IRA, the Real IRA and INLA. Am I too cynical in believing that the main incentive which persuaded Sinn Fein to sign up to the Good Friday agreement was to get its people out of prison? Sadly, I believe this release programme may have proved a huge incentive to terrorism. The "godfathers" of terrorism do not belong to these organisations or, at any rate, if this legislation goes through, they will cease to do so. The legislation is all based on proving that they are members of organisations. How many Mafia godfathers in America sit on the boards of the companies that they control? How many Communist leaders were members of the front organisations through which they used to seek to foster world revolution? They are too clever by half to fall for this.
We should be thinking in terms of the groupings which have formed the basis of terrorism in Ireland. First, there are the nationalists, those people who for 800 years, since Henry II, have felt the ill treatment of Ireland, by successive groups from this island—a very real and justified feeling. Many of them still regard the settlers as aliens, even though they have been there for 300 years. Secondly, there are the Marxists, those who believe in the united socialist Ireland. As a journalist, every year between 1976 and 1990 I used to attend the Labour party conference. I remember that I used to go with some enjoyment and certainly interest to the fringe events when Mr. Gerry Adams, who was a leading exponent of the Marxist solution, would year after year entertain us all with his fireworks advocating the united socialist Ireland. Thirdly, there are the hard men, the killers by instinct, the thugs by nature, typified by 74 Mr. Martin McGuinness and his psychopaths, those people who, because they enjoy inflicting pain, are his willing tools.
Finally, there is the biggest group, the Mafia, the godfathers, those who live by extortion. As the noble Earl, Lord Longford, said, we have tolerated them for far too long. Do noble Lords realise that until five years ago companies were able to claim a tax deduction for the protection money they paid to terrorist organisations, whether they were Republican or Loyalist, so in practice the British taxpayer was directly subsidising a large part of the funds of those organisations? Those organisations will not change; they are not interested in politics. Nobody can offer them a better way of life than they get at the moment.
I think that we have really missed an opportunity and that the Bill has aroused expectations which will not be met. That will produce disappointment which will be followed by disillusion. That, I believe, will be very dangerous.
The optimism of our Prime Minister is one of his most engaging characteristics. Indeed, I suspect that if one is Prime Minister optimism is almost essential as a means of withstanding the pressures of that high position. Yesterday he said:violence and terror represent the past in Northern Ireland, and democracy and peace represent the future in Northern Ireland".I wish I could feel he was right.
§ 7.42 p.m.
§ Lord McConnell
My Lords, at this late stage I do not intend to delay the House for long. Many points I might have made have already been made ably by other noble Lords. But I should like to add my voice to the protests that have been made about the haste in which this Bill has been produced and brought before this House.
I received a copy of the Bill only when I arrived here today. We are supposed to be a revising Chamber. This is a Bill which is complicated and which deserves careful scrutiny. I cannot understand why we could not have been given even another week, as one noble Lord said, or why it could not have been left to the beginning of the next Session so that the Bill could be discussed, any defects pointed out and the necessary amendments made. It is not very complimentary either to this House or to the other place to ask them just to take the measure for granted and put it through all its stages in one day.
Tough measures are proposed in this Bill. That seems odd, in one way, to an outsider when we also hear that unrepentant convicted terrorists, who have access to arms, are to be released. Then we have this measure to convict some other terrorists. I wonder how long they will be in prison before they are released if they are put in under these provisions? It is hard to justify these two different aspects of the Government's present policy.
A short while ago a Bill went through this House which proposed the abolition of the power to intern. Subsequently, that of course became law. Now I think the Government might take a slightly different view. When the noble Lord, Lord Molyneaux, and I objected to the removal of this power we were regarded as almost 75 some kind of savages who wanted this provision kept. I feel now that the Government have let down the Irish Republic. The Republic kept the power of internment but it is not much use to them if the people they are to intern can run across the border into Northern Ireland, where there is no power to intern them. It was said at that time that of course if we ever needed it we could introduce more legislation. But one of the crucial aspects of internment is that it should be done suddenly before the people who are to be interned have time to escape into another jurisdiction. If it is reintroduced, even in a rush like today, that will give them plenty of notice. So this has been an opportunity lost and one which could have been exercised in conjunction with the Irish Republic.
There is a great deal of talk about named organisations. As we have seen from history once your organisation is proscribed it is the easiest thing in the world just get another name and say, "This is a different organisation". If the Government cannot see the possibility of that happening, they are not being very farsighted. Nevertheless, I hope that some good can come out of the Bill.
§ 7.47 p.m.
§ Lord Donaldson of Lymington
My Lords, I should have no problem with this Bill if the end product was not a criminal conviction but an executive decision to intern coupled with some appropriate system for appeals. Internment, in my view, is a perfectly proper response by a democratic society under threat by force of arms from a tiny minority of its citizens where positive identification is difficult or impossible but reasonable suspicion can be established. It is a blunt instrument, there is no doubt about it, and inevitably some would be interned who, if the full facts were known, would not be. However, this, like having one's mail intercepted, having one's telephone tapped, being placed under surveillance or, in a quite different context, being conscripted into the armed forces in time of war, is part of the price that citizens of a democratic society have to be prepared to pay. Imprisonment following a criminal conviction is in a wholly different category. It involves punishment for a proven offence against that society.
Some time ago a detective inspector wrote to one of the broadsheets suggesting that the fight against crime in this country would be much more successful if the courts concentrated on finding out the truth of an allegation that a crime had been committed. What he was objecting to was, of course, the standard and burden of proof and the strict rules of evidence which are insisted upon by the criminal courts. It is a superficially attractive suggestion. I think that, if he had taken a poll of the country, he would have found that the vast majority of ordinary citizens supported him. But it ignores a fundamental principle of the rule of law as we have always known it; namely, that it is far better that nine guilty men should go free than that one innocent man should be convicted. In fact, I would put the odds 76 a great deal higher than that. Hence the fact that the scales of justice have always been heavily weighted in favour of the accused.
Objectively, there is of course a miscarriage of justice when the guilty are acquitted, or when a guilty man has his conviction quashed on appeal because he was not given the full benefit of that weighting of the scales of justice, whether or not that was known to the trial judge or jury. However, in my book they are not miscarriages of justice. They are manifestations of the justice system as we have treasured it for so long operating as it was intended to operate. The only true miscarriage of justice is for an innocent man to be convicted and his appeal to fail; and that I am convinced is a very rare occurrence. Although with over 50 years' interest in the law I have read of one or two, I have no personal experience of such a situation.
The Home Secretary in another place, and the Minister in this House, say that the burden of proof under the Bill continues to lie with the prosecution, and that the standard of proof continues to be the establishment of guilt beyond reasonable doubt. That is quite right. But under the Bill, although the prosecution still shoulders the burden of proving guilt, it is involved with a much different and lighter burden. The police officer's opinion upon which the prosecution can rely will be based, as has been pointed out, upon a body of evidence much or all of which would be inadmissible as such. I have in mind hearsay, telephone intercepts and the opinions of others such as members of the security services. In most cases, public interest immunity is likely to make effective cross-examination impossible, or at least wholly ineffective. In many cases indeed the officer may have no personal knowledge of the matter whatsoever. He will, in a word, be performing the task of the court but without any of the usual safeguards and without the court's independence.
In addition to that, the prosecution's burden will or may be lightened by the abridgement of the accused's right of silence. As has been mentioned, the present caution unless modified will be wholly misleading. At the risk that many of your Lordships may not have been cautioned recently, perhaps I may remind them that it reads, "You do not have to say anything but it may harm your defence if you do not mention something which you later rely on in court". In other words, it is stopping the defence ambushing the prosecution.
However, that will now have to be revised in a major way. It will have to say something to this effect: "You do not have to say anything until after you have had a chance to see a solicitor. But if thereafter you fail to mention something material to the defence which, I must remind you, could reasonably be expected to be mentioned and which, I remind you of this even more, includes evidence helpful to the prosecution as well as that upon which you will rely, your guilt may be inferred". It is a startling proposition that one can infer guilt from a failure by an accused person to prove the case out of his own mouth.
It may be said that no such inference can be drawn from the omission to mention a matter supporting the prosecution because the accused could not reasonably 77 be expected to mention it; and under the terms of the Bill one cannot draw inferences unless he could be expected to mention it. But, if so, it is very difficult to see what purpose this provision serves.
Much play may be made—it may be in reply; I do not think that the point has been made yet—with the fact that the police officer's opinion as to the guilt of the accused, while admissible in evidence, cannot be the sole basis of a conviction and that the same applies to inferences from the silence of the accused. However, as I read the Bill, the two together can indeed form the basis of a conviction. It may not quite be a case of nought plus nought equalling one, but it comes perilously close to it.
I suggest that this modified burden of proof which in future is to be shouldered by the prosecution bears no resemblance whatsoever to that which has underpinned our system of criminal justice for at least a century. The proposals contained in the Bill will either be ineffective, as has been suggested by many speakers in this House who are in a position to know, because the courts will be quite unable conscientiously to be sure beyond a reasonable doubt; or the provisions will constitute a charter for internment dressed up to look like the result of criminal justice. Either outcome would in my judgment be wholly lamentable. Internment rather than prosecution is the appropriate response in a situation where you have a small group of known terrorists who need to be incarcerated for the protection of the majority, and you cannot legitimately prove their identity.
§ 7.55 p.m.
§ The Earl of Onslow
My Lords, two days ago I was telephoned by a Chertsey solicitor on the subject of a small conveyance done by my great grandfather. This may sound an extraordinary introduction to a speech on a Bill of this seriousness, but its relevance I think will become apparent within the three minutes I have allotted myself.
We set to talking about the Bill. It had not then been published. We did not know that Clauses 1 and 2 were to be modified. We both felt that this was deeply offensive to anyone with a liberal legal tradition. We felt that it went against the traditions of English jurisprudence, to which the noble and learned Lord, Lord Donaldson, referred. We felt that it was to be rushed through with ill-considered haste. Even if it were necessary, why had the measure not been passed 30 years ago when the whole thing started? We also felt that the likelihood of martyrs being created was substantial.
The reason that I mention that solicitor is that his son was killed at Omagh.
§ 7.57 p.m.
§ Lord Mackie of Benshie
My Lords, I have listened to most of the speeches and have been impressed by nearly all of them. Like everyone else, I was absolutely horrified at the outrage, in particular by the false information apparently deliberately given in order to massacre the civilians of Omagh. The phrase 78 "something must be done" sprang at once to mind. It also sprang to mind the number of times that people have said it and nothing has been done.
In this case, despite the excellent speeches that I have heard, many from my own Bench, pointing out all the snags, I think that doing something is absolutely vital because the time is ripe. For the first time since the Irish troubles started 300 years ago, there is a consensus in the whole of the island that something must be done. The shock of the massacre has made real the vote in the republic and in Northern Ireland. That is why I support the broad intention of the Bill. That is why I put my name down to speak.
Politically, I think that it would have been impossible not to show haste in view of the fact that the Irish Government themselves are shocked into action. As many have said, for the first time there will be no refuge on either side of the Border, and the remaining terrorists should be and can be cleaned up and put where they belong. The methods have been criticised, and I am absolutely certain that the criticism will be noticed.
The noble and learned Lord, Lord Lloyd, spoke of Diplock and the 25-year period. It must be a tremendous tribute to the quality of the judges in Northern Ireland that so few cases have been overturned in trials by judge and jury, whereas in this country the biggest scandals have been in conventional trials. It appears to me that these judges, who have to make up their minds, must have done a good job. Secondly, I would be very much against producing the opinion of a police officer as evidence if it were given before a jury, but I know that judges do not always believe what the police say, and in their hands the evidence will be taken at its value and the rest of the evidence will come in with it. The reputation of the judges and other members of the judiciary in Northern Ireland will be a tremendous safeguard against the erosion of civil liberties which could arise from this Bill.
It is time for us to do something. It is possible that the wicked people who are left, people who have enjoyed the lack of work, the excitement, the killing and the feeling that they play a big part, can be rounded up. The peace process is important, but there is no question at all that joint efforts to eliminate the remaining terrorists are absolutely necessary.
§ 8.1 p.m.
§ Lord McNally
My Lords, my noble friend Lord Mackie covered the opening paragraph of my summing up by making it clear that we on these Benches will support the legislation. Twenty years ago, as Member of Parliament for Stockport, I had a visit from two young boys. I was not sure whether they were sixth-formers as they were in civilian clothes. They turned out to be two young privates from the Cheshire Regiment serving in Northern Ireland. They were on leave. They wished to ask their Member of Parliament why they were there. I tried as best I could to explain that our troops were in Northern Ireland to try to hold the ring until the political process could take over. I frequently think of those young men, particularly when I hear terms like "British imperialism" and so on. I believe that is why we still 79 have troops in Northern Ireland, and I believe we can take pride in the way our soldiers have served there. They have served with great distinction over the years.
My noble friend Lord Russell made a valid point. This is not a debate between those who believe in civil liberties and those who believe in fighting terrorism. A point underlined time and again in the debate is that a liberal democracy fights terrorism only from the secure base of civil liberties and a respect for law. Sometimes I am sure that the liberal democracy must look very weak. Here we are, with the horror of Omagh, and there is a temptation, an urge to ask, "Why do we not take them out? Why do we not have our own dirty war? What is the SAS there for?" One can understand those emotions. When the response ends up with groups of lawyers debating about the rules of evidence it may seem a very weak response indeed. Yet it is the strongest response of all.
Our Parliament can take pride in the way it has responded to a monstrous outrage. It has responded in the way a civilised society responds to outrages. To make it clear that we resist concepts of a dirty war and that we believe in the political process is very important. I do not know whether the noble Lord, Lord Molyneaux, is right in saying that there is a secret group ready to resume a war, but if there is they would make the same mistake as the Provisional IRA has made over the past 20 years. They cannot beat the ballot box with the bomb. We have proved too resilient in our defence of liberties in Northern Ireland ever to be beaten.
My noble friend Lord Holme said that this is a necessary and timely response. He is right. The measure offers two very rich prizes. By responding now in the way they have the Government have given the peace process the breathing space it needs. As a number of speakers made clear, it has been the most visible sign of co-operation between Dublin and London that we have seen throughout these recent troubles.
Some distinguished lawyers tonight have called into question the dangers inherent in the legislation. The Government will do well to ponder the advice they have received, not least from the Cross-Benches, and to make sure that the assurances they give about an early review are underlined in a response to the debate. The House welcomes what the Minister of State said about the Government proceeding at speed with their overarching review of the prevention of terrorism measures. We look forward to the public consultation process involved in that.
I do not intend to try to match the lawyers in looking at the Bill. I shall ask one question of the Minister, which I believe was also raised by the noble Baroness, Lady Kennedy. Will the police officer giving this evidence be able to call public interest immunity into defence for not revealing his sources?
The noble and learned Lord, Lord Lloyd of Berwick, in his analysis of the Bill, asks if the Government have found a unique solution. I would say no, of course, they have not. Like all British governments over the past 30 years they have responded to events. They have tried to cope with what sometimes seemed intractable 80 problems. I believe the Government have a responsibility to listen to the legal warnings they have been given this evening.
The Government, as a political leadership, are entitled to ask for backing of their judgment at this moment. In so doing, they have a duty to listen to some of the constructive suggestions made during the course of the debate: the idea of hot pursuit, the extension of seizure of assets to get at the godfathers, the question of telephone intercepts, the greater scrutiny of the intelligence services, the increased joint exercises by various authorities north and south of the border, and perhaps further pressure on the United States to cut off funding from that source.
There is a danger, in trying to eliminate or take out the terrorist, of creating the resentment that builds terrorist support. A number of speakers called for internment but the noble Lord, Lord Howell, claimed that his experience of 25 years ago was that it only worked for a time. I shall check in Hansard, but I think he said it only worked for a time. Internment itself may be attractive, but it is only a quick fix. The general verdict is that it was a period when terrorist organisations strengthened themselves. They were not weakened by internment.
I turn briefly to Clauses 5 to 7. I believe the Government have been too clever by half in slipping those clauses into the Bill. They would have had greater support in the House if they had stuck to Northern Ireland measures. The powerful speech of the noble Baroness, Lady Kennedy, and the comments from my noble friends Lord Holme and Lord Wallace remind us that this is not emergency legislation that can justify the recall of Parliament. It is business that was in the machine and which has been slipped in, I think, to the damage of the broader exercise we are undertaking.
I have said that these Benches will support the Government tonight. However, we think that there have been mistakes in the way the matter has been handled. Noble Lords have rightly spoken about the need to protect the rights of this Chamber as a revising Chamber. There are precedents for handling such legislation more sensitively. This House could have sat for longer this week. However, as my noble friend Lord Mackie said, the broader judgment is that this is the right time for this Parliament to make a response to Omagh—and our response is that that dreadful outrage has failed. It has failed because the peace process will continue.
I thought it ironic that when he realised the scale of the public outrage one of the spokesmen of one of the splinter groups moved his children to a place of safety. In fighting terrorism, the capacity of the terrorists to commit outrage means that there are no places of safety—not in the jumbo jet, the shopping centre or the restaurant. The real safety lies in driving terrorists to the margins of our society and in cutting off both their political and their financial support.
However, the peace process is under way and it now has a broader base of support than it has had for 30 years. We should welcome the presence in Northern Ireland today of President Clinton who has been a decisive influence in pushing that process forward.
81 Finally, I take up the point raised by the noble Lord, Lord Marlesford, who said that the Prime Minister had to be an optimist. I think we must all be realistic optimists if we are to push this process forward. The strength of the debate has been that the politicians and the lawyers, from whichever angle they have brought their expertise, have been determined that peace will be delivered to Northern Ireland on the basis of respect for civil liberties and the rule of law because we know that it can come no other way.
§ 8.12 p.m.
§ Lord Cope of Berkeley
My Lords, after such a long as well as, in many respects, remarkable debate, your Lordships will be glad to hear that I shall be brief and that I shall not attempt in any way to make a comprehensive reply or to address every issue that has been raised.
We strongly support the efforts which this Government, in succession to the Conservative Government, have been making to bring about peace in Northern Ireland. They have carried on the process extremely effectively since picking up the baton. We support the agreement and the assembly. I pay tribute to all those who have been involved in both the process and the assembly and to all those who are involved in it now.
However, we are very unhappy about this way of legislating. I am in no way complaining about the recall of Parliament in response to the terrible outrage in Omagh. I echo everything that has been said about the horror of that outrage. However, it is wrong to legislate in this precipitate way following that outrage.
The Bill was published less than 36 hours ago—and it has already been through another place. The draft Bill has been available for just over 48 hours. There were leaks before and, of course, some limited Front-Bench consultation, but neither is a substitute for publication and, as I have said, nobody has had more than 48 hours in which to study and consider the Bill.
I am not necessarily even complaining about emergency legislation being put forward, provided, of course, that it will be effective. However, I am complaining about all stages having to be taken so precipitately.
