§ 5.2 p.m.
§ The Minister of State, Home Office (Lord Williams of Mostyn)
My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"As the House will be aware, the provisions of the Prevention of Terrorism (Temporary Provisions) Act 1989 are subject to annual renewal by the affirmative resolution procedure. It has, however, recently come to my attention that, because of technical defects in the drafting of the 1998 and 1999 continuance orders, certain provisions contained in the 1989 Act have not in fact been in force since 22 March 1998.
"I therefore come before the House today to apologise for this regrettable error for which I take responsibility. I also wish to explain what happened and to advise the House that I intend to revive these provisions, by order, as soon as practicable, subject of course to the approval of this House and the other place.
"The provisions concerned are Sections 16A, B, C, with Schedule 6A and Section 16D of the Act.
"Section 16A makes it an offence to possess articles for suspected terrorist purposes. Section 16B makes it unlawful to collect information likely to be useful for terrorist purposes. Together they form Part IVA of the Act.
"Section 16C provides the power to impose a police cordon in connection with a terrorist investigation, with Schedule 6A setting out the powers that may be exercised within a cordoned area. Section 16D imposes parking restrictions in a specified area. Together they form Part IVB of the PTA.
"The powers in Sections 16A and 16B were brought into the PTA in 1994 and Sections 16C and 16D in 1996. They continued in force each year until March 1998. It was then both my intention and my understanding—and I believe the understanding of the House—that these provisions had continued in force following the renewal debates in both 1998 and 1999.
"However, this has turned out not to be the case. Earlier continuance orders had referred collectively to Parts I to V of the Act, a formulation which obviously includes Part IVA and IVB. It was however as a matter of policy proposed by Ministers and agreed by Parliament that in the 1998 and 1999 orders, Part II relating to exclusion orders, should not operate. The 1998 and 1999 continuance orders, following the omission of Part II, listed separately Parts I, III, IV and V in a way which—inadvertently—did not include Parts IVA and IVB. This drafting subtlety 953 escaped the notice of the draftsman, Ministers, including myself, the House and the legal profession at the time.
"It has indeed only come to light as a result of an eagle-eyed author of an article in issue 19 of the Criminal Law Week of 24th May 1999. As soon as it was drawn to my attention, I sought advice; and once the status of the sections was clarified the police were advised not to rely on these provisions. I very much regret that these provisions have not in fact been in force since March 1998.
"My information is that six people have been charged with offences under Sections 16A and B since 1995 but no convictions have thus far taken place. One person was on bail awaiting trial for offences under Sections 16A and B which were alleged to have been committed after 22nd March 1998. My right honourable and learned friend the Attorney-General has told me that steps have been taken today to quash the indictment. Three other people—referred to as Kebilene and others—are also currently on bail charged with offences under Section 16A of the PTA but the alleged offences occurred before 22nd March 1998. None of these alleged offences relates to Irish terrorism.
"Records on the use of Section 16C—the power to raise a police cordon—are not held centrally. But I understand the section has been used reasonably frequently in recent times. The Metropolitan Police alone, for example, have used the provision 86 times since 22 March 1998. However, there have been no convictions under Section 16C for breach of a police cordon during the period in which this provision has not been in force.
"Notwithstanding the ceasefires in Northern Ireland, we still face the threat of terrorism from many quarters. In these circumstances I think that it is right that the earliest practicable opportunity is taken to revive these measures, so restoring what we all believed to be the status quo. I have therefore today tabled a draft order to bring Sections 16 A, B, C and D back into operation. This order will be subject to the affirmative resolution procedure so both Houses will have the opportunity to debate the revival of the provisions before they may be brought back into force. These debates will take place as soon as practicable.
"There is a separate but related point about Sections 16A and B of the PTA which arises in the case of Kebilene and others. This is a judicial review case which is scheduled to be heard by the Appellate Committee of the House of Lords on 19th July. The case turns on whether the Director of Public Prosecutions should continue to give his consent to the prosecutions for offences under Sections 16A and 16B of the PTA if they are incompatible with the terms of the European Convention on Human Rights.
"The Government believe these provisions, in their current form, are not incompatible with the ECHR and are an important part of the armoury in the fight against terrorism. It is entirely consistent with this 954 position to seek the early revival of these provisions now that it has come to light that they are not currently in force. In adopting this course of action the Government are not attempting to pre-empt. or in any way influence, the outcome of the appeal. We shall await their Lordships' judgment with interest.
"But that need not, and must not, stop us from taking action to ensure that all measures required to counter terrorism are properly available."
My Lords, that concludes the text of the Statement.
§ 5.7 p.m.
§ Lord Cope of Berkeley
My Lords, the House will be grateful to the Minister for repeating this Statement. I am sure that your Lordships will also have sympathy with the Minister for having to confess that lawyers, even parliamentary draftsmen, let alone Home Secretaries and other Ministers with legal qualifications, can err. But this error arose directly from the regrettable fact that the Government did not continue all the provisions of the PTA. They intended to drop Part II and accidentally dropped Parts IVA and IVB too. This is a most serious matter.
As I understand the position, it is not now an offence to possess articles for the purposes of terrorism. That means it is not an offence to possess a gun, explosives or detonators for the purposes of terrorism under this Act. It is not an offence to possess disguises, masks, goggles and all the other apparatus of terrorist attacks. Nor is it an offence currently—as a result of this error—to collect information for the purposes of terrorism such as lists of targets, details of the movements of potential targets and other particulars. Of course these have not been offences since March 1998, originally because of the unrealised error. But that error was realised and indeed made public apparently on 24th May, nearly a month ago. Therefore, these have not been offences—with the Home Secretary's knowledge—for over four weeks.
What is more, the Home Secretary confirmed in another place that he had known about this matter since 26th May, if I heard him accurately. As I understand the position—perhaps the Minister will confirm this—they are not offences in Northern Ireland or in Great Britain. What is more, it would seem that they will not be offences for another few days because the Home Secretary has decided not to use the urgency provisions which I believe to be available to him. If he had used those provisions, the necessary orders could have been brought into force immediately and confirmed by Parliament subsequently.
The drafting point has been described as subtle, technical and obscure. Indeed, it was buried in the text of the orders. However, once pointed out, it is not at all a complex point but an extremely simple point of drafting. It is important that it is corrected at the earliest opportunity.
Perhaps I may ask the Minister when the police were advised of the position. We understand from the Statement that the Metropolitan police have relied on the cordon powers 86 times since the provisions were 955 no longer in force. How many times have the RUC relied on the cordon powers since the provisions were no longer in force?
So far as concerns the future, the provisions are necessary and important. They were supported by all sides when introduced by the previous government; everyone thought they were being renewed and everyone supported their renewal. We will facilitate the passage of the new order which has been made today. We are disappointed that the Home Secretary has not used the urgency provisions which, in this case, would have been entirely appropriate. I have obtained the permission of the Opposition Chief Whip to say that we are prepared to debate and pass this order tonight or tomorrow, should the Government so wish. We will do everything we can to facilitate the passage of the order at the earliest opportunity.
§ 5.12 p.m.
§ Lord Thomas of Gresford
My Lords, perhaps I may refer to the words of the Prevention of Terrorism (