As far as the Northern Ireland clauses are concerned—that is, Clauses 1 to 4 and the supporting provisions at the end of the Bill—such precipitate legislation can be justified only if immediate implementation is planned so that another day or two of delay while we continued the debate in a more normal manner would have damaged its implementation. Of course, it may be that a raft of arrests under this legislation will start tomorrow and over the weekend. By Monday—certainly by Tuesday or Wednesday—we shall know whether another day or two could have been spared to debate the Bill before its implementation began. I do not wish to press the Minister to respond to that and to tell us whether there will be such implementation—it would be quite wrong of him to do so—but by the middle of next week we shall be better able to judge whether such precipitate implementation of the Northern Ireland clauses was necessary.
82 I am not worried so much about the consideration given to the legislation by Members of this House. I have been impressed today by the way in which your Lordships have buckled down to study the Bill and have produced wise and valuable insights into it and into what it does or does not do. However, it is also important that legislation is considered by others outside and that the points raised by your Lordships in the early stages of debate on a Bill can be considered by the Government and taken account of at later stages when they have been thought through.
It is not that the main proposal in the early clauses about the evidence of police superintendents is a new proposal. We have heard this afternoon that it was considered by, among others, Lord Diplock many years ago. It is not as if an outrage like Omagh—perhaps not quite as horrific but a similar outrage—was unpredictable. Indeed, it was widely predicted in this House, by the noble Lord, Lord Fitt, and by many others from these Benches and throughout the House and, for that matter, by those outside the House. It has always been obvious that on this occasion, as at previous times in Irish history, breakaway groups would be doing their damnedest to achieve this kind of outrage—yet the Government's reaction to it has given the impression that there had been no planning with regard to such an event, otherwise we might have had before us some effective legislation.
The noble Lord, Lord Mackie, said a few moments ago that he understood that something must be done as a result of the Omagh outrage. I understand and share that sentiment entirely, but the real words are, "Something effective must be done", not just anything for the sake of amusing your Lordships for a day or a night and filling the newspapers. I do not think that anybody who heard the formidable speech of the noble and learned Lord, Lord Lloyd of Berwick, or, for that matter, other speeches in this debate, can believe that the Northern Ireland clauses are likely to be effective when put into practice in the courts. I wish that it were so, but I do not believe that it is likely to be so, particularly after hearing this debate.
The confiscation clause, Clause 4, applies only to those convicted of membership of an illegal proscribed organisation, so that can be of only limited effect if the prosecutions for membership are of limited effect. Incidentally, I should say to the noble Lord, Lord Dunleath, that it does not apply only to ill-gotten gains. It applies also to any assets which might have been used or might be used in the future in the opinion of the court—however it will decide—in the commission of terrorism.
I am all for attacking terrorists' finances. When I was Security Minister for Northern Ireland I laid great emphasis on that aspect of the work of the RUC and everybody else in the security forces in attacking the terrorists' finances as effectively as possible. In our discussions within the Northern Ireland Office, I made frequent reference to the fact that Al Capone was convicted of tax fraud and not the many murders and so on for which he was responsible. But this clause will be of only limited effect because it applies only to those convicted of membership.
83 What would be more effective? That is the difficult question which everybody has had to face for many years. The noble and learned Lord, Lord Lloyd of Berwick, suggested intercept evidence in his extremely powerful speech. As on several other occasions this afternoon, we were reminded once again that judges were advocates first. He brought his old skills to bear on that proposition. I certainly believe that it should be examined extremely carefully although I know that there are indications also in the other direction.
The noble and learned Lord, Lord Donaldson, indicated important similarities as well as crucial differences between what is proposed in this Bill and internment. The comparisons are all in favour of internment. It was a grave mistake for the Government to take off the statute book the powers of internment because it avoids the judicial problems about which we have heard so much this afternoon. But in addition, by taking it off the statute book, the Government have completely lost the element of surprise which is so essential to its working.
Of course, to be effective internment must be carried out both north and south of the border. As has been said frequently this afternoon, the co-operation between the Government of the Republic and the Government in Northern Ireland is one of the great benefits of the present situation. When I served in the Northern Ireland Office, the government of the Republic were under the command of Prime Minister Haughey and we did not receive such good co-operation as is available at present. I am very glad that that co-operation exists because it is of exceptional importance in everything to do with combating terrorism.
My noble friend Lord Patten, who told me that he was unable to be here for the winding-up speeches, talked about hot pursuit. I believe that at present hot pursuit can be conducted in the hours of daylight up to five miles across the Irish border. It would be a great benefit, as a result of the Anglo-Irish co-operation, to extend that to, perhaps, 25 miles and its application should be extended to all times of day because terrorists often move by night.
There are other issues; for example, joint control rooms and even joint patrols between the RUC and the Garda. That happens frequently on land borders in other parts of Europe. Army-to-Army communications are very important. That has always been resisted by the Irish Government but would be of great benefit. All those are effective measures which I hope will flow from the increased Anglo-Irish co-operation.
Many references have been made to the sentences Act and the prospect of the release of prisoners under that Bill. The link is contained in this Bill. It is part of a rather unusual oddity—a sort of two-tier provision. This Bill provides that the conduct of cases involving the offence of membership of a proscribed organisation will depend on what that organisation is. It will still be an offence to be a member of PIRA but a police officer will not be able to give evidence in the way described in this Bill. He can do that only if the accused is charged with being a member of the Real IRA, Continuity IRA, 84 the INLA or the LVF. That is an extremely curious two-tier position—that the conduct of the trial should depend on the particular organisation to which it is alleged that the accused belongs.
On the subject of the LVF, will the Minister tell us whether the Government have received, as has been suggested, an offer to decommission from the LVF. That would be extremely valuable, particularly when added to the tiny step in the direction of decommissioning taken by PIRA, not an organisation which falls under this Bill or specified under the sentences Act. If the Government have received an offer of decommissioning, will they tell us what has been their response to it? I assume that they will welcome the offer, provided that it is genuine.
I turn briefly to Clauses 5, 6 and 7. As has been said, the previous Conservative government supported similar proposals contained in a Private Member's Bill a few years ago. We still believe that it is right to legislate; but not like this. The doubts expressed today on Clauses 5, 6 and 7 are eloquent testimony to the need for the proposals to be debated properly before being put on the statute book.
Questions remain, for example, about the way in which those clauses apply to any offence, not only to terrorism, because they will apply extremely widely provided that the Attorney-General gives his fiat for a prosecution unless the Attorney-General is overridden by the Secretary of State, a most unusual provision to which we shall return in the later stages of the Bill.
As the noble Baroness, Lady Kennedy, and others said, there is not even the same excuse for so severely truncating the debate on those clauses as there is for truncating the debate on the Northern Ireland clauses.
We all support the peace process and we shall not stand in the way of the Bill, although we shall be discussing some of the detail in the course of the subsequent stages, as we are right to do. But the overwhelming conclusion of the debate has been that this is the wrong way to legislate. At this stage the only way out of that for the Government is to provide for further consideration by Parliament in the future in one of the ways that has been suggested, preferably on the basis of proper independent reports. Acceptance of Clause 8 last night in the other place was a first step in the right direction but we shall pursue that in the later stages as the only remedy now available to us when legislating in this very precipitate manner.
§ 8.27 p.m.
§ The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs)
My Lords, we have had a wide-ranging debate about the underlying principles of this legislation. If the issues we were discussing were not so serious, I should say that this has been one of the most interesting and absorbing debates which I have had the privilege to hear in this House. But, of course, the issues are desperately serious.
I should like to reply to some of the broad matters of principle raised by your Lordships before moving on to address specific points raised by noble Lords. I start with the Northern Ireland terrorism-related part of the 85 Bill. I believe that it is necessary to strike a balance between ensuring effective anti-terrorist legislation and safeguarding civil liberties. My own commitment to civil liberties is equal to that of anyone else in this House. I believe that in this Bill we have the balance right between anti-terrorist legislation and safeguarding civil liberties, because if we do not safeguard civil liberties, we are giving the terrorists ammunition against democratic society and we do not want to do that.
Many noble Lords have raised the question of internment. The Government are not persuaded that internment is appropriate at this time. Indeed, that is why we deleted the internment provisions in legislation some months ago in this House.
In another place, and again today, there has been a wide range of views about the likely effectiveness of the legislation before us. Some have suggested that the new provisions will make little difference, while others see great potential and a few have sensed dangers in the measures. It is my experience that predicting the impact of legislation is a dangerous business. After all, convictions are solely and rightly a matter for the courts. But the Government believe that these measures will be a valuable addition to the anti-terrorist legislation and record the view of the Chief Constable of the RUC that while they are very important there are no quick fixes and magic solutions. Only yesterday I had the opportunity to have a brief conversation with the chief constable. He emphasised that this Bill was an important measure but that there was no simple answer to the problem of terrorism.
I am also conscious of the need for safeguards in this legislation. This was pursued in another place yesterday and throughout the debate today. A range of matters has already been raised and some will be the subject of detailed debate in Committee shortly.
I commence by setting out the safeguards that are included. The evidence of a police superintendent regarding membership would not be sufficient for conviction. The inferences from a failure to mention a material fact when questioned would not be sufficient for conviction. No inferences may be drawn before access to a solicitor. The Director of Public Prosecutions in England, Wales and Northern Ireland will personally review each case to be brought under these convictions. Legislation has been passed to enable audio recording under the EPA 1998. That Act requires procedures to be followed to pass a code of practice through your Lordships' House and in another place following the affirmative resolution procedure. The Government wish to bring forward that provision as soon as practicable. In Northern Ireland silent video recording was fully introduced from May 1998, although it was operable in Castlereagh from January; in Northern Ireland an independent commissioner for the holding centres has been appointed to oversee the procedures concerned with those held there. He reports annually. Together these represent significant safeguards which recognise the importance that this Government attach to human rights.
I should like to deal with specific points. I am conscious that the noble Lord, Lord Henley, in speaking for the Opposition, said that he expected a detailed 86 response. I am in some difficulty. While I want to accede to that request, we have a good deal of business to get through this evening and I am sure that the House would not thank me if I took more than a reasonable amount of time to deal with the debate. I shall try to achieve a balance between those two aims and do my best to answer the specific points that have been raised.
I deal first with Clauses 5 and 6 and the whole question of conspiracy. The Government believe that the provisions on conspiracy are important. The recent evidence of the scale of the threat of international terrorism, by which I mean both direct evidence of the carnage in East Africa and the clear requirement for a web of support and preparation in other countries, justifies a clear response: action that can help the law enforcement agencies to develop a more effective practical response and send a clear deterrent message that this country will not allow its hospitality to be abused.
The loopholes in the existing law on conspiracy—the illogical patchwork of countries and offences—cries out for rationalisation. That is precisely what the Bill seeks to do. If we are to do it for terrorist offences it will be difficult both to achieve and to justify the exclusion of other offences. First, it is difficult to define terrorist offences in a way that ensures that all relevant activity is caught. Secondly, we do not want this country to be a haven for planning organised crime such as international fraud or drug trafficking any more than we do for terrorism. Thirdly, the provisions of the 1996 Private Member's Bill in another place, largely replicated here in respect of conspiracy, were available and familiar from earlier debate. We believe that it is right to take the opportunity of this Bill today to introduce this wider measure with the safeguards and protections that we have discussed. These are dual criminality—that is, only matters which are offences in each jurisdiction are caught—and the requirement for the consent of the Attorney-General bearing in mind public interest considerations. These provisions do not threaten legitimate political activity. The Attorney-General's discretion and ability to consider the wider public interest will safeguard hard individual cases.
§ Lord Avebury
My Lords, I thank the Minister for giving way. Does the requirement that our law should also be infringed include law which is obsolete or in desuetude, such as the Sedition Act? For example, if in this country a person commits an offence under the Bill which is concerned with conspiracy to commit sedition in another country is the fact that we have a law against sedition on our statute book caught under this Bill?
§ Lord Dubs
My Lords, it would be caught only if the Attorney-General of the day thought it appropriate to catch any particular behaviour under an old piece of legislation. I am quite certain that no Attorney-General would wish to do that. I believe that given the way that this particular measure is constructed we have that safeguard. The discretion of the Attorney-General and his ability to consider the wider public interest will safeguard hard individual cases. But this House will have the added assurance of being able to form its own 87 assessment in the light of practical experience, informed by the annual reports on these provisions which my right honourable friend the Home Secretary has agreed will be presented to Parliament.
I should like to discuss some of the very detailed points as briefly as I can. As to Clauses 5 and 6, the Bill abolishes a number of specific provisions to allow the prosecution in this country of conspiracy to commit an offence in another country. It replaces them with a general provision. A number of the existing provisions do not require the consent of the Attorney-General. The new general provision does require such consent, which is the safeguard that we are adding. The order-making power will allow categories of case which are not sensitive and do not require the personal engagement of the Attorney-General to proceed without requiring his consent.
The noble Lord, Lord Henley, made reference to a letter from the Prime Minister giving advance details of the Bill to all members of the Labour Party in both Houses. When the noble Lord raised this matter I recalled the letter that I had received which gave an indication of the forthcoming debate. To clarify the position, the letter referred to was a party letter whose purpose was to alert party members to the recall of Parliament and the reasons why that had been deemed necessary. That is standard party practice. If the noble Lord believes that in future his own party should copy that practice he is welcome to do so.
§ Lord Henley
My Lords, perhaps the noble Lord will give way. I made the point because the noble Lord's right honourable friend the Prime Minister felt able to offer some information to members of his party. If that information was available at that time why could it not have been made available to all Members of both Houses since they had to return to Parliament to debate these matters?
§ Lord Dubs
My Lords, I do not have the letter before me, but I can assure the noble Lord that it did not contain hard information but was provided purely out of courtesy. It did not contain as much information as was available in the newspapers at that time. With respect to the noble Lord, I do not believe that there is any point of substance in that. However, I welcome the constructive approach of the noble Lord and his party to the peace process and the noble Lord's efforts to try to do justice to the Bill before the House.
The noble Lord asked whether the police had been consulted and, if so, what views they had upon the matter. I can tell him that there has been discussion with the police in both Great Britain and Northern Ireland. Both welcome the provisions of the Bill. My right honourable friend the Home Secretary was able to meet the Chief Constable of the RUC and the Garda Commissioner before one of their regular meetings during his visit to Belfast last Friday.
The noble Lord also asked about police cautions. There are no immediate plans to change the terms of the standard caution. However, administrative guidelines will be drawn up to ensure that persons being questioned in 88 relation to membership of a proscribed organisation are additionally made aware of the possibility of inferences being drawn. This is both necessary and proper.
Finally, the noble Lord asked who would conduct the report provided for in Clause 8 as a result of the amendment introduced in the other place yesterday. The use of an independent reviewer is well precedented in non-statutory reviews of anti-terrorist legislation. I am confident that my right honourable friend will be happy to follow that precedent.
I now turn to specific points made by the noble Lord, Lord Holme. For reasons of time I am not able to go through every point made by noble Lords. I am trying to pick out the most significant in terms of the pattern of debate and importance of the issues raised. The noble Lord, Lord Holme, raised the matter of the offence being introduced in the Republic of directing a terrorist organisation. I assure the noble Lord that we already have the power in Section 29 of the emergency provisions Act. These powers will add to the range of anti-terrorist laws available to the police.
The noble Lord also asked how a specified organisation can stop being specified. My right honourable friend the Secretary of State for Northern Ireland can make an order to that effect under the Sentences (Northern Ireland) Act 1998. The noble Lord will remember the discussions that we had about that only recently. The position of organisations that are specified is kept under review.
The noble Lord also asked about forfeiture. I hope he will agree that we should defer that debate until we come to the substantive amendments later this evening.
He also asked about the European Court of Human Rights and the European Convention on Human Rights. The Government have taken the view that the only sure way to respond to that judgment is to amend the primary legislation and the relevant PACE and EPA codes of practice so as to prohibit the drawing of inferences from silence when a suspect is questioned at a police station while denied access to legal advice. The limited scope of this Bill means that it unfortunately does not provide a suitable legislative vehicle to make that amendment. However, we are committed to legislate in England, Wales and Northern Ireland as soon as the opportunity arises. I hope that details will be available shortly as to how we intend to proceed.
I now turn to the question of audio recording in Northern Ireland referred to by the noble Lord, Lord Holme, and many other noble Lords. The noble Lord suggested that that provision was included in the 1996 emergency provisions Act. I fear that time passes rather more slowly than he believes. It was in fact the 1998 Act which introduced that provision. Let me assure noble Lords that there is no foot-dragging on this issue. We are determined to put the logistics in place quickly and we are actively pursuing these matters with the support of the RUC chief constable. A number—
§ Lord Harris of Greenwich
My Lords, perhaps I may ask the noble Lord one question. What is the timescale? When will that be done? We deserve an answer.
§ Lord Dubs
My Lords, perhaps I may continue with my response to points made. I do not think I can give as 89 specific an answer as both noble Lords would wish. Indeed, the noble Lord, Lord Mishcon, also raised a point about whether the recording procedures could be available by the time this Bill becomes law.
There is a commonality of purpose with the Government. We all want audio recording to be introduced quickly. However, I do not agree that this legislation should be delayed simply for that purpose. We are legally bound to produce a draft code of practice, allow consultation and pass it in both Houses by affirmative resolution. However, as my right honourable friend the Home Secretary explained in another place, we are examining ways of implementing the procedures administratively before the process is concluded. I hope that noble Lords will accept the good intentions of the Government in this regard. We are going to do it as quickly as we can, but it will not be in time to coincide with this legislation coming into force.
§ Lord Holme of Cheltenham
My Lords, I am grateful to the noble Lord for giving way. I want to be sure that I have understood his remarks. The Home Secretary has committed himself to the idea of introducing the provision administratively—by which I presume he means something as simple as obtaining the equipment, installing it and starting to record interviews—before the code of practice has been passed by affirmative resolution. Is that what the noble Lord said?
§ Lord Dubs
My Lords, what we are seeking to do is make progress as quickly as possible. We want to get the procedures in place administratively. We do not want to wait until both Houses pass affirmative resolutions. We want to make progress in order to fulfil our obligation to enact the legislation as quickly as possible.
§ Lord Holme of Cheltenham
My Lords, does that mean that the police will start recording interviews with the appropriate equipment whether or not we have reached the stage of agreeing the code of practice?
§ Lord Mishcon
My Lords, I thank my noble friend for giving way. He is always courteous. Can he give the House any explanation as to why the audio equipment will not be available in any case brought under the present Bill? What is the technical or financial obstruction, especially bearing in mind the Minister's remarks as to this provision producing fairness for the honest police officer as well as justice for a defendant?
§ Lord Dubs
My Lords, I can only say to my noble friend that we want to make progress as quickly as possible. I cannot tell him here and now what are the technical or other reasons why we cannot achieve the end that he wants more quickly than we are now doing. Notwithstanding the fact that we want to make progress on the Bill, I am happy to look into the matter and write to my noble friend if he will accept that letter after the 90 Bill has, it is to be hoped, been enacted. I will certainly do that. If the noble Lord, Lord Holme, would like a similar letter, I will ensure that that happens.
The noble Lord, Lord Molyneaux, made an important contribution giving us the benefit of his long experience of Northern Ireland. I note his view that the new measures in Clauses 5 onwards should be considered in the next Session. The consultation exercise which my right honourable friend the Home Secretary is leading will provide an opportunity to influence government thinking. That gives the noble Lord and others an opportunity.
The right reverend Prelate the Bishop of Hereford also made an important contribution. I can confirm the Government's view that this legislation is consistent with our international human rights commitments. Indeed, we were careful in drafting the Bill to make sure that we did not breach any of our obligations.
My noble friend Lord Mishcon also asked about when the legislation could be reviewed. I can give him a specific answer. The commitments or statutory requirements already in place will deliver no fewer than four relevant reviews in the next 12 months: first, the consultation paper on future legislation in the autumn; secondly, the renewal of the PTA in March; thirdly, the renewal of the EPA in June; and, finally, the report indicated by Clause 8 within the next 12 months. So there are a series of benchmarks against which the working of the legislation can be judged—not all at the same time, for reasons that are fairly clear, because they are linked to other pieces of legislation which are also being reviewed. But two of the reviews will take place during the next six months. I hope that that gives some assurance to my noble friend.
The noble and learned Lord, Lord Mayhew, raised the question of the cross-examination of senior police officers. Yes, both counsel and the trial judge will be able to question the police officer. Clearly, the basis for the police officer's statement will be critical to the weight that is placed on it. But that is the same with any other evidence in court. It will be for the police to determine what, if any, source of information they are prepared to reveal in the circumstances of the case at issue. The Government believe that the measures will be both valuable and in keeping with the general principles of the criminal law.
Perhaps I may return briefly to the question of audio recording. There is no problem with starting administratively as soon as possible. But if we write a new legal requirement into the Bill it can be met only when the proper codes of practice are in place. That is one of the reasons why there will inevitably be some delay.
The noble and learned Lord, Lord Lloyd, raised a question about membership. I am grateful for the noble and learned Lord's experience in the difficulties of tackling terrorism. Indeed, I should like as modestly as I can to congratulate him on a very significant speech. He highlighted the balance between firm and effective legislation and the need to safeguard human rights. That is the path that this Bill seeks to follow.
91 The noble Lord, Lord Patten, raised questions about hot pursuit, co-operation with the Garda and joint training. We are considering jointly with the police the advantages and disadvantages of introducing further measures, and others may have been raised by noble Lords during the debate. They will be considered as part of the exercise which is nearing completion to produce this autumn's consultation paper on the new counter-terrorism legislation.
The noble and learned Lord, Lord Mackay of Drumadoon, asked why Clause 1 regarding inferences from silence does not allow inferences to be drawn in the Scottish judicial examination procedure. Without going into it at length, there is a clear mention of the Scottish position in Clause 1(10). I know it is not quite as simple as that, but probably that will go some way towards satisfying the noble and learned Lord.
The noble Lord, Lord Kennet, asked about the position of Crown civil servants. I can assure him that the purpose is not to give minor civil servants carte blanche to pursue criminal careers. It applies to actions which might have to be taken in the course of official duty where there is no exemption. There is a range of circumstances in which technical breaches of the new provisions might otherwise arise. For example, if the police or Customs were planning an undercover operation involving infiltration of an organised crime group, a consignment of drugs or weapons might be tracked to a number of different transit countries, each with a different legal system. There would obviously be no question of prosecution here in those circumstances. We believe it is right to provide specific protection on the face of the Bill.
The noble and learned Lord, Lord Bridge of Harwich, asked whether I would make it clear that no weight should be placed on the evidence of a superintendent which was founded on intelligence sources not produced in court. I simply cannot give that assurance, nor should I. The weight of evidence is properly a matter for the court or the jury. However, the evidence of a superintendent is in no circumstances sufficient in itself. That is an important safeguard.
§ Lord Thomas of Gresford
My Lords, if public interest immunity is claimed by a police superintendent for his sources of information, will he be obliged, as is currently the case on claims of public interest immunity, to disclose his sources to the judge and not in open court?
§ Lord Dubs
My Lords, I am not sure that I am able to answer the question in the detail in which it has been put. The police officer or police superintendent would have to make his own decision about the way in which he puts his evidence forward. The judge would then have to take a view accordingly. It would be up to the judge and the jury, if appropriate, to make a decision. That may not be as helpful as I would wish, but I do not have the detailed knowledge at hand to give the 92 noble Lord a more helpful answer. I hope he will bear with me. If I can obtain the answer before I finish winding up, I shall tell him.
§ Baroness Kennedy of The Shaws
My Lords, that is precisely the point that I raised in my speech. In the ordinary way, in such cases that is exactly what the officer would do. He would say to the court: "These are matters which are in the public interest. They are matters which should not be disclosed openly before the defendant or the defendant's lawyers. May I approach the court, in the absence of the jury and those who represent the defendant and the defendant himself?". Then, ex parte, an application is made that this material be considered by the judge. Then the judge would make a decision. Of course, the judge must give consideration to the fairness of the defendant's trial. The noble and learned Lord, Lord Lloyd, said that any judge cognisant of the fairness of the trial would have to say: "Given that in those circumstances the officer is dependent upon information received from other quarters—whether it is the security services or someone else—there cannot be cross-examination. In those circumstances, the fairness of the trial of the defendant is impugned. He cannot cross-examine through his lawyer and therefore I have to abandon this area of evidence. I cannot proceed further".
That is the problem with this kind of evidence in such cases. It is why I concur with what the noble and learned Lord, Lord Lloyd, said. This will not be effective as legislation if the judiciary fails to reach those high standards, and we know they are unlikely to do that.
§ Lord Dubs
My Lords, I understand the argument. However, surely in the circumstances described by my noble friend, it would be up to the judge to decide whether the procedure was fair enough to the accused or whether the evidence should be disregarded. It seems to me that the safeguard is there, in terms of the judge's responsibility for the conduct of the trial and having fair procedures. I should have thought that the safeguard would give my noble friend some assurance in terms of the procedures that we are now talking about.
I turn to the question of forfeiture raised by the noble Lord, Lord Dunleath. He asked whether forfeiture was restricted to assets gained criminally. Clause 4 does not seek forfeiture in that way. However, it makes it clear that the property must be in the convicted person's possession or under his control and have been used in connection with the activities of a specified organisation. If those conditions do not apply, then clearly forfeiture would not apply. It is quite possible that money or income earned quite properly and legally could still be used for criminal purposes. So it is not as clear-cut as the noble Lord's suggestion implied.
The noble Lord, Lord Avebury, asked about the presence of a solicitor during interviewing. There is currently no legal requirement for the police to allow a solicitor to be present during interviewing. However, practice differs within the three jurisdictions of the United Kingdom. This legislation ensures that no inference is drawn until after the accused has consulted with a solicitor. To go further in trying to standardise 93 practice is beyond the scope of the present Bill. I appreciate that this is a matter of substance. It is one which bears reflection in the anti-terrorist legislation review. The Bill restricts the issue to membership of a specified proscribed organisation. As the police often question a suspect on a range of matters of which membership is only one, it would be necessary to have a single regime regarding the presence of a solicitor during questioning for all terrorist offences within any jurisdiction. That is a complicated matter which goes beyond the scope of the Bill as we now have it.
§ Lord Thomas of Gresford
My Lords, the Minister will appreciate that, when a solicitor is advising a person who has been arrested, he is entitled to be told the nature of the case up to that point which the police have against his client so that the solicitor can advise him. What does the Minister suppose would be the situation if the solicitor were told that the only evidence against his client was the opinion of the police officer? Does the noble Lord think that the defendant is liable to fail to reply to any questions in those circumstances?
§ Lord Thomas of Gresford
My Lords, the Minister fails to answer the question. In those circumstances there could not be corroboration because all the defendant has to say is: "I do not admit that I am a member of the proscribed organisation", and he has answered the question.
§ Earl Russell
My Lords, have I understood the Minister correctly when he was talking about corroboration? Was he saying that two bad pieces of evidence add up to one good piece of evidence?
§ Lord Dubs
My Lords, I am not saying that at all. If they were bad pieces of evidence, the judge should decide accordingly. I am saying that we have the procedure and there has to be more than one piece of evidence before the provisions in the Bill apply.
The noble Baroness, Lady Park of Monmouth, asked whether PIRA is a specified organisation. It is not. It is still a proscribed organisation, but the legislation is aimed specifically at those organisations that are not observing a full and unequivocal cease-fire—groups like the Real IRA responsible for the tragic bombing in Omagh. Were PIRA to end its cease-fire, it could be added to the list of specified organisations by my right honourable friend the Secretary of State.
94 The noble Lord, Lord Bridges, asked how proscription was applied. Organisations can be proscribed by an order of the Secretary of State if they are involved in monitoring or encouraging terrorism. The statutory basis for proscription is Section 2 of the PTA in Great Britain and Section 30 of the EPA in Northern Ireland. That order must be laid before and approved by resolution of each House of Parliament. It is an offence to be a member of a proscribed organisation. The legislation, however, targets organisations which are specified. That is, as I have just said, organisations that are not observing a full and unequivocal cease-fire.
The noble Lord, Lord Marlesford, raised the issue of prisoner releases. The people of Northern Ireland emphatically endorsed the agreement which contained proposals for the early release of prisoners in the referendum on 22nd May. However, there continue to be safeguards for prisoner release. These include the release of prisoners on licence. Prisoners are liable to be recalled if they support an organisation engaged in terrorist activity or if they re-engage in terrorist activity. Prisoners affiliated to groups continuing to engage in violence will not be given early release. There are a number of other safeguards.
The noble Lord, Lord McNally, asked about public interest immunity claims. If the police were questioned about the basis of an opinion given under the Bill, they could refuse to disclose an informant source, if such existed, by invoking public interest. Nothing in the Bill affects the possibility of a claim for public interest immunity where this can be justified on normal and accepted principles.
I apologise to noble Lords whose points I have not covered in detail. I have done my best to deal with all the specific and key points. Let us be clear why we are here today to debate this Bill. Since the Good Friday agreement was signed on 10th April dissident republican groups have been responsible for a number of bomb attacks, culminating of course in the horror of Omagh. Dissident republicans have also exploded bombs in Newtownhamilton and Banbridge. Other attacks were thwarted in Lisburn, Belleek, Kinawley, Armagh and of course in the centre of London. Close security co-operation between police forces throughout the United Kingdom and the Garda Siochana have played a central role in that. Never has security co-operation been so good.
It is therefore fitting that we are also moving together politically and legislatively. The measures before the House today are complementary with those being proposed in the Republic of Ireland as we speak. The level of co-operation epitomised by the work of the Prime Minister and the Taoiseach in reaching the Belfast agreement on 10th April, and their subsequent continuing close co-operation, has naturally led the two jurisdictions to bring their counter-terrorism law closer together. We believe that close co-operation will pay dividends. This is an important piece of legislation which will further the aims of the peace process.
§ On Question, Bill read a second time.
§ Lord Carter
My Lords, in moving that the House do now adjourn briefly, I congratulate noble Lords on hitting almost exactly the target of six hours for Second Reading. A Marshalled List of amendments is now available, as is the suggested grouping. I beg to move that the House do now adjourn during pleasure until 9.20 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 9.2 to 9.20 p.m.]
§ Lord Williams of Mostyn
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 Williams of Mostyn.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The DEPUTY CHAIRMAN OF COMMITTEES (Lord Ampthill) in the Chair.]
§ Clause 1 [Evidence and inferences: Great Britain]:
§ Lord Carter
Before the noble Lord, Lord Cope, moves Amendment No. 1, perhaps I may point out that the suggested groupings have been revised. A revised list is being produced as I speak but it has been agreed that the first group of amendments should be Amendments No. 1, 4 and 8. I hope that is convenient for the noble Lord. If so, I suggest that we deal with a group comprising Amendments Nos. 1, 4 and 8. By the time that debate is concluded, or indeed well before it, the revised list of groupings will be available.
§ Page 1, line 9, after ("2(1)(a)") insert ("or (b)").
§ The noble Lord said: This amendment and Amendments Nos. 4 and 8 are all directed to Clause 1 of the Bill and particularly to proscribed organisations and the evidence of a police superintendent, which we discussed during the Second Reading debate. To my mind it is slightly curious that the offence to be dealt with is only an offence under Section 2(1)(a) of the Prevention of Terrorism (Temporary Provisions) Act 1989. That is actual membership of a proscribed organisation. It is then further limited later in the clause to specified organisations, which is the limitation from the Crime (Sentences) Act. What we propose in Amendment No. 1 is partly in the nature of a query rather than an actual proposal. We ask, "Why not include Section 2(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989?" That would include not only someone who belongs to an organisation but someone who had solicited or invited support for a proscribed organisation.96
§ In our discussions on earlier legislation, it was made clear that actual membership of a particular terrorist body is extremely difficult to detect. Therefore, the words "support for" a terrorist body were included instead of "membership". We have not gone quite as far as that, because we have picked up the wording from the PTA, but we have gone in that direction by suggesting that the limitation of soliciting or inviting support for a proscribed organisation should also be covered by this legislation. All this is on the assumption, which has been somewhat battered by the Second Reading, that this clause is effective at all. Assuming it is, it may be that it should also apply to individuals who solicited or invited support.
§ Lord Molyneaux of Killead
Perhaps I may mention my interests in this grouping. It lies in Amendment No. 12.
§ Lord Cope of Berkeley
I am not sure that the noble Lord was in the Chamber when the Government Chief Whip suggested just now that the first grouping should be directed solely to Amendments Nos. 1, 4 and 8. The amendments of the noble Lord, Lord Molyneaux, will be dealt with in a subsequent grouping.
§ Lord Williams of Mostyn
As always, I am grateful to the noble Lord, Lord Cope. In fact, I believe that there has been a fairly recent regrouping so we may all have to regroup our papers. Certainly as regards the amendments to which the noble Lord, Lord Molyneaux, wishes to contribute, they are Amendments Nos. 12, 13, 14, 15, 21, 22 and 23. They have been degrouped. I believe that the noble Lord knew of it a few seconds after I knew of the degrouping as well.
If it is convenient to the Committee, I shall speak to Amendments Nos. 1, 4 and 8. As I understand it, the amendments are aimed at extending the provisions of Clause 1 to include supporting a proscribed organisation on the same basis as being a member of a specified organisation. I am not sure whether that is the deliberate intent of the noble Lord, Lord Cope. As I believe we have explained, we have sub-divided the category of proscribed organisations by specifically limiting it to the four organisations, which I mentioned on a number of occasions at Second Reading. They are specified in the context of the sentences Act. We believe that that is a rational division. We have done it on a particular basis, which has already been specified. We do not ourselves believe that one ought to widen it to proscribed organisations as opposed to specified organisations of which there are only four at the moment. That is the first point.
The second point is the wider one which the noble Lord made, if I understood him correctly, that one ought not simply to limit the offence to membership of the specified organisation, if the Bill goes through in its present structure, but that there should be an offence of soliciting or inviting support for a proscribed organisation. But curiously to my mind—it is my lack of perception and understanding—that would not criminalise supporting a proscribed organisation with money or other property. I am not quite sure of the 97 reason behind this. We say that the offence ought to be membership. In answer to the noble Lord's specific point about the difficulties of proof, if there were solicitation or invitation of support for a proscribed organisation which was within the category of a specified organisation, and if there were evidence of that, there is no reason at all, in principle or practice, why such evidence could not be part of the inferential material which could be taken to support the sworn assertion of the senior police officer.
If there is someone carrying out these activities which fall short of apparent membership, we say that that can be taken in evidence, where appropriate, by the court to prove the full offence. Therefore, the answers are these: first, we are aiming at membership and, secondly, it is membership of the four proscribed organisations. I hope that that explanation is of assistance.
§ Lord Cope of Berkeley
I am grateful to the noble Lord for his response. As regards the two different categories of organisations, although I drew attention in my speech at Second Reading to the oddity of having different evidential arrangements for the two categories, I am not pursuing that in this particular amendment or indeed later in this Committee stage.
I hope that Amendments Nos. 1, 4 and 8 apply only to members or supporters of specified organisations, as opposed to proscribed organisations. If the Government widen the measure in the rather peculiar way that they seem to be suggesting, perhaps that is the fault of our drafting for which I can plead only the pressure due to the rather helter skelter manner in which we have been required to consider this legislation. The more substantive point at which we are aiming is whether or not for a specified organisation the new evidential arrangements should catch only those who are members of the specified organisation or also those who solicit or invite support. The noble Lord drew attention to the fact that it is a matter of support other than with money or other property. That phrase is taken directly from the PTA 1989 where other sections deal with the financial arrangements, in particular Section 9 of the Act. Therefore we felt it necessary to follow the wording of the PTA.
However, as I also emphasised not long ago in my Second Reading speech, I am strongly in favour of "clobbering" terrorist money whenever one can. The main argument on which the noble Lord relied in his response was that if someone solicited or invited support, that was evidence of membership. As I recall, that is the exact opposite of the argument that his noble friend the Minister at the Northern Ireland Office used on the sentences Bill where the phrase "supporters of terrorist organisations" was specifically used. As I recall, we wondered why there was not a reference to members and the noble Lord, Lord Dubs, said that membership was difficult to prove but support for an organisation was easier to prove and therefore the Government used the wider phrase in the sentences Bill. In a sense we followed that usage when we tabled these amendments.
§ 9.30 p.m.
§ Lord Lloyd of Berwick
I do not know whether it is in order for me to intervene or whether my intervention supports the arguments on either side. I saw certain difficulties in membership of an organisation being the test. I proposed instead the phrase "taking an active part in an organisation." I was against the term "membership" for a slightly different reason in that it is a woolly expression. I was anxious not to include people who are nominal members of foreign organisations. In general we want to catch people who are doing things in the organisation. You could do that by defining "membership", if you wanted.
§ Lord Williams of Mostyn
As the noble Lord, Lord Cope, indicated, I rather suspected that he intended to aim at specified organisations rather than proscribed organisations. This is reaffirmed by his reference to the PTA which, of course, refers to proscribed organisations and not specified organisations. I accept his point that he has had little time to draft these measures. That is a fair point to make. We believe that we have this right and that the term should be "membership". If support is solicited, invited or is tangible in terms of money or property, I personally believe that inferences could be drawn from that.
§ Lord Cope of Berkeley
Reinforced by the support of the noble and learned Lord, Lord Lloyd of Berwick, I am not entirely satisfied with that response. I have looked briefly again at the drafting to determine whether we are catching those who solicit or invite support for proscribed organisations as opposed to specified organisations. As far as I can see, we have the drafting right. However, this is an abstruse point which is difficult to discuss at this stage. Unless the Minister has anything further to say, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 2 to 4 not moved.]
§ Lord Mackay of Drumadoon moved Amendment No. 5:
Page 1, line 24, at end insert—
("(3A) Nothing in this section shall prevent the police officer who makes a statement to which subsection (3) applies from being cross-examined as to the content of and factual basis for the statement.").
§ The noble and learned Lord said: Amendment No. 5 deals with the issue of cross-examination. That was a matter which I raised in my speech at Second Reading and which a number of other noble Lords touched on in the course of their speeches. I wish to explore the matter slightly further. It is very important that by the time the Bill leaves this Chamber and becomes an Act of Parliament those who are required to work with the Act—police officers, lawyers, the courts and the judges who preside over the courts—are quite clear as to the policy on the issue of cross-examination.
§ In his opening speech the noble Lord, Lord Williams of Mostyn, made quite clear that evidence given by a police officer as to his opinion of the accused belonging or having belonged at a particular time to a specified 99 organisation would be evidence that was open to cross-examination. As I indicated earlier this evening, that was a statement which I warmly welcomed.
§ Subsequently in the debate at Second Reading my noble and learned friend Lord Mayhew and the noble and learned Lord, Lord Lloyd of Berwick, raised the possibility that during the giving of his evidence the officer speaking to his opinion as to membership, if it was an opinion based on evidence from confidential sources, might decline to answer questions. That was a theme taken up later in the debate by the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Thomas of Gresford, who pointed to situations where the officer concerned could plead public interest as a justification for declining to answer a particular question.
§ When he replied to the debate the noble Lord, Lord Dubs, indicated that it would be for the police to determine what sources to reveal. It would be for the police officer himself to make his own decision. I have to be quite frank and say that those comments about officers being able to decline to answer questions come as somewhat of a surprise to a Scottish lawyer. As I understand the law of Scotland, and I am sure that I shall be corrected—and rightly corrected—if I am wrong about this, ultimately it is for the judge to decide whether or not a witness answers a question. If he feels that the question is inappropriate and should not have been asked, the question will be disallowed, no doubt after objection, and the officer will not be required to answer it. But if the officer is required by the judge to answer the question as part of legitimate cross-examination of his opinion evidence, then he will have to do so and he will not have a choice as to whether or not he wishes to reveal sources, information coming from sources, or whatever.
§ Part of the reason for that may be that it is not our practice in Scotland to rely on the existence of public interest certificates. All prosecutions are ultimately under the control of the Lord Advocate. If, in a particular case, he took the view that the public interest militated against revealing the source of particular evidence, then he would decide that a particular prosecution should not go ahead for that reason. But I think it right to make clear that as far as Scotland is concerned the basis upon which the Minister the noble Lord, Lord Dubs, replied would not be acceptable.
§ I fully appreciate, having listened to the discussion this evening—
§ Lord Archer of Sandwell
I wonder if the noble and learned Lord would forgive me. I cannot speak for the law of Scotland and I would be grateful for his guidance. Would there not be two courses open to the judge? One could be to direct the officer to answer the question. The other, and preferable one, which most judges I would have thought would prefer, would be to say, "If you are not prepared to answer that question then I shan't take this piece of evidence into account".
§ Lord Mackay of Drumadoon
I do not think that that course would be open, even if the judge were sitting 100 on his own. However, many of the cases will be tried in front of a jury. One cannot direct members of a jury to ignore events which they have heard; namely, a question being asked and the officer indicating that he was not prepared to answer it, with an exchange between the judge and the police officer resulting in it being left to the police officer's discretion as to whether or not to answer. It is right that I indicate that the noble and learned Lord the Lord Advocate and I have discussed the matter informally and our understanding of the law of the land and the practice of Scotland is at one in this matter.
It is right that Members of the Committee appreciate that the basis on which debate has taken place this evening would not apply in Scotland. For that reason it is important that when the Bill leaves this House and Parliament, the courts in Scotland, England and Wales and Northern Ireland are quite clear as to the position.
The purpose of the amendment is to make it clear that nothing in new Section 2A, introduced by Clause 1, inhibits cross-examination. In the law of Scotland, England and in Northern Ireland, there may well be other provisions: the right to claim public interest at the instance of a police officer in England; rules against hearsay, secondary hearsay, and the remainder. Other rules of evidence may preclude or inhibit cross-examination. However, the message I wish to see sent out loud and clear in the Bill—whether by acceptance of the amendment, or through a statement by the Minister—is that nothing in the Bill inhibits the right to cross-examine. That will leave it to the trial judges in the different jurisdictions to apply the existing law. I do not think that we could improve on that situation.
Before the noble and learned Lord helpfully intervened, I had turned to deal with this point. I fully accept that in England and Wales the procedure is different. I would not wish the procedure in England changed to accord with the position in Scotland. Nor would I wish the Bill to change the position to accord with the Scottish or any other position. We should superimpose the provisions of the new Section 2A on top of the existing law as to the right and extent of cross-examination. If we do that—I return to a point made by noble Lords on a number of occasions, in particular by Ministers who opened and closed the Second Reading debate—it offers the best hope of protecting this legislation against challenge in Strasbourg.
If witnesses are to be allowed to decide whether or not they answer questions, however well the Bill may have been "proofed" against the European convention, I imagine that a strong challenge could be mounted if the message coming from the Bill is that it is up to witnesses whether they disclose sources or factual information upon which they base their opinion. One can well imagine that a police officer who, without disclosing the source of information, discloses the information upon which he based his opinion, would by implication disclose his sources. People would work out that he could only know that fact if he had been speaking to "X". That is where the problem arises.
101 As I indicated in my Second Reading speech, I accept that it would be difficult for a police officer to volunteer to give evidence because in many instances his opinion will be based on sources he is not prepared to disclose. As the noble and learned Lord, Lord Lloyd, indicated, that may well mean that, for all its trailers, the Bill has tended to be a bit of a mouse. Only time will tell whether that view is correct.
However, that is the reason I move the amendment. Having explained the intention, when the Minister replies I hope that he will be prepared to state at the Dispatch Box that there is no intention to change the practice in any of the jurisdictions which will be affected as to the right to cross-examine, and the extent of that cross-examination. I beg to move.
§ 9.45 p.m.
§ Lord Thomas of Gresford
I shall speak to this amendment and try to outline the practice in England and Wales as I understand it. If public interest immunity is claimed, as it will be, for informers or for information that has been obtained from the security services, the practice is that an application is made ex parte to the judge so that the prosecution goes to the judge and discloses the material. Of course, the defence has no part to play in this unless the judge says, "I think that you should disclose some part of what you have revealed to me to the defence; they should have that information. But I agree with you that the sources are so sensitive in relation to other parts of the information that you are disclosing to me that you need not disclose that information at all".
Let us take this Bill. Suppose that happens and the judge says, "I accept that you need not disclose, on public interest immunity grounds, your sources for your opinion", or that the police officer need not disclose his sources. When one goes back into court the police officer will say, "I believe that the defendant is a member of a proscribed organisation". Defence counsel then stands up and asks, "Why do you have that belief?", and the police officer replies, "I am not entitled to tell you", or prosecuting counsel intervenes and says, "This is a matter that is covered by public interest immunity". There is, therefore, no effective challenge in court to the police officer's opinion.
The curious thing that happens then is this: the judge may know from the private disclosure to him exactly what the source is. He may know that it is a reliable source. He may know the whole background to the opinion that the police officer expresses. As may happen in Northern Ireland, if that judge is sitting alone, he then has to go into court and he has to say in accordance with this Bill, "Of course, I have heard the opinion of the police officer and that is not enough under the terms of the Bill for him to be convicted. I dismiss the charge".
So, there is a very curious situation where the judge is informed privately, on an ex parte application, exactly why the police officer believes what he does, but a charade is played out in court where the police officer cannot give the reasons for that, which leads to the charge being dismissed.
102 The more one examines the detail of this legislation the more one sees that, although it is a gesture, and an important gesture, it really will have no influence on or effect in increasing the number of convictions for terrorism in Northern Ireland or in this country.
§ Lord Mishcon
Will the noble Lord add one thing to his clear analysis of what happens, and that is that the judge in hearing the ex parte application, and on being informed of the facts behind the view formed by the police officer, has to weigh the balance between fairness to the defendant in the trial and the question of public safety in the interests of security?
§ Lord Thomas of Gresford
That is entirely correct. The judge, in coming to his decision on whether part or all of the material should be disclosed to the defence, would do that on the basis of what he considers to be fair. If he says that it is fair to disclose the information, then the prosecution has to make up its mind whether to continue with the prosecution at all at the risk of revealing sources or other information from the security services. In a situation like that the prosecution will collapse the case, so the prosecution will cease because it will not disclose such information. In the other situation, the judge, faced with the simple opinion of the police officer on this legislation, cannot convict.
§ Lord Archer of Sandwell
Before the noble Lord sits down, does he agree that the charade that he described is unlikely to take place because in a public interest immunity application, the judge would say either, "I do not think that you should be required to answer those questions about your sources", in which case the matter would proceed, or he would say, "If you give that evidence, I do not agree that the matter is covered by public interest immunity and I shall require you to give your sources", and in that case the likelihood is that the evidence would not be given?
§ Lord Thomas of Gresford
I think that is what I was trying to say a moment ago. Clearly, my exposition was not clear enough and I apologise for that.
§ Lord Williams of Mostyn
I fully support the sentiments behind the amendment moved by the noble and learned Lord, Lord Mackay of Drumadoon. Of course, the evidence of a police officer under Clause 1 must, and will, be open to cross-examination. The noble and learned Lord wished for my positive reaffirmation of his belief that this would not inhibit any present rule of practice within the respective jurisdictions—and I confirm that.
Of course, we deal with things differently in the different jurisdictions. The Lord Advocate would have to come to his conclusion about where the public interest lay and about the particular disclosure of the sort of material to which the noble Lord, Lord Thomas of Gresford, referred before he launched the prosecution. The consideration would be given at that stage.
I believe that the noble Lord's analysis is correct in the way he which he summarised present practice in England and Wales. He knows, as I do, that in some 103 cases—in a relatively small minority of cases—if there is a ruling ex parte by the judge with which the prosecution is not content, in the generality of cases—and it may be nothing to do with terrorism but relate simply to honest, decent crime—very often the prosecutor, having taken further instructions, will come to his own conclusion and, as the noble Lord said, will collapse the case himself. I am happy to confirm that cross-examination will be available, but nothing in this Bill is intended to, or can, alter the present practices and rules in the respective jurisdictions. I hope that that assurance, given as clearly and as bluntly as I can, satisfies the noble and learned Lord.
§ Lord Mackay of Drumadoon
When I heard the Minister talk about "honest, decent crime", I had a picture of him harking back to the happier days when he used to practise in those areas and be slightly better remunerated than he sometimes gives the impression of being in his current employment.
I am grateful to the Minister for amplifying what he said earlier. His statement that this Bill is not intended to inhibit the usual rules is precisely the assurance that I sought. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Mackay of Drumadoon moved Amendment No. 6:
§ Page 2, line 14, at end insert—
§ ("() Subsection (6) below also applies in Scotland if evidence is given that
- (a) on appearing before the sheriff for judicial examination on the offence, in terms of section 36 of the Criminal Procedure (Scotland) Act 1995 the accused failed to mention a fact which is material to the office and which he could reasonably be expected to mention, and
- (b) before appearing before the sheriff for judicial examination he was permitted to consult a solicitor.").
§ The noble and learned Lord said: This amendment again returns us to a point that I raised at Second Reading; namely, why the provisions of Clause 1—and in particular the provisions of neither subsection (4) nor subsection (5) of new Section 2A of the 1989 Act—did not cover the situation where an accused who has been charged with an offence under Section 2(1)(a) of the 1989 Act appeared before the sheriff for judicial examination. Although the noble Lord, Lord Dubs, replied to this point, I understand that he was advised to some extent about this peculiarly Scottish procedure by his noble and learned friend the Lord Advocate and I believe that this matter may merit slightly fuller discussion now in Committee.
§ In Scotland we have a procedure whereby, after an accused has appeared on petition on a serious charge—clearly, membership of a specified organisation in the current climate would fall into such a category—he can be brought before a sheriff in private for examination on the charge and may be questioned by the procurator fiscal. The questioning is limited to eliciting any admission, denial, explanation, justification or comment which the accused may have on a variety of issues, 104 including on the nature and particulars of any defence that he may have to the charge. It seems to me that such particulars would undoubtedly include the mentioning of any fact which is material to the offence of being a member of a proscribed organisation and a fact which he could reasonably be expected to mention.
§ That procedure follows the statutory rules set down in the Criminal Procedure (Scotland) Act 1995. It almost universally takes place when the accused is represented by a solicitor who has certain rights to protect his interests at the hearing which takes place in private. It seems to me that if this legislation is to apply in Scotland, there is a strong case that in addition to applying to situations where an accused is questioned under caution about the offence or charged with the offence or informed by the constable that he might be prosecuted for the offence, it should apply also when, having been charged and brought before the court, he is questioned by the prosecutor under the supervision of the sheriff, having received certain cautions and warnings as to the questions he is entitled to answer or decline to answer and what comment may be made on failure to answer. It is appropriate that it should apply also to that procedure. Therefore I raise the matter again and look forward to the response. I beg to move.
§ The Lord Advocate (Lord Hardie)
I do not believe that the inference from silence provisions in Clause 1 should extend to judicial examination before a sheriff in Scotland since it is designed to deal with a different type of situation. As the noble and learned Lord, Lord Mackay of Drumadoon, has explained, in Scottish criminal procedure, adverse comment can be made in relation to the silence of the accused before the sheriff at judicial examination, usually when he does not refer to an alibi or something of that sort and later, at the trial, he produces an alibi.
Under the Bill, Clause 1 deals with a slightly different situation; namely, inferences being drawn from the accused remaining silent on being questioned after appropriate caution but before being charged by police officers. Such inferences could be drawn even if the accused gave no evidence at the subsequent trial.
At the judicial examination at present, it would be normal for the procurator fiscal to ask about a reply to the caution on charge or it would be normal for him to ask the accused about an admission that he was alleged to have made to the police at some stage in the proceedings. However, it would not be normal to go through the full interview and to put to him that he had not answered a question or anything of that sort. Therefore, the position here is that if, at the stage of the caution and before the charge, the accused had failed to answer a question, that might be used against him at his trial. On the other hand, if the procurator fiscal were obliged to put that to him at judicial examination, in between times the accused might have had the opportunity to think about the matter and may wish to deny it. There is then an immediate complication at the trial because there is a conflict between the position adopted at the stage of caution before charge and the position adopted at judicial examination before the sheriff.
105 For those reasons, we do not believe that it would be appropriate to introduce this provision into judicial examinations and I invite the noble and learned Lord to withdraw the amendment.
§ Lord Thomas of Gresford
Am I not right in thinking that the legislation from which those words come refers to a person who is being questioned under caution who fails to mention a fact which is material to his defence? That is the mirror of this, is it not?
What has happened in this particular legislation for the first time, as far as I know, is that a person is liable to have an adverse inference drawn against him if he fails to mention a fact which is material not to his defence but to the offence and which he could reasonably be expected to mention. Therefore, it would not be enough for him to say, "I deny that I am a member of that organisation". It would be open for the court to draw an inference if he did not add, "because I was out of the country at the time", or, "I have never paid a subscription", or, "I have never been asked to join", or something of that sort. Surely, failure to mention a fact that is material to the offence is very different from failure to mention a fact that is material to a person's defence. Does the noble and learned Lord agree that that is where the wording comes from, and can he explain the difference?
§ 10 p.m.
§ Lord Hardie
The position is quite different and that is why it is not appropriate to include it in the judicial examination procedure. The intention of the provision is to remove the right of silence in relation to questions about membership of the specified organisation. At the stage of interview by the police under caution the accused would be advised that if he failed to answer a question directed to the investigation of his membership of that organisation and failed to provide a material fact which could point to his non-membership of that organisation that could be relied upon and adverse inferences drawn from it at his trial. All of this takes place prior to charge. He is cautioned and obviously has the benefit of the presence of a solicitor prior to his being questioned. As the noble and learned Lord, Lord Lloyd, said earlier, once the accused has seen a solicitor it is unlikely that he will say, "No comment." Any solicitor worth his salt will spell out in very simple terms the implications of making that response or remaining silent; and any criminal worth his salt will realise that the way round that is to deny that he is a member of the organisation, in which case this provision will not apply. It would not be a failure to deny membership or to admit a material fact.
Once one got to the judicial examination under the present law one would be concerned to ascertain whether the accused had a particular line of defence such as alibi, incrimination or what-have-you. If he failed to mention that at the judicial examination and sought to rely upon that particular defence at his trial, the prosecutor could comment on that fact to the jury. The jury might conclude that the inference to be drawn was that the alibi should not be believed. That would not prove the opposite. The jury might conclude it was 106 rather strange that the accused had failed to explain the nature of his defence at the first opportunity at the judicial examination and yet months later at his trial he had come up with an alibi in which a number of witnesses said that at the time the accused was in the pub or what-have-you. The prosecutor could ask the accused why he had not said that at the judicial examination. The judge would direct the jury that that fact could be taken into account. Its only effect is that the jury would be entitled to disbelieve his alibi but it could not go on to say that because it did not believe the alibi it believed that the accused was there and involved. The jury would simply reject that special defence. The jury must still be satisfied that there is sufficient positive evidence to prove his guilt beyond reasonable doubt. Here we are talking about a different situation.
§ Lord Thomas of Gresford
I understand that if a person fails when questioned by a police officer to say that he was not there it is difficult for him to raise an alibi in his defence. That is a situation which happens every day. The caution that is used in England, Wales and no doubt Scotland reflects that. But this is not failing to mention a fact that is material to his defence, such as, "I was not there"; it is failing to mention a fact that is material "to the offence". What is a "fact which is material to the offence" which he fails to mention? It is not a matter of saying, "I was not there", which subsequently becomes a defence.
§ Lord Hardie
I directed my remarks to the amendment. The noble Lord has taken the discussion further away from the amendment. The offence would be membership of the specified organisation. I suppose that a police officer may well ask the direct question: "Are you a member of this organisation?". It may well be that under the present law a person would not be obliged to answer that question. He would simply say: "I am not obliged to answer that question", or merely say nothing. If he adopts that position under this provision the jury are entitled to draw an adverse inference.
§ Lord Thomas of Gresford
Is it sufficient therefore for him to say, "You prove it", in answer to the question, "Are you a member of this organisation?". Is that sufficient for no adverse inference to be drawn under this clause?
§ Lord Hardie
I believe that an adverse inference could be drawn. I think he would be required to say no.
§ Lord Thomas of Gresford
If he says no, that is sufficient, but if he says, "You prove it", then an adverse inference can be drawn. Is that what the noble and learned Lord is saying?
§ Lord Mackay of Drumadoon
Dealing with the matter just debated by the noble and learned Lord the 107 Lord Advocate and the noble Lord, Lord Thomas, I had understood, particularly since becoming a Member of this House, that any procedures undertaken, whether by police constables or prosecutors in investigating an offence, in questioning an accused and preparing a case for trial were designed not only to establish his guilt but also to explore the issue of his possible innocence. I have a distinct recollection of being reminded of that fact time and again when I sat opposite the noble Lord, Lord Williams of Mostyn, with not a little assistance from the noble Lord, Lord Thomas. I have to say that I listened to the interchange with a measure of amusement.
I should have thought that, even having been provided with legal advice, if an accused, whether before a charge which will be covered by the new subsection (4) or after a charge (or at the point of being charged) which will be covered by new subsection (5) said, "I am not a member of the specified organisation", but failed to mention that he had attended a funeral of an established member of the specified organisation wearing some form of paraphernalia of the nature described earlier by the noble Lord, Lord Williams of Mostyn, failure to mention that fact could undoubtedly fall within the description of a fact material to the offence. If a person attends a funeral of members of the organisation wearing paraphernalia and does not volunteer that fact, it could well give rise to an adverse inference being drawn. As the noble and learned Lord the Lord Advocate correctly said, that goes beyond mere comment in discrediting the defence, giving rise to an inference which has legal consequences—which are slightly different in England and Scotland—of a new significance.
I accept what the noble and learned Lord the Lord Advocate said; namely, that the judicial examination procedure had a somewhat different purpose from that set out in the questioning that can be allowed under subsections (4) and (5) and the inference that can be drawn under subsection (6). It may well be that if the procedure for drawing inferences were to apply to judicial examinations a somewhat more extensive amendment might be necessary.
Time will tell whether the Act requires to be used in Scotland. When we have the first or second annual report, if we discover that it does, then there may be some justification for amending the 1989 Act or possibly the 1995 Act to take account of what experience has taught us. Having explored the matter further, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Mackay of Drumadoon moved Amendment No. 7:
Page 2, line 14, at end insert—
("() Subsection (6) below does not apply unless the accused has been cautioned that if he fails to mention a fact that is material to the offence and which he could reasonably be expected to mention, a court or jury may be able to draw from such failure inferences of the nature referred to in subsection (6) below.").
The noble and learned Lord said: This again returns to a matter which I dealt with at Second Reading; namely, the caution. In response, the noble Lord, Lord Dubs, indicated, as I recollect, that a new caution would be both useful and necessary. I am at one with him on that. However, he went on to indicate that it would be decided administratively. I seek to explore that matter under Amendment No. 7 which would provide that subsection (6) would not apply,
unless the accused has been cautioned that if he fails to mention a fact that is material to the offence and which he could reasonably be expected to mention, a court or jury may be able to draw from such failure inferences of the nature referred to in subsection (6)".
As I indicated at Second Reading, it seems to me that a new caution is essential. It is important that those who are to work with the Bill when it becomes law have the clearest indication from the Government as to where the new caution will come from.
§ I deal first with the situation in Scotland where we do not have the benefit of the Police and Criminal Evidence Act 1984 in which Section 66 gives the Secretary of State the power to issue codes of conduct dealing with the situation. One possibility is that it might be for the Lord Advocate to give guidance in the form of directions to chief constables which they would no doubt pass on to police officers as to the caution which would be appropriate. It would apply when the officer had it in mind to rely on the provisions of subsections (4), (5) and (6) of the new Section 2A. It would be helpful if a statement to that effect could be made.
§ As regards England and Wales, once again I tread in waters with which I am not familiar. However, I should have thought that Section 66 of PACE would be a solution. No doubt there is a similar provision for Northern Ireland. I think it would be undesirable to leave it as a matter of uncertainty from where guidance on the caution is to come.
§ I hope that the Minister who is to reply can make it clear, reaffirming what the noble Lord, Lord Dubs, said, that a new caution is necessary, indicating where its terms will come from. That would be subject to the fact that ultimately in any case it will be for the court to decide whether, having regard to the caution given, fairness to the accused permits the reply to the caution of silence in response to any questions asked or the opportunity of making a statement which was not taken—fairness allows that evidence to be admitted. I beg to move.
§ Lord Williams of Mostyn
I am grateful to the noble and learned Lord for what is essentially a probing amendment, requesting a restatement or maybe an amplification of what has already been said at Second Reading in the context of England and Wales and Northern Ireland.
There are two aspects here. By virtue of subsection (5)(b), the accused already has the right to consult a solicitor. Doubtless his solicitor would explain the legal position to him. However, I agree with what the noble and learned Lord said. I can tell the Committee that there will be administrative guidance to ensure that the person detained is aware of the implications of failing 109 to mention a material fact in relation to membership of the proscribed or specified organisation. The noble and learned Lord is right to say, or at least imply, that without that guidance a court may well be reluctant to draw adverse inferences from any failure.
He is also right about the differences in the jurisdictions north of the border. I have the authority of the noble and learned Lord the Lord Advocate to say that he intends to consult in particular the legal profession and would be minded then to follow the course indicated—namely, to issue directions about what should obtain in circumstances which are likely to be fairly uncommon.
§ Lord Mackay of Drumadoon
I am grateful for that very helpful answer. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 8 not moved.]
§ 10.15 p.m.
§ Lord Holme of Cheltenham moved Amendment No. 9:
Page 2, line 24, at end insert ("and
(c) the accused shall not be committed for trial in England and Wales, or be found to have a case to answer or to be convicted, solely on the basis of the inferences and the statement of a senior police officer to which subsection (3) above applies.").
§ The noble Lord said: I am not sure if I am alone in being slightly foxed by the sequence of the groupings. In speaking to Amendment No. 9, I support also Amendments Nos. 17 and 18 in the name of my noble friend Lord Russell.
§ Amendment No. 9, which is in the second grouping on the sheet that we have been given, is a probing amendment. Its purpose is simple: it is to establish whether any third leg of corroboration is required over and above what the noble Lord, Lord Lloyd of Berwick, called the two zeros making one—the two zeros being the inferences plus the statement.
§ I want to be absolutely clear about this because, as recently as Second Reading, the noble Lord, Lord Dubs, was talking about further corroboration. In quite a lot of the press publicity surrounding the publication of this Bill the word "corroboration" appeared. I want to be 100 per cent. clear whether any further evidence is required over and above the inferences and the statement of the senior police officer in order for a case to be found to be answered or for a conviction to be made. I beg to move.
§ Lord Mackay of Drumadoon
Before the Minister replies, perhaps I may slightly complicate the situation again by indicating that, as I understand the Bill, we in Scotland will not have even the two zeros. The effect of new Section 2A(10) is that, when dealing with questions of sufficiency of evidence in Scotland, one piece of evidence will be sufficient. Reading from line 47, it states:any evidence that he belongs or, as the case may be, belonged to the organisation shall be sufficient evidence of that matter".110 As I understand the drafting of Clause 1, that would cover the opinion evidence of a police superintendent under subsection (2). That would only apply if the court or jury had drawn an inference under subsection (6) but, because of the differences between the law of corroboration in Scotland and England, that inference would not go to the question of sufficiency; it would merely be a precondition which required to be satisfied before the sufficiency of evidence could be resolved by the one piece of evidence, which could be opinion or a membership book or other paraphernalia.
I beg to differ with what was said in another place by the Minister of State, Adam Ingram, that there was no diminution of the corroboration requirements in Scotland. There is a serious difference but one which I understand and am prepared to accept. The noble and learned Lord the Lord Advocate and his officials have been quite right in resisting any suggestion at all that one could draw from silence a piece of evidence which was sound in sufficiency. I believe that, because of the peculiar way in which Scots law deals with corroboration—I do not use that word in any offensive way—it is important to resist any suggestion that silence can give rise to an inference which, as a piece of evidence, goes to the question of sufficiency.
It may well be that, having intervened, there has been a change in the Minister who is to reply. With the greatest respect to the noble Lord, Lord Williams of Mostyn, I would welcome such a change.
§ Lord Hylton
The noble Lord, Lord Holme of Cheltenham, is probably right to be concerned about corroboration and right to probe that question. However, if his amendment were to be accepted in its present form, it would appear to put the law of England and Wales on a different footing from the law of Northern Ireland. To my mind that would be a bad thing and ought to be resisted.
I come now to Amendments Nos. 24 and 25, which stand in my name and which for some reason or other have been grouped with Amendment No. 9. My amendments are probing ones and they concern the matter of retrospection. Amendment No. 24 is a paving amendment whereas Amendment No. 25 is straightforward in form. In Great Britain the new standards of proof will apply only to offences committed after the Bill becomes law and comes into force. However, it appears from Clause 3(2) that offences in Northern Ireland may have been committed at any time before or after the passing of the Act. I am sure the Minister will correct me if I am wrong in saying that. It thus appears to me that there is unlimited retrospection in this respect as regards Northern Ireland.
Retrospective legislation is always to be avoided and the different and exceptional treatment for Northern Ireland strikes me as being wrong in principle. I therefore seek to limit the retrospection to the date of 10th April 1998. As your Lordships will know, that is the date of the signing of the Belfast agreement. I very much look forward to the Minister's reply as I received no reply when I raised this point at Second Reading.
§ Lord Hardie
Perhaps I may deal first with Amendment No. 9. The amendment would not permit 111 the court to convict on the basis of inferences plus the statement of the senior police officer. But that is what in certain circumstances the Government would wish to occur, certainly as far as concerns England and Wales. We think that that is not unreasonable. The accused will know the effect of failing to answer a relevant question. So, as far as concerns England and Wales, the short answer is that the adverse inference plus the police officer's statement would be sufficient evidence.
The situation in Scotland is different because of the law of corroboration. The provision affecting Scotland, as the noble and learned Lord, Lord Mackay of Drumadoon, pointed out, is subsection (10). The effect of subsection (10) may best be illustrated by examples. First, I take the example of where an adverse inference cannot be drawn. In that situation the normal rule of corroboration applies that two separate sources of evidence and required pointing to the guilt of the accused. One of the sources may be the opinion of the police officer. But it is also clear from the earlier provisions in relation to the opinion of the police officer and from subsection (3)(b) that the statement of the police officer shall be admissible as evidence of the matter. But it goes on to say that,the accused shall not be committed for trial in England and Wales, or be found to have a case to answer or be convicted [anywhere] solely on the basis of the … statement".Therefore, the statement alone is not enough.
Then we come to the situation where an adverse inference is drawn. That is a precondition of subsection (10). That subsection says that,where the court or jury draws an inference as mentioned in subsection (6) … any evidence that he belongsto the organisation is sufficient. There is a precondition that there has to be an inference. In addition to that any evidence would be sufficient. But I would not accept that the opinion evidence of the police officer would be sufficient because of the provisions of subsection (3). That is how I interpret that provision and see it applying in Scotland because of the question of corroboration. As the noble and learned Lord is well aware, an inference in that situation would not amount to a separate piece of evidence for the purposes of the law of corroboration.
I now turn to the amendment of the noble Lord, Lord Hylton. If these amendments are accepted, as the noble Lord has said, it would mean that a person who was a member of a specified organisation before 10th April of this year would not be subject to the new arrest and detention powers. That cannot be right. If the specified organisations were never, and are not now, part of the peace process, why should membership of these organisations before 10th April be treated differently from membership after that date? We do not accept that that would be reasonable. Accordingly, I ask noble Lords to withdraw their respective amendments.
§ Lord Hylton
Perhaps I may reply to what the noble and learned Lord has just said. To my mind, once the 112 agreement was public and had been signed by the parties to it, the splinter groups had an opportunity to declare their ceasefires, but they failed to take it.
§ Lord Thomas of Gresford
Perhaps I may revert to the earlier part of the Lord Advocate's reply. He said that an inference could be drawn from failing to answer a relevant question. That is not what the Bill says. It states that an inference is to be drawn if a person, on being questioned and after advice, fails to mention a fact which is material to the offence. It would be quite wrong for it to be thought that failing to answer a relevant question gives rise to an adverse inference under the terms of the Bill.
Failing to mention a fact which is material to the offence is to be proved by subsection (7), which states,Subject to any directions by the court, evidence intending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention".Therefore it is not simply a question of drawing an adverse inference from failure to answer a relevant question. The prosecution has to prove a fact which is material to the offence, it has to prove that the person failed to mention that fact, and it has to prove the opinion of the police officer. I appreciate that the noble and learned Lord the Lord Advocate has been as rushed over this legislation as everyone else but I say with the greatest respect to him that it is important one uses the words carefully and only the words that are contained in the Bill.
§ 10.30 p.m.
§ Lord Hardie
I accept entirely what the noble Lord says. Unfortunately, I was using a shorthand method and as ever when one does that one may give a false impression. If I gave a false impression, I certainly apologise to the noble Lord and to the Committee. The way in which the noble Lord has expressed the position is perfectly correct.
§ Lord Holme of Cheltenham
Having launched a probing amendment I think it is quite clear that the answer is as stony as I expected, although my noble friend Lord Thomas has extracted a useful clarification from the Government. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Hylton moved Amendment No. 10:
Page 2, line 49, at end insert—
("(10A) Where a person is convicted of an offence under section 2(1)(a) above and—
§ The noble Lord said: Amendment No. 10 is also semi-probing in character. Its purpose is quite simple; it is to limit the length of imprisonment that can be 113 imposed for membership of an illegal organisation when no other form of criminal behaviour has been alleged and proved. It is necessary because there is so much uncertainty. For example, on 1st September Mr. Nicholas Watt, The Times political correspondent, wrote that mere membership could attract a 10-year gaol sentence. Perhaps the Minister can confirm that or, if not, tell us what the maximum sentence could be.
§ Following discussion in this Chamber on Amendments Nos. 1, 4 and 8, there seems to be uncertainty about the precise meaning of "belongs to an organisation." Here I follow both the noble and learned Lord, Lord Mayhew of Twysden, and my noble and learned friend Lord Lloyd of Berwick. I do not imagine that terrorist splinter groups keep elaborate and accurate membership records. Does the phrase therefore mean "is actively engaged in," or does it mean "supports financially," or "sympathises with and may do the odd errand for?" I believe the expression is an elastic one and could be stretched to cover a wide variety of situations. For all those reasons I propose that the maximum penalty for mere membership should be one year's imprisonment. I beg to move.
§ Lord Monson
I have considerable sympathy with my noble friend's amendment. After all, it is perfectly possible to be a member of an illegal organisation without ever committing a crime of violence or even being directly or indirectly involved in the commission of a crime of violence. I believe that people should be punished for the harm they do rather than the harm they might theoretically do at some point in the future. For that reason I am inclined to support the amendment.
§ Lord Williams of Mostyn
The amendment to which the noble Lord, Lord Hylton, spoke is, I hope, still grouped with Amendments Nos. 19, 27, 28, 55 and 57.
§ Lord Williams of Mostyn
I am most obliged. I think it is convenient if I specify the amendments I am speaking to and establish that they are still grouped. The noble Lord is quite right. Ten years is the maximum penalty, as it is the maximum penalty—
§ Lord Holme of Cheltenham
I am grateful to the noble Lord for giving way. For his assistance I hope I may give him notice that Amendments Nos. 27 and 28 in this group will not be moved.
§ Lord Williams of Mostyn
The noble Lord, Lord Hylton, is right that 10 years is the maximum penalty, as it is at the moment, for membership of a proscribed organisation. I think I made that point when I dealt with forfeiture as an additional penalty to what I said on that occasion, which was 10 years' imprisonment and unlimited fine. Forfeiture is an addition.
If one puts one's eye and mind to these amendments, I do not think that they are capable of bringing about the consequence that the noble Lord wants. As the noble Lord said, Amendments Nos. 10, 19, 55 and 57 seek to 114 limit sentencing powers to 12 months where conviction has been secured on the basis of a statement made by a senior police officer and any inference from the accused's silence.
That is not exclusive, of course, because I did give worked examples. There may be a statement from a senior police officer; there may be inferences from silence; but, of course, there may be a lot of other evidence. These amendments would restrict sentencing power in all cases no matter the quality and weight of the other evidence adduced at the trial.
We believe that it is for the trial judge to come to his own conclusion about the seriousness of the offence, the nature of the offence and all the relevant circumstances. We do not believe it is right to limit the sentencing power to one year. The noble Lord, Lord Monson, said that people should be sentenced for the harm they do. I do not disagree, but if a defendant is a member of the Real IRA and if it was, in fact, the Real IRA which carried out that monstrous act in Omagh, I find it very difficult in all conscience to say that 12 months is an appropriate sentence for belonging to such an organisation. In certain circumstances the sentence, in the judge's discretion, might appropriately be very much longer than 12 months. Therefore, I do not think that the amendments hit the target. But even if they did, I would not be prepared, with all respect, to accept them.
§ Lord Mayhew of Twysden
Is not the short point on this amendment that we ought to be looking at the safety of the provision as drafted rather than admitting to ourselves that this may be a little less than safe and therefore that will be reflected in a shorter maximum sentence? I believe we are right to look at the safety of all these provisions. However, once we are satisfied that they are sufficiently safe, I see no case for diminishing in any particular set of circumstances the maximum sentence.
§ Lord Hylton
I am a little disappointed that the noble and learned Lord the Minister has been unable further to clarify the meaning of the phrase "belongs to an organisation". Nevertheless, on balance, I am happy to leave the sentencing to the discretion of the court. On those grounds, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Avebury moved Amendment No. 11:
§ Page 3, line 7, leave out ("and Conspiracy").
§ The noble Lord said: This amendment, and the series of amendments which have been taken with it, removes Clause 5 and all the other references to conspiracy to commit an offence overseas which are contained in the Bill, leaving alone only the parts which are concerned with terrorism in Northern Ireland.
§ As I said earlier, there is no reason for taking the conspiracy proposals at this stage rather than waiting a couple of months and putting them into the Queen's Speech in the proper and normal manner. I hope noble Lords would agree that there have to be exceptional grounds of urgency for consideration of any legislation in the middle of the Summer Recess.115
§ While the Government have advanced a case on the Irish provisions of the Bill that some action is necessary in the wake of the appalling catastrophe at Omagh, though I would not agree with them that legislation was necessarily the best response to that catastrophe, there are no such arguments in the case of conspiracy to commit acts of terrorism abroad.
§ We all know that in many parts of the world there are tyrannical governments which oppress and kill their own subjects. If people take up arms against those governments, they are undoubtedly committing an offence under the law in force in that country. Anyone in the United Kingdom who is connected with their activities may then be prosecuted under the Bill. I shall look at the exact nature of the activities which could attract proceedings in a moment. But first let us consider whether all liberation movements are now to be seen as of a criminal nature.
The United Nations itself envisages that in the exercise of their right to self determination peoples under colonial and alien domination have the right to,
struggle … and to seek and receive support, in accordance with the principles of the UN charter",
and in conformity with the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States. The definition of aggression—it is in General Assembly Resolution 3314 of December 1974—recognises the legitimacy of the struggle of peoples under colonial and alien domination. This includes the right to use armed force against colonialist powers which suppress the aspiration of people to their independence when peaceful means have all been exhausted.
§ Mention was made earlier today of the case of Nelson Mandela. The ANC, now the party of government in South Africa under that universally respected and saintly man, was driven to acts of violence against the racist apartheid regime. Many people in this country worked hard, no doubt including the noble Lord, Lord Williams of Mostyn, to support the ANC. Should we then have been treated as criminals?
§ The Eritrean Peoples Liberation Front, led by Isaias Afewerki, now President of Eritrea, fought a 30-year war of liberation against the colonial domination of the Ethiopians. For many years, I was the chairman of the Eritrean Support Group in the United Kingdom which tried to mobilise political support for the cause of the Eritreans. Was that an offence; or would it be treated as an offence under the Bill?
§ The Bangladeshis fought a war of liberation to secede from Pakistan, and many people here supported them in their struggle.
§ Lord Dunleath
While I take the point that the noble Lord makes, he is talking about wars of liberation, in the case of the ANC and others where they are in the majority. That is not the case in Northern Ireland. We are not talking about a war of liberation.
§ Lord Avebury
We have left the Northern Ireland provisions. We are not dealing with those. We are 116 dealing with Clauses 5 to 7 and the consequential amendments which I tabled which remove the offence of conspiracy to commit offences overseas. This has nothing whatsoever to do with Northern Ireland. We have left that part of the Bill.
§ Lord Avebury
I am grateful to the noble Lord for his apology.
I do not wish to weary the Committee with too many examples from the past. Let me turn to some from the present day. Of course it is a little trickier to consider these instances of liberation movements which still function because the conventional mindset automatically condemns the revolution unless it is already on the verge of success. But there are instances of what I may call for the purposes of this debate partial legitimacy where states such as the United Kingdom are prepared to deal with liberation movements or secessionists as a matter of expediency, or in order to further a peace process which is under way in a particular country.
I give an example. Richard Holbrooke, the architect of the Dayton Accords, has met representatives of the Kosovo Liberation Army, and so has US Ambassador to Macedonia, Chris Hill. Could I and my friends help the Kosovo Liberation Army from this country without running the risk of being prosecuted?
What about the Sudan People's Liberation Army, an organisation which has fought for many years against the domination of the Islamic regime in Khartoum because the southerners in Sudan wish to obtain the self determination of their peoples so that they can run their affairs in accordance with a completely different culture, and different ethnic origins, from the people in the north? If we support the People's Liberation Army or if we have any dealings with them, are we running the risk of prosecution, and how does that square with the United Kingdom's membership of the Friends of IGAD, which has to have dealings with the SPLA for the purposes of meetings to try to secure a peaceful political resolution to the problems in that country?
Mention has already been made in another place of one final example that I shall quote, and that is northern Iraq. In northern Iraq there are two separate de facto entities which are governed by the Kurdistan Democratic Party and the Patriotic Union of Kurdistan. Both those organisations are presumably unlawful in terms of Iraqi law. The equivalent in the United Kingdom would be a separate government in, for example, Cornwall or East Anglia with its own constitution and law, and so on. That would clearly be unlawful in the United Kingdom as well. Therefore, any person who supports or has dealings with the KDP and the PUK is committing an offence, both under Iraqi law and under the law of the United Kingdom, and yet we constantly have meetings with the KDP and the PUK. They are invited to London and they sit round a table with ministers, discussing the possibility of a peaceful resolution of the disputes between the two parties in the region.
117 The Minister has already said, when I quoted one particular example, that of course, the Attorney-General has the right not to sanction a prosecution. He may say at the end of this debate that in all the circumstances mentioned by the noble Lord, the Attorney-General would not give his fiat to prosecution. That would not be good enough, because the law has to be certain. It is no good having to go to the noble Lord every time I wish to know if a particular course is lawful or not and for him to say that in that particular instance I can be pretty certain that the Attorney-General will not bring proceedings. It is absolutely essential, if one is going to pass legislation of this kind, that people know whether a particular course of action which they propose to take will be lawful or not.
I am also concerned about the position of groups that operate in this country as political oppositions using only peaceful means. They already come under suspicion and often receive increased attention from the police and security services, which, as a result of the ending of the Cold War, are looking for a new role and focusing greater attention on the activities of foreign groups within the United Kingdom. I believe also that our Government have come under increasing pressure from foreign states, such as those in the Middle East and North Africa, which accuse us of harbouring their terrorists, and that, as a result of these pressures, we keep many bona fide refugees in this country under unnecessary and constant surveillance.
In one instance of which I know, the police launched an investigation which has had disastrous consequences for a legitimate organisation. That was the Kurdish Community Centre, whose premises were raided by the Special Branch on 20 November 1997, when a number of documents, computer files, photographs and papers were confiscated, not all of which have been returned. The police then informed the National Lottery Charities Board that they were making enquiries about the centre and, as a result, the board suspended its agreed funding in the middle of February on the grounds that it was awaiting the results of the police inquiry. As Members may imagine, that has had extremely serious effects on the operations of the centre.
The inquiry is still continuing and the police can give no idea when they will have completed their work. At one of the interviews with an official of the centre, who was the target of an assassination attempt in December 1994, the police used an interpreter who has close links to the Turkish embassy—and there are good reasons to suspect that the police are working closely with the Turkish authorities on the case.
On 21st August, the centre was attacked by arsonists, causing damage estimated to amount to hundreds of thousands of pounds. Computers used in training refugees were destroyed as well as most of the furniture. The centre's co-ordinator, Sheri Laizer, told the Ham and High:We believe the actions of some Turkish government inspired groups against the Kurdish community are being encouraged by the completely unjustified attitude of Special Branch police towards our centre".118 It is no wonder that many other groups are terrified of the effects of this legislation and are wondering whether they are next on the list. The Government would not be so desperate to get these provisions onto the statute book if they did not have some targets in mind, and those are not the terrorists who bombed the US embassies in Kenya and Tanzania, the originators of which were certainly not from this country. The immediate consequence of the clause will be to undermine the security of thousands of people who fled here from tyrannical regimes thinking they would be immune from persecution in a free country. I beg to move.
§ Lord Elton
Noble Lords have heard in this Chamber the noble Baroness, Lady Cox, describe how the Government of the Sudan arrange for the inhabitants of the southern part of that country to be attacked and have their property and, in some cases, their loved ones taken away from them. To resist that in that country is an act of rebellion. To resist the action of central government in this country is also an act of rebellion. The noble Lord, Lord Avebury, pointed out that unless the legislation proposed is absolutely clear nobody will know until cases have been brought whether supporting the inhabitants of the southern part of that country is a criminal act.
I do not want to add to the catalogue - and I do not expect the Minister to answer every hypothetical case this evening—but it seems to me that we have demonstrated what was clearly demonstrated in the recent debate on the question of whether or not to lower the age of consent for homosexual activity in an earlier Bill—that is, that to legislate in haste on a matter which is complex, controversial and complicated is a very great error.
It seems to me that we all want legislation of this sort, but what we do not want to have around our necks is flawed legislation of this sort which can tie the hands of the many—and good—people who wish to further the causes of peace and prosperity throughout the world. But that is what is in danger of happening if the Committee agrees these clauses. I hope that before the evening is over, if we have not decided to drop them, the Government will have agreed not merely to review them, but to give parliamentary time to revising them, if that is necessary, within the next 12 months.
§ Lord Stoddart of Swindon
I support the remarks of the noble Lords, Lord Avebury and Lord Elton. I do not believe that this Bill is the proper vehicle for what the Government have in mind. It is the antithesis of democracy suddenly to bring forward in the context of Northern Ireland and its problems a far-reaching provision which affects boundaries far and wide of Northern Ireland and the troubles there.
The noble Lord, Lord Holme, when he made his Second Reading speech, asked a question which was not answered. He asked whether the Government would be bringing forward these provisions in Clauses 5, 6 and 7 by means of a recall of Parliament if the Government did not need, or felt they did not need, to legislate on Northern Ireland and, in particular, following the 119 Omagh bombing. That question was not answered. It requires an answer. I believe that my noble friend should give us that answer. My guess is that the answer is no.
There has been adequate opportunity in the past for legislation to be enacted. We have heard that there was a Private Member's Bill. It was killed in the House of Commons. But there has been time since then, under this Government, to reintroduce those provisions if the Government believed that it was necessary to do so. They have not done that. It is not good politics and it is not good democratic politics to use the provisions of this Bill for that purpose.
I do not believe—and I cannot find anybody else who believes—that this Bill is so urgent that it could not await a Queen's Speech to contain the legislation in order that the House of Commons and this House could have a proper Bill put before it with the opportunity to debate those very wide-ranging provisions which have deep implications for freedom and for those who sought succour in this country. We should discuss the Bill with a proper Second Reading, Committee and Report stages and Third Reading so that we can consider in good time the very serious implications which have been pointed out in great detail by the noble Lord, Lord Avebury.
I shall not go through that again. One needs only to mention East Timor as an example. And what about Iraq? Before 1991 we were supporting Iraq. What do we now do about Iraq? Before 1991 we should have been prosecuting people who were trying to undermine Saddam Hussein. What do we now do? Do we prosecute them now because the law in Iraq is exactly the same now as it was pre-1991 and the invasion of Kuwait? Therefore, one has only to mention one or two instances to realise the problems which may arise.
At present, the terrorists, or supposed terrorists, who are organising are Moslems. This legislation may be perceived as racist. It may not be seen as such by people in this Chamber, but outside it and in certain parts of this country, it may very well be seen as racist legislation directed at a particular religion and set of people. Those are the reasons that I am opposed to this legislation. I do not believe that a Labour Government, whether they call it new, old or whatever they call it, should be introducing such legislation in a manner which does not enable it to be properly considered under parliamentary procedures.
I do not know whether the noble will press the amendment to a vote, but if he does so I shall be hard put to oppose it.
§ Lord Monson
The noble Lords, Lord Avebury, Lord Elton and Lord Stoddart of Swindon, have made some extremely telling points. Realistically, I do not suppose there is any chance that the Government will accept all the amendments in this grouping tonight. However, perhaps they might consider the very modest Amendment No.31 in the name of the noble Earl, Lord Russell, who is no longer with us. That amendment would not seriously dent Clause 5 but would confine its operation to conspiracies that might involve the death of 120 innocent civilians. However, it would no longer cover conspiracies involving non-violent plans such as the disruption of communications. When it is studied thoroughly it will be seen to be an extremely modest amendment. That is perhaps a compromise that the noble Lord, Lord Williams, can accept.
§ Lord Mayhew of Twysden
Perhaps I may put to the noble Lord who is to reply a question that I do not believe to be pedantic in character. The noble Lord, Lord Avebury, said that someone might act in support of a worthy libertarian movement. My noble friend Lord Elton gave the example of support of Christians in the Southern Sudan. The noble Lord, Lord Avebury, said that it must be wrong to wait upon the decision of the Attorney-General to discover whether or not it was lawful. Perhaps the noble Lord who is to reply can comment on my understanding. I believe that under the provisions of the Bill there is no question but that it would be unlawful. The Bill contains the saver that such proceedings cannot be instituted except with the leave of the Attorney-General. Therefore, it will be unlawful to do that. The only matter at issue is whether or not proceedings can be instituted. If my understanding is correct, does the noble Lord believe that position to be satisfactory?
§ Lord Elton
It is not as simple as that. Even if the Attorney-General decides that it should not be proceeded with the Home Secretary may take a different view.
§ Lord Clinton-Davis
I am not very happy about the way this has been proposed, but the reality is that the Government will say that the situation is one of urgency, that not all terrorists are benign and that there is a need to introduce some kind of legislation to ensure that Britain, and London in particular, is not seen as a haven for their enterprises. I am not wholly convinced by that, but the reality is that this Bill has had its Second Reading. I agree with the comments of the noble and learned Lord, Lord Mayhew. A specific offence is prescribed and discretion is given by reason of the requirement to obtain the fiat of the Attorney-General. The Home Secretary is also involved in that process.
Can my noble friend outline the principal rationale that is likely to be applied by the Attorney-General in approaching these matters to deal with the considerations with which the noble Lord, Lord Avebury, was concerned? He referred to the position of Nelson Mandela in the days of apartheid. Many other examples have been quoted. Could that situation be taken into account in a principled way so we could understand in advance how the Attorney-General would approach these matters? There is a world of difference between the situation described by the noble Lords, Lord Elton and Lord Avebury, in which people are fighting and occasionally have recourse to violent methods and a situation in which there are plots and conspiracies devised in this country to ensure that some terrible violence is done abroad to innocent people. If 121 my noble friend can illustrate how the Attorney-General is likely to approach these matters it may be of some help to the House in approaching this issue.
§ Lord Archer of Sandwell
It was not my intention to intervene in this debate, particularly at this late hour. However, some of us are confronted with a serious dilemma. I believe that more international co-operation is required in reducing and combating crime. I should like to see more of it than we have already, and have said so on a number of occasions. I should certainly regret it if this country were seen as a haven for terrorists who could find no shelter elsewhere.
However, the kind of cases raised by the noble Lord, Lord Avebury, are in a different category. Some of us have spent many years of our lives supporting liberation movements in other countries. I declare a personal interest. I was a foundation member of Amnesty International in 1961 and was for some three years chairman of the British section of Amnesty. It would be appalling if we put an end to the reputation of this country as a refuge for those in other countries who belong to liberation movements and who would most certainly be endangered if they could not find a refuge. This country has benefited substantially from the haven that it has offered to refugees from other countries in those circumstances. The difficulty is that, unless my noble friend can point to something which has so far escaped me, the Bill does not distinguish between those two situations.
If the answer is that the Attorney-General will have a controlling influence because his consent is required, two questions arise. The first was raised by the noble Lord, Lord Avebury. If one is going to take a course of action which could conceivably be in breach of the law, as indeed some of us would have done over the years had this provision been on the statute book, one needs to know in advance whether one is liable to be prosecuted and punished accordingly.
There is a second problem that has puzzled me. This may not be the point at which to raise it and, if so, I apologise. Subsection (6) of Clause 5 indicates that there can be situations in which the Home Secretary can provide that a prosecution should proceed notwithstanding the fact that it has not received the consent of the Attorney-General. Can my noble friend give an example of the kind of situation that is contemplated by that subsection? Surely it cannot be intended that the case has already been submitted to the Attorney-General and he has declined to consent. It cannot be a case of the Home Secretary overruling the Attorney-General. I assume that it must be a case where for some reason it is not practicable to submit it to the Attorney-General or to the Solicitor-General acting on his behalf. It is difficult to envisage a case where the prosecution is so urgent that it is not even possible to submit it to the Law Officers. I wonder whether my noble friend can assist us on that point. If he could let us off the hook, we do appreciate the difficulties at this stage of supporting an amendment, but we find a very real difficulty.
§ Lord Hylton
I am grateful to the noble Lord, Lord Avebury, for the way in which he introduced this 122 amendment. He pointed out very forcefully the dangers of overkill and unintended consequences. That is particularly important when a Bill of this nature has been introduced at 48 hours' notice, which prevents those of us who are not lawyers from seeking legal advice.
In the past few years I have become somewhat involved with the affairs of various parts of the former Soviet Union. I shall just mention Nagorno-Karabakh, Trans-Dneistria, the Chechens and Abkhasia. In most of those cases, members of the breakaway dissident separatist governments have been invited to the United Kingdom and all kinds of discussions have taken place with them here. Will that kind of thing be put at risk?
It makes me think that Amendment No. 31, standing in the name of the noble Earl, Lord Russell, is of particular importance. I hope that if nothing else is accepted, the Government might at least think of accepting it.
§ Lord Henley
Before the Minister responds, perhaps I may make a brief point in reply to the queries put forward by the noble Lord, Lord Stoddart of Swindon. He rightly asked, as I think I did in my opening remarks, together with other noble Lords during the debate, whether the provisions in Clauses 5, 6 and 7 would have been introduced, had we not had the atrocities in Omagh. Before the Minister responds, it would be helpful if I reminded him of what his right honourable friend the Prime Minister said yesterday:We are therefore taking the opportunity of Parliament's recall to put into law long-held plans to make a criminal offence of conspiracy to commit offences outside the UK".—[Official Report, Commons, 2/9/98; col. 695.]I think we can take it from that that the Government cannot claim that, without the atrocities at Omagh, they would have brought forward these provisions. I should be grateful for comments from the Minister in response to that.
§ Lord Williams of Mostyn
I am grateful for the courtesy that the noble Lord showed me in reading out the citation. Of course what the Prime Minister said is correct. It would be foolish to suggest otherwise. The fact is that we are not dealing with hypothetical situations; we are dealing with the recall of Parliament to deal with specific matters of grave public interest in Omagh. But we are also meeting, as a recalled Parliament, in the knowledge of three gross atrocities. Let us not forget that 10 times as many people were killed in the American embassy bombing as were killed in Omagh. A large number were killed in the other embassy, many, I say as a matter of fact, not as a matter of comment, had no connection with the United States. They were simply bystanders going to their work, going about their everyday occasions. The restaurant explosion in Cape Town left dead and injured.
It is idle to ask what would have happened if Omagh had never occurred, if Parliament had never been recalled, because one is dealing with hypotheses. I think the Prime Minister put it fairly, as the noble Lord read out.
123 There are a number of misconceptions which have been ventilated on this occasion and earlier. It is important to bear in mind what the state of the law is at present. I think the Home Secretary described it as something of a patchwork. The fact is that the suppression of terrorism Act makes it an offence to conspire within our jurisdiction in respect of crimes in other jurisdictions. However, they are limited—on quite what basis of reason or jurisprudence I have never been able to understand—to those countries in the Council of Europe, India and the United States; not Pakistan, not other Commonwealth countries with which we have had long and friendly relations. It may or may not be a palatable fact but it is a fact that these offences are at present offences in the terrorism context in respect of those countries alone.
The conspiracy legislation is not limited to terrorism; it is directed to crimes which are subject to the dual criminality test. That is: the acts, if put into effect, would be crimes within our jurisdiction and also crimes within the foreign country's jurisdiction.
The former Attorney-General asked me whether I thought it was satisfactory that conduct should be unlawful but not subject to the sanction of the law without the consent of the Attorney-General. That obtains in this context. It also obtains in other contexts, as the noble and learned Lord, Lord Mayhew, and my noble and learned friend Lord Archer of Sandwell know perfectly well. For example, the Attorney, or the Solicitor in his place, is required to sanction a prosecution under the prevention of corruption Acts. That is a similar position. If the fiat is not given, although the conduct is properly described as criminal, it is not subject to the sanction of the criminal law. So this is by no means an unusual situation.
§ 11.15 p.m.
§ Lord Mayhew of Twysden
I am grateful to the Minister for giving way. Surely there is a very marked distinction in character between those two scenarios? In the first scenario the law says thou shalt not act corruptly—and then as a safeguard there is put in the need for the consent of the Attorney. In this question, what is in issue is whether the law should say that if you act as the Bill stipulates you are acting criminally. That is what I think many of us find great difficulty in accepting in the instances put forward by the two noble Lords who have spoken.
§ Lord Williams of Mostyn
Criminally and unlawfully are coterminous in this particular context. There is no difference in the quality of the analysis between the prevention of corruption situation and the conspiracy situation.
§ Lord Archer of Sandwell
I apologise for interrupting my noble friend again. I am grateful to him for giving way. Does he accept that corruption is something which we all condemn and want to discourage? Some of the activities referred to by the noble Lord, Lord Avebury, are matters which we would approve and want to encourage. If the only safeguard 124 against their being prosecuted is the requirement of the Attorney-General's consent then that is a very different situation.
§ Lord Williams of Mostyn
It is a different situation but it does not bear on the question put to me by the noble and learned Lord, Lord Mayhew of Twysden, which I have answered. I will answer the question but it is entirely different to the question of legal analysis which was put to me and which I answered a moment ago.
My noble friend Lord Archer of Sandwell is saying that we support this sort of activity and therefore we ought to view it with sympathy. We need to get firmly in our minds what sort of activity we are talking about. Are we talking about incitement? No. Incitement was contained in a Private Member's Bill which was introduced in another place and which was supported by the present Official Opposition. Incitement was included. It is not a freak or an accident that we have deleted it from the proposals in this Bill.
It is not an offence—nor will it be if this Bill becomes law—to sympathise with political movements abroad. It would not be an offence to support them financially. It is not an offence to speak in their favour in this country or to speak encouragingly of them in this country. The only offence is conspiracy, which has the following characteristics in this context. It has to have the dual criminality, which I have identified; it has to have the Attorney General's consent.
The noble and learned Lord, Lord Mayhew, said earlier that the Attorney-General is the guardian of the public interest. I entirely accept that. That is why we have written in this particular sanction. Again, this is not a safeguard which was in the Private Member's Bill which failed for technical reasons in another place. I say again—not in any partisan way, I hope—that that was supported by the Official Opposition. We thought it right to put this sanction in.
The question is: is it to be an offence in this country to conspire to commit offences in a foreign jurisdiction which, if the acts were to be put into effect in this country, would be crimes in this country? That is the question. To take an illustration almost at random, simply because another country has a regime with which we conscientiously disagree, is it right to allow people in this country to conspire, for instance, to bomb a US or British embassy in a country when we do not agree with the internal politics of its regime?
§ The Earl of Onslow
Presumably, it would be right to do that thing if you are the Soviet occupying forces in Afghanistan and you are supporting Afghan rebels who want to destroy or destabilise that regime. Those people will get support to bomb and to commit guerilla activities because we happen to approve of what they are doing. But if you are doing it against the Americans in Dar es Salaam or Kenya, perfectly reasonably we think that the Americans are the good guys. It seems to 125 me that what we are doing is making it criminal to do it against the bad guys as well as criminal to do it against the good guys. That cannot be right.
§ Lord Williams of Mostyn
I do not subscribe to that view of law or legalities. Perhaps I may give an obvious example in reply to the noble Earl. If I am charged with murder, the law rightly does not care tuppence whether I have killed a rapist or killed the vicar. It is murder. With regard to the path identified by the noble Earl—I know he was using shorthand and putting it rather plainly and bluntly, as sometimes he does—I do not believe that conspiracy to kill the good guys is justifiable or not justifiable as opposed to conspiracy to kill the bad guys. If one wants to go that way, we need to recognise that what we are talking about is not law but the anarchy of the jungle.
I need to stress that this is not limited to terrorism. It is not confined in the way that the noble Lord, Lord Monson, directed us to in Amendment No. 31 in the name of the noble Earl, Lord Russell. In fact, as I understand it—I am subject to correction—I believe that he will not be present to move his amendment. In fact, I ought to have said earlier that, so far as I can see, within this group are amendments starting at Amendment No. 11 and finishing at Amendment No. 60, though not every amendment on the way from Amendment No. 11 to Amendment No. 60 will necessarily be spoken to. However, I think I can develop my theme, if it is agreeable to the Committee, in the general way that the noble Lord, Lord Avebury, developed his.
My noble and learned friend Lord Archer of Sandwell spoke of Amnesty. Supporting Amnesty will not be caught by these new offences. When I paid my subscription I never understood that Amnesty was engaged in conspiracies to cause explosions or violent acts abroad. It was concerned with legitimate activities which we all recognise and honour and which were specified by the noble Lord and others; that is to say, giving assistance and succour, to take the example of the noble Lord, Lord Elton, in various parts of sub-Saharan Africa where people are being persecuted. But providing assistance to them, as the noble Baroness, Lady Cox, has nobly done, will not be caught by these conspiracy laws because she is not doing anything unlawful.
§ Lord Archer of Sandwell
Purely factually, Amnesty has had very great difficulties internally over the question of whether it should support people who have adopted violent methods of bringing about what they have in mind.
§ Lord Williams of Mostyn
That is a different proposition again from the offence of conspiring to carry out criminal activities in a foreign jurisdiction which would be criminal acts if they were carried out in this jurisdiction. Support by way of fund raising, by way of encouragement, by way of public speeches and by way of propaganda—anything short of conspiracy to commit crime—by Amnesty or any other organisation, whether we like it, whether we support it, or whether we do not, will not be caught by these provisions. I do not accept 126 the suggestion from my noble friend Lord Stoddart of Swindon that this is in any way racist. It is not. I do not think that a fair review of it could come to that conclusion, stressing as I do that we are not simply dealing with—
§ Lord Williams of Mostyn
Perhaps I may just finish my sentence. If it is worth finishing at all, I may as well finish it now. Of course, it may not be worth finishing. It is not limited to conspiracy to commit terrorism. It includes conspiracy to carry on drug trafficking, which is another great scar on international society. It includes a conspiracy to carry out acts of paedophilia and conspiracy relating to money laundering. It is not limited to terrorism. I feel like a very old lag and I have just finished my sentence. I give way to the noble Baroness.
§ Baroness Ludford
I am grateful to the Minister for giving way. I am sorry to carry on the interruption. Can the noble Lord help us a little further? I am sure that he will accept that in this area many Members of the Committee are having great difficulty and are in a dilemma. The Minister does not appear to accept that there is a difficulty. Many of us find ourselves in an Alice in Wonderland situation. This is a problematic area which the Minister does not appear to accept.
Perhaps I may take the cliché example of Hitler, referred to earlier in the debate. Is the Minister saying that in 1942, for instance, we would not have supported those who would have tried to kill by a bomb an elected head of government? It is too late for me to remember whether Hitler was also the elected head of state. That would have been the assassination of a head of government, which, presumably, would have been a crime here. It is the problem of the duality of the crime where some of us are unable to follow the Minister in saying that there is no problem, because it would have to have been a crime here. It would have been a crime in Germany and here to assassinate a head of government. Is the noble Lord really saying that we would not have supported those who wanted to assassinate Hitler?
§ Lord Williams of Mostyn
I am sorry if the noble Baroness believes that I consider that there is no problem. My wife is Indian. Her parents lived in South Africa throughout the whole of the apartheid regime. I am not entirely sure that the noble Baroness is well founded in suggesting to me that I do not know the problems in those circumstances or that there might be difficulties about conspiracy legislation. I am not really saying that it would have been prosecuted if an attempt, successful or otherwise, had been carried out in 1942 to murder the head of a state with which we were are war. If that is the example put to me I simply repudiate it. The noble Lord, Lord Holme, was about to ask me to give way.
§ Lord Holme of Cheltenham
I do not believe that anyone in this House would impugn the Minister's 127 motivation. We know of his great commitment to these matters and to getting them right. That is one of the reasons that we are pursuing him. There is a gap in the logic somewhere, not on the larger issues raised by the noble and learned Lord, Lord Archer, and by my noble friend Lord Avebury, but on the rather narrower question which has upset Members of the Committee; namely, why this element is grafted on to Northern Ireland emergency legislation.
I believe the gap in the logic is that under some pressure from the noble Lord, Lord Henley, who quoted the Prime Minister, the noble Lord, Lord Williams, said that it was a timely response—I am paraphrasing him—to the bombings of the American embassies in Kenya and Dar es Salaam and to the bombing in Cape Town, which were all terrorist acts. The implication of what he said is that the timeliness of this legislation and the reason it has to be processed now, rather than in an orderly way when Parliament resumes, is because a response is required to terrorist acts which have outraged us all.
There is logic in that but, if that is so, why is the legislation so widely phrased in order to cover other criminal offences? My noble friend Lord Russell is not here. Why is the Minister not more sympathetic to the point made by the noble Lords, Lord Monson and Lord Hylton, of taking a narrower terrorist definition of the issue to be dealt with?
§ Lord Williams of Mostyn
I do not believe that the alternatives put forward by the noble Earl, Lord Russell, are right. He used a narrower range of offences, but they are not the only serious offences with which we need to deal. I have said several times that to concentrate only on terrorism in this context is a mistake. The noble Earl, Lord Russell, had an alternative approach. I promised the House that I would deal with it. The noble Earl wants a further alternative to be included which is that a conspiracy to cause in a country which did not have free and fair elections an explosion which might well kill people would not be subject to the sanction of the criminal law. I cannot accept that either, for the reasons which I hope I have set out. The fact is that we are in a situation which everyone knows and recognises. It is not something which has just been plucked off the back burner; it has been discussed for a long time. It was discussed at length in another place on the occasion that I have already mentioned.
§ 11.30 p.m.
§ Lord Marlesford
Before the noble Lord leaves those points, he gave a striking example a moment ago that the law makes no distinction between the killing of the rapist and the vicar. My understanding was that the legislation as drafted contains certain safeguards against its inappropriate use by requiring the Attorney-General to consent to prosecutions. If the criterion is purely and simply whether the law is being broken, using the 128 analogy of the vicar and the rapist, I am not clear why the Attorney has any role at all and whether he would ever get involved.
§ Lord Williams of Mostyn
I am told that Attorneys sometimes get things wrong, though I do not refer to the present Attorney. The fact is that the Attorney has to give a fiat in circumstances where there may be an overriding public interest which is not limited simply to the question of whether there is evidence to prove that a crime has been committed. That is quite frequently used in corruption cases. I give examples at random from my own experience. If the proposed defendant is rather elderly, sometimes the Attorney will not give the fiat. That is the wider public interest question. May I deal with—
§ Lord Marlesford
The noble Lord has not quite answered the point. The examples given by the noble Lord, Lord Avebury, did not concern corruption. They basically concerned giving assistance, perhaps in the form of a conspiracy, to help dissident and opposition movements in certain countries where we would in general believe such movements were a good thing. I thought the implication of the safeguard was that in those cases the Attorney would prevent a prosecution taking place. But, as we are talking about a criminal offence in the example of the murder, is the noble Lord saying that in that case in theory at least the Attorney could suggest that to kill the rapist is justified because he is a rapist, and the murderer should not be prosecuted?
§ Lord Williams of Mostyn
However great the burdens upon Attorneys, they do not include giving fiats to prosecute murders. To take up the point of the noble Lord, Lord Marlesford—I use his phrase—giving support to people in foreign jurisdictions who are fighting for their rights and liberties cannot be an offence under this proposed legislation. You have to conspire to commit crimes which are crimes in a foreign jurisdiction and crimes here. If I want to subscribe to any worthy cause here, that is no crime. If I want to send money to somewhere in sub-Saharan Africa, that is no crime and I cannot be convicted of conspiracy.
§ Lord Clinton-Davis
If I were to express the attitude that the only way in which a particular regime can be brought down is by violence because there is no other possible route, would I not be participating or compounding and encouraging a conspiracy to commit the kind of acts of violence that are set out in this Bill in Clause 5? Would any sanctions thereby arise? I am thinking in terms of dissident opinion, which is generally viewed favourably in this country. In such a situation, could I rely more or less on the Attorney General exercising his fiat against any prosecution?
§ Lord Williams of Mostyn
No, because one does not get to that stage. To encourage other persons to conspire is not itself a conspiracy. To be a party to a conspiracy, you have to have at least one other person; you have to have an agreement between the two of you that unlawful 129 acts will be carried out with the intention that those unlawful acts shall be carried out. That is conspiracy. It is not just incitement, it is not sending faxes, it is not even saying things which quite a lot of us in this country find deeply distasteful, such as some people crowing, maybe by fax, but boasting that it was a very good idea that those people were murdered at the American Embassies. Their actions may be distasteful, as they are to most if not all of us, but they are not participation in a conspiracy.
Perhaps I may deal with the case of the Home Secretary and the Attorney-General, just to nail it once and for all. It has been raised and, despite the fact that it has been shot several times, it seems to have more lives than a cat. The Secretary of State for the Home Department will not be able to overrule the Attorney-General. The point of putting the saver in the Bill which has drawn so much attention is simply for the sake of bringing this legislation into consistence and consonance with the present situation.
Perhaps I may give an example. Because of the legislation that was passed not too long ago—and the noble Lord, Lord Hylton, was very much in support of this—it is an offence in this country to commit acts—I summarise—of paedophilia in Thailand, for instance. That does not require the sanction of the Attorney-General for a prosecution. Therefore, when we looked at this Bill and saw that conspiracy might include conspiracy to commit paedophile acts in Thailand, it would be rather absurd to require the sanction of the Attorney-General for that class of activity when it is not required in the basic legislation. Therefore, the power that is given here is not for the Home Secretary to go to the Attorney and say, "You have got to prosecute this set of conspirators", or, "You must not prosecute those".
It is very simple indeed. Despite all the hackles that have been raised and the suspicions wrongly aroused, it is simply that the Home Secretary may schedule, as it were, if that is the word I am looking for, certain categories of offence which do not require the Attorney's fiat. That is the long, the short, the beginning and the end of it. I have dealt with it now because, although I know that there are subsequent amendments, it has been raised in this context.
§ The Earl of Onslow
Would the noble Lord explain just one more thing to me, going back to illegalities abroad? Let us assume, for the sake of argument, that there is a group of Burmese who wish to act in rebellion against the Burmese military government—a government which is acknowledged by all to be a particularly nasty one and one which has overthrown the legitimate government of that country. Let us assume that these people decide that they wish to blow up the railway bridge across the Irrawaddy, or some such act which we would undoubtedly regard as terrorism. Are we honestly going to prosecute people who are in rebellion against a foul military regime of which we strongly disapprove? That I find very difficult to stomach.
§ Lord Williams of Mostyn
That is one aspect, and it is an example which I can recognise. However, there 130 might be another example which needs to be recognised also. I shall turn the noble Earl's rhetorical question round, if I may. Are we really saying that if two or more people conspire in this country to blow up a primary school, that would be something that should be outside the sanction of the criminal law?
The true answer to the noble Lord's question is the position of the Attorney. He has to judge whether it is in the public interest, and the public interest has many different facets as to whether the action should be prosecuted or not. However, let us not forget that the conspiracy to put the bomb on the railway line or to blow up the bridge may well cause the deaths of countless perfectly innocent people. So there are quite a lot of rather more complicated aspects to this problem than is sometimes proposed by the bald question.
§ Lord Mayhew of Twysden
I have listened with enormous enjoyment and admiration to the most skilful defence put up by the noble and learned Lord, Lord Williams of Mostyn. It is not entirely out of self-indulgence and the desire to prolong this enjoyable exercise that I rise again and risk wearying noble Lords for a minute or two more.
The noble Lord, Lord Holme, was right to remind us that this interesting discussion arises in the context of Clauses 5 and the remainder being tacked on to what arises directly from Omagh. That is why we are talking about it.
The second point to remember is that the law which is contained in Clauses 5 and the remainder is new law. The noble Lord, Lord Williams of Mostyn, correctly says that the present law about criminality, of conspiring in this country to commit offences overseas, is a patchwork. He rightly says that it is difficult to understand the rationale of that patchwork. But what do these provisions do? They make any criminal offence overseas which is a criminal offence in this country eligible for the provisions of these clauses. If you conspire, if you do something to help along such an offence—I accept the definition of conspiracy given by the noble Lord—you are guilty of a criminal act.
I return to the point I made a few minutes ago. It is very much open to question—in fact I think that it is quite wrong—that you should be told, "In all the circumstances you have been guilty of a criminal act, and it rests with the discretion of the Attorney alone whether or not you shall be prosecuted for it". The noble Lord, Lord Williams of Mostyn, had an arguable defence to some of the illustrations given. I thought possibly it was the case in relation to the scenario posed by the noble Earl, Lord Onslow. If you blow up a bridge you can cause many people to die.
Let me suggest another scenario. Let me suggest that we are dealing with a regime which beyond all question is oppressive and disgusting. Those regimes depend upon money to survive. Let us suppose that there is a conspiracy to steal their money, to deprive them by unlawful means of their financial resources. Many of us feel that if we are to be told that the law of this country is to be enlarged so as to make criminal a conspiracy in that context, we need to think about it for much longer.
131 We do not want to have that extension to our law tacked on to what I might call the Omagh-derived provisions of the Bill. We want to have more thought given to it.
The noble Lord said that that is the anarchy of the jungle: it is not the rule of law. I did not think that that was a convincing answer to the point raised by my noble friend Lord Marlesford who said that if it were the law of the jungle how is it that the Attorney-General is permitted to turn a blind eye to it. I believe that there is here serious material which justifies the time we have been taking on it. For my part, I am not satisfied that there has been a proper explanation or justification for tacking on to the Omagh-derived provisions of the Bill an extension of the law of this country which is quite so sweeping as that, with the harm as it were mitigated only by the fact that the Attorney-General has the say-so. Frankly, although I listened with admiration to what the noble Lord, Lord Williams of Mostyn, said about how he would operate, that is not what the Bill states.
On page 8 of the Bill the text states that,The Secretary of State may by order provide that subsection (5) above shall not apply, or shall not apply to any case of a description specified in the order".On the face of it that means that the Secretary of State can bring forward an order, albeit for affirmative resolution, saying, "In the case of that awful regime in the south of Sudan, the Attorney-General shall not be required to give his consent". It may be that the intention is as the noble and learned Lord has described it, but that is not what the Bill says. It is much too broad for safety, and it gives the Secretary of State power to use his enormous majority down the corridor to override the wishes, the discretion of the Attorney-General. I do not doubt for a moment that that is not what is intended, but it all goes to show that this legislation is rushed and we ought not to be doing it in this way.
For my part, if the noble Lord, Lord Avebury, proposes to seek the opinion of the Committee I shall be with him.
§ 11.45 p.m.
§ Lord Thomas of Gresford
Perhaps I might be permitted to clarify my own mind about the intention here and to get away from explosions, revolution and so on, and turn to the practical problems that might arise.
I take it that if there was an agreement within the United Kingdom, for example, to export drugs from Thailand to the United States, that would be caught by these provisions and an indictment could be brought against the two people who agreed in this country, under these provisions for conspiracy, although the offence of exporting drugs from Thailand to the United States had nothing at all to do with this country.
Supposing it were to be said that two people conspired within the United Kingdom criminally to libel somebody in the government of Singapore, a friendly Commonwealth country which is a little sensitive to being criminally libelled from time to time. Criminal libel is an offence in this country. It is rarely brought; it is rarely charged. Saying things about politicians in this 132 country is rather more acceptable than it is in Singapore. Surely, under the provisions of this Bill it would be possible for an indictment to be framed against two people agreeing criminally to libel the Prime Minister of Singapore and to produce them at the Old Bailey for a trial before a jury, subject only to the consent of the Attorney-General. Am I right in thinking that?
§ Lord Williams of Mostyn
I cannot imagine any circumstances in which an Attorney-General would give a fiat in those circumstances, not least because criminal libel has virtually disappeared in this jurisdiction. It has not been charged for years, and the last time it was used, not very successfully, was by the late, revered Sir James Goldsmith.
I go back to the points which were made by the noble and learned Lord, Lord Mayhew. The fact is that the consequences that he speaks of are exactly the consequences that one finds in the jurisdiction north of the Border, because all serious crime there is subject to the say-so of the Lord Advocate, acting as defender of the public interest, in the same way as the Attorney-General does here.
It is true that we have spent a little time on this matter. Of course, time always rushes by when one is having fun. This is a legitimate extension of the powers available in this country. We have included the important sanction of the Attorney-General's consent, which was absent from the Bill in the other place; we have included the dual criminality; we have not included incitement, encouragement or funding. It is conspiracy to commit crime which will be caught. I recognise and sympathise with the motives of the noble Lord, Lord Avebury, because he does not want political refugees or political dissent to be stifled. People will be able to dissent as long as they like. They will not be caught by any extension of the conspiracy laws, unless they are conspiring, in a way that I have tried to define, to commit criminal acts.
§ Lord Elton
I apologise for asking the noble Lord to consider perhaps the fifteenth hypothetical case, but this seems a more probable one to me and a much nicer one to decide. Where there is an oppressive regime, such as in Burma, and in other countries that one could name, and there is a group of people who have been arrested and are about to be tried on what is bound to be a show trial, and an unjust trial at that, it is within the power of people in this country to provide airline tickets, communications, and so forth, to spirit them out of that country. They will be conspiring to defeat the course of justice in that country, which is a criminal act in this country. Is the noble Lord saying that that category of activity will be criminal but may not be proceeded against?
Secondly—the Minister will not want me to rise to my feet again—is he going to give us any alternative between accepting this amendment and wrecking a large part of the Bill and some more detailed way of controlling what happens? He is facing noble Lords on his own side as well as us with a very difficult decision in a few minutes if he is simply going to say, "My case rests." In addition to answering my question about the 133 hypothetical refugees assisted from this country, I hope that the Minister will give a little thought to the tactics of how to get out of this position.
§ Lord Williams of Mostyn
Certainly, it is possible that assisting people to flee from justice in another country would be capable of being prosecuted, but that is the point of the Attorney-General. The hypothesis which the noble Lord fairly put—he put both the attractive points from my point of view as well as the attractive points from his point of view—is that the Attorney-General would be entitled, in the exercise of his duties, to ask, "What sort of trial were these people facing? Did they have any legal court system that could reasonably be regarded as fair?" It seems to me that that is the answer to that question.
I recognise some of the unhappiness. Although I am grateful for the noble Lord's invitation, we must bear in mind what my noble friend Lord Dubs said earlier. This is to be subject to very close review. First, the Home Secretary has announced his general review of anti-terrorism provisions. That has been the main concern tonight. It is going to be the subject of consultation. Everyone who has alluded to the topic is firmly convinced that the present "patchwork"—I am grateful for the support of my description of it in those terms from the noble and learned Lord, Lord Mayhew—is not satisfactory and is not suitable for modern times when terrorism is internationalised, as is so much other serious crime.
That is the review. I hope that it is not without significance and I hope that Members of the Committee will bear in mind that when an amendment was tabled in another place—it may have been an Opposition amendment and it may have been under the signature of Mr. Hague; I am not sure—the Home Secretary attached his signature to that amendment which brought about new Clause 8. I am grateful for the noble Lord, Lord Cope, supporting me in my understanding of that by nodding. That clause requires the Home Secretary to lay before both Houses of Parliament the report specified by my noble friend Lord Dubs on the working of the Bill after it becomes an Act.
I hope that I have recognised the concerns that have troubled a number of noble Lords. I am aware that I have not given perfect satisfaction. I cannot, because we have different views. However, I commend to the Committee what is now agreed to be a control mechanism, which is an annual report. That means that in not more than 12 months we shall have a report on how the Bill has worked in practice once it has become law. That is extremely important. I ask your Lordships to bear it in mind in coming to a conclusion on whether or not to damage this Bill.
§ Lord Holme of Cheltenham
Before the noble Lord sits down, may I raise one point to clarify what he has just said? He explained forcefully that this is not an anti-terrorist measure but that these are a wide range of criminal offences in dual jurisdictions. However, in the earlier part of his summing up, he said that it would be dealt with as part of the review of terrorist legislation, 134 quite apart from the annual review of this particular Act. Can I get absolutely clear that it will form part of the series of reviews of anti-terrorist legislation?
§ Lord Williams of Mostyn
Yes, I tried to make it clear. I focused on that because I understood that the noble Lord, Lord Avebury, was deeply concerned in that context. He did not—and I understand the reasons—range wider than the questions of political dissent, political activity which might or might not fall within the description of terrorism.
§ Lord Stoddart of Swindon
Before my noble friend sits down, bearing in mind the question which he was just asked by the noble Lord, Lord Elton, what can he give the Committee to prevent a vote being carried against the Government?
Under normal circumstances, if we were in Committee and we had had a debate of an hour and 16 minutes, with some extremely high-powered discussion from extremely high-powered people, my noble friend would have been able to say, "I have listened to what everybody has said. Some very good points have been made. I shall want to consider what has been said between now and Report stage, after having consultation with noble Lords and further thoughts about the whole matter". Because of this procedure, he is denied that and so is the House denied that. That is why I and many other people are concerned about the way in which this legislation has been introduced in an inappropriate way in an inappropriate Bill.
§ Lord Williams of Mostyn
I am offering a good deal more than the words which I am guilty of having used in the past; namely, that I will take it away and think about it. What I am doing is much more positive and precise than that. I say "what I am doing" but in fact it is what the Home Secretary did in joining yesterday with Mr. Hague in another place. We are specifically binding ourselves to the discipline of, not more than 12 months away, and in successive years, putting a report to both Houses of Parliament on the workings of the Bill. I suggest, although cosmetically it may not sound quite as much sugaring of the pill, that that is a good deal more substantial a benefit—I use that word neutrally and without wanting to cause offence—than simply saying, "I will take it away and have a word with the Home Secretary about it". In the past some of your Lordships, quite unfairly, have said, "Well, you have only gone away to think about it. You may come back with exactly the same solution".
We have a discipline and a structure in the Bill. I have attempted to deal with every point that has been put to me and I cannot sensibly repeat what I have already said in answer to similar points which are being made.
§ Lord Elton
The noble Lord has gently and with enormous courtesy led us steadily towards where he wants us to go. I do not believe he has quite got there because he has now said that Parliament will consider this legislation in 12 months' time. But if the legislation proves to be defective or unsatisfactory, as is very likely given the circumstances in which it has been forged— 135 and I use the term in its non-pejorative sense—there is no guarantee of parliamentary time being given to change it. Such a guarantee would exist were the Minister to accept Amendment No. 50. I do not know whether he wishes to address that now or later, but that would be a great reassurance to many of us.
§ Lord Williams of Mostyn
I cannot temporise. I cannot give way on Amendment No. 50. I hope I have made my position as plain as I possibly can. Of course, I cannot guarantee what parliamentary time will be available in 12 months' time. But it is a significant earnest, I believe, of the coincidence of view between the Leader of the Opposition and the Home Secretary in another place.
§ Lord Avebury
I am afraid that the concession which the noble Lord has just reiterated—that we shall have a review in a year—is not as good as the solution to which the noble Lord, Lord Stoddart of Swindon, referred. If there were a Report stage, we should have an opportunity to take action to correct any of the defects in the legislation, whereas if after a year the review published by the Government discloses that there are material defects, then we have no guarantee of when parliamentary time will be found to put them right.
We are in a very difficult situation. It is clear to the noble Lord, Lord Williams, and to the whole Chamber that a large number of Members—perhaps a majority, I do not know—are seriously unhappy about the provisions that we are discussing. They are unhappy both about the way in which they have been introduced, sneakily tacked onto the provisions dealing with Northern Ireland terrorism, and also about the substance of the proposals, on which, I respectfully suggest, the noble Lord has not satisfied the Committee.
I do not believe that the noble Lord has addressed the question whether or not there are just liberation movements and armed struggles against repressive governments and whether it is legitimate (using that term in a moral and not legal sense) for people in this country to support them not only with words but even money. I believe that the noble Lord is wrong on the latter point because legislation exists elsewhere that prohibits the sending of money for illegal purposes overseas. There are people in this country who may be exiles from dictatorial regimes, as in the example of South Africa or Iraq, which the noble Lord did not address. I said that there were two organisations in Northern Iraq with which we had constant and regular dealings. They are separate from the Iraqi state and no doubt are committing sedition, if not other unlawful acts in Iraqi terms. They would also be unlawful if they were committed in this country. Having given that example, the noble Lord did not reply. That is a very good illustration of the dilemma that we face. If we continued to support those movements and actively encouraged them, even in taking armed action against their own governments, as we would like to see in the case of Iraq—nothing would give us greater pleasure than to see a rebellion that unseated Saddam Hussein so that a democratic system could be installed in that country— 136 no doubt the acts required for that purpose would be criminal under Iraqi law, as they would be under ours, and would be caught by the Bill.
We will not solve that this evening. As frequently happens in politics, there is no solution. We cannot take the debate any further in this Chamber. We are in a dead end. If the amendments in my name were passed and the Bill had to go back to the Commons, the Government would simply strike them out in the other place and they would return here tomorrow afternoon. The way in which this Bill has been introduced means that effectively we are estopped from exercising our rightful duty to amend legislation.
In those circumstances, with the very greatest reluctance, especially in view of the very powerful speeches made in this debate, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Molyneaux of Killead moved Amendment No.12:
§ The noble Lord said: I shall be mercifully brief at this time of the night. I fail to see any good reason for using the terminology of the very useful Northern Ireland (Sentences) Act which is designed for very short-term, limited use. What good reason can there be for departing from the much more solid Northern Ireland (Emergency Provisions) Act 1996 than one of those ships that pass in the night?
§ I deal briefly with the linked amendments. During Second Reading your Lordships' House expressed unease over executive action by Ministers. My suggestion in those amendments is that the Secretary of State should be relieved of any such embarrassment and the responsibility should be placed on an assistant chief constable or a rank above. I beg to move.
§ Lord Cope of Berkeley
I rise to support Amendments Nos. 14 and 22 in this group. The clause provides for what are to be specified organisations and hence to be covered by the provisions of the clause in relation to policemen giving evidence. Clause 1, new Section 2B(1)(a) and (b) deal with organisations specified under the sentences Act, but new Section 2B(2) and the equivalent in the later clause covered by Amendment No. 22 provide that,the Secretary of State may by order specify an organisation which is not specified under … the Northern Ireland (Sentences) Act".So the special provisions in relation to policemen giving evidence shall apply to that organisation even though the sentences Act does not apply.
It seems very odd to provide that there shall be an organisation specified under subsection (2) but not specified under the sentences Act—that is to say, an organisation of which a member can be locked up on the evidence of a policeman in the way we have discussed in some detail but still providing that the members of that organisation be let out of prison under the other legislation. On the one hand we are locking 137 them up for being members, and on the other we are letting them out under the sentences Bill because an organisation is not specified for that purpose. It is very odd to have an organisation in that position as a result of being specified only by subsection (2) and not by subsection (1).
§ Lord Dubs
The primary intention of Amendments Nos. 12, 13, 14, 15, 21, 22 and 23 is to move away from the Bill's present aim of targeting proscribed organisations that are not maintaining a complete ceasefire. Instead, all proscribed organisations would be caught. We have made it very clear that such an approach is not the policy behind the Bill. It is central to what we are trying to achieve—isolation of rejectionist splinter groups—for the Secretary of State to be able to make the distinction and identify those organisations that are not maintaining a ceasefire.
Amendments Nos. 47 and 52 seek to replace the reference to the Secretary of State's belief with a reference to the oral evidence of a police officer of or above the rank of assistant chief constable.
First, I believe that the amendments are seriously flawed. They refer to oral evidence being given, but not in the context of any court proceedings. To whom is the assistant chief constable giving evidence? If it is the Secretary of State, then she would not be bound by that evidence. She would have to decide whether she believed it. If she accepted the evidence, she would be the only authority who could bring forward an order specifying those organisations. I can think of no precedent for a Secretary of State having to act without discretion on the evidence of a senior police officer. I suggest that it would be a dangerous precedent to set. I urge the Committee to reject the amendments for the reasons I have given.
§ Lord Cope of Berkeley
With respect, the Minister has not dealt with Amendments Nos. 14 and 22 to which I directed attention. Amendment No. 14 would remove lines 15 to 29 on page 3; that is to say, it deletes the provision for the Secretary of State to specify an organisation for the purposes of police evidence which is not specified under the sentences Act. What organisation will be specified for the purposes of police superintendents giving evidence which is not to be specified under the sentences Act, under which prisoners are to be let out, even though its members can be prosecuted under this new accelerated procedure—assuming that it is effective, which after the Second Reading debate we are all allowed to doubt?
§ Lord Molyneaux of Killead
I cannot claim to be satisfied with the explanation and response from the Minister. If this were a normal debate, where there would be further stages for scrutiny and perhaps friendly and fruitful negotiation, it might be worth pursuing this matter further. But, as the previous debate and its termination have shown, we are powerless to do 138 anything by way of improvement. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Cope of Berkeley moved Amendment No. 13:
§ Page 3, line 12, leave out from ("below") to end of line 14.
§ The noble Lord said: I am sorry that the noble Lord, Lord Molyneaux, deprived me of the opportunity of a reply to Amendment No. 14, but there we are. Amendment No. 13 is directed to the same clause. Under new Section 2B(1)(a) and (b) the clause provides that organisations whose members are subjected to the new provisions about police superintendents' evidence are to be those specified under the sentences Act which are also proscribed for the purposes of the main Act. It seems odd that there should be the possibility of an organisation being specified under the sentences Act but not proscribed under the PTA. The PTA states that it is illegal to belong to an organisation; the sentences Act decides whether or not people are let out. There are some odd overlaps between these various categories into which terrorist organisations can fall, and this is one example. Is there any realistic possibility of an organisation being specified under the sentences Act, which would mean its prisoners not being allowed out, but not being proscribed for the purposes of the prevention of terrorism Act? If there is no such possibility, paragraph (b) is not required and Amendment No. 13 takes it out. I beg to move.
§ Lord Dubs
Perhaps I may help the noble Lord. The effect of the amendment would be to delete the reference to a proscribed organisation for the purposes of statements and inferences under Clause 1. That would mean that only specified organisations were covered. However, some organisations are proscribed in Northern Ireland, but not in the rest of the United Kingdom—for example, the LVF.
It is for that reason that the draftsman has chosen to separate out the reference to a specified organisation and a proscribed organisation in this part of Clause 1. Without it, membership of the LVF would be an offence under the Act in Great Britain, but under the PTA it is not a proscribed organisation.
§ Lord Cope of Berkeley
If the LVF is not proscribed for the purposes of the PTA, then presumably it will not be covered at all by this. New Section 2B(1)(a) states that "it is specified" under the sentences Act, which the LVF is, and it is also an organisation which is proscribed. I believe the noble Lord said that the LVF was not proscribed for that purpose in which case it would not be covered by the clauses about a superintendent giving evidence.
As I have referred to the LVF, I wonder whether the Minister will take the opportunity to respond to the question I put earlier during the Second Reading. He 139 was not able to respond then. It concerned whether the organisation had announced that it would decommission and, if so, what response the Government had given.
§ Lord Cope of Berkeley
In that case, what about the other point? If the LVF is not proscribed under the main Act, will it be covered by the parts of the Bill which deal with superintendents giving evidence?
§ Lord Dubs
I am trying to think my way through that. Possibly yes. Perhaps I may repeat what I said. Some organisations are proscribed in Northern Ireland but not in the rest of the United Kingdom. The LVF is an obvious example. The LVF in Great Britain would be covered were paragraph (b) not in the Bill. The LVF is proscribed under the EPA in Northern Ireland. We must distinguish between the situation in Great Britain and the situation in Northern Ireland. I hope that the noble Lord understands that—or would he like me to repeat it?
§ 12.15 a.m.
§ Lord Cope of Berkeley
I thought the Minister repeated what he said earlier, in which case, as far as Great Britain is concerned, the LVF will not be subject to the new provisions about superintendents giving evidence because it is not proscribed under the PTA. For the LVF to be subject to the provisions it would need to be both specified under the Sentences Act and proscribed under the PTA. Both are required. If the LVF is not proscribed under the PTA then its members will not have the—I was going to say advantage—disadvantage of being subjected to a superintendent's evidence should the prosecution take place in Great Britain. I accept that under the later provisions they will be covered as far as prosecutions in Northern Ireland are concerned.
§ Lord Cope of Berkeley
I am glad to have teased out the meaning. It seems an extremely odd situation that the LVF should be in a better position in Great Britain than it is in Northern Ireland under this legislation. If that is what the Government intend, I shall certainly not push the matter at this stage. The Government seem to have got themselves into a very odd position indeed by means of this Bill. As the noble Lord, Lord Stoddart, would have pointed out were he still in the Chamber, the position cannot be rectified because of the unduly precipitous nature of the discussion of the Bill. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.140
§ [Amendments Nos. 14 and 15 not moved.]
§ Lord Cope of Berkeley moved Amendment No. 16:
Page 3, leave out lines 24 and 25 and insert—
("(b) is not complying with the Belfast Agreement as set out in Cmd 3883").
§ The noble Lord said: I beg to move Amendment No. 16. The noble Lord, Lord Dubs, and I have debated this issue a great deal on previous occasions. I will not dwell on it at the moment but just explain what the amendment does.
The Secretary of State has the ability under these particular provisions of the Bill to specify an organisation for the purposes of this Bill which:
is concerned in terrorism connected with the affairs of Northern Ireland, or in promoting or encouraging it, and
—and this is where my amendment is directed—
has not established or is not maintaining a complete and unequivocal ceasefire.
We believe that the better definition is the one which appears in my amendment, that is to say an organisation which:
is not complying with the Belfast Agreement as set out in Cmd 3883")".
§ That provides, among other things, for complete decommissioning, within two years, of the terrorist organisations. That is part of what we mean by a ceasefire. It would be much better if the Bill were specific in this respect so as to emphasise the importance which we all attach—and which Ministers have attached, both yesterday in another place and here—to progress on decommissioning as soon as possible. It is a key to the success of the agreement and it is very important that we should emphasise it whenever the opportunity occurs. This amendment seeks to do just that. I beg to move.
§ Lord Dubs
Amendment No. 16 draws attention to the need for decommissioning. We expect all those linked terrorist groups who sign up to the agreement to meet their commitments on decommissioning. I welcome the recent steps taken in this regard by Sinn Fein. The process needs to continue and the Government remain committed to its achievement.
The present wording of the Bill makes it clear that the question at issue is whether groups are holding to a complete and unequivocal ceasefire, not whether they are complying fully with the Belfast agreement. The groups we are targeting are obviously outside the Belfast agreement and are seeking to destroy it. The key question is not compliance with the Belfast agreement but that they must hold to a full and unequivocal ceasefire. The point is that organisations are specified because of what they do rather than because of what they do not do, no matter how desirable the latter might be. I therefore ask the noble Lord to withdraw the amendment.
§ Lord Cope of Berkeley
As I said to the Committee, we have discussed this matter many times before at considerable length. I do not propose to do so today. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 [Evidence and inferences: Northern Ireland]:
§ [Amendments Nos. 17 to 23 not moved.]
§ Clause 2 agreed to.
§ Clause 3 [Arrest and detention]:
§ Lord Hylton moved Amendment No. 24:
§ Page 5, line 34, leave out ("whether") and insert ("where").
§ The noble Lord said: I have already spoken to Amendments Nos. 24 and 25. I beg to move.
§ On Question, amendment negatived.
§ [Amendment No. 25 not moved.]
§ Clause 3 agreed to.
§ Lord Molyneaux of Killead moved Amendment No. 26:
§ After Clause 3, insert the following new clause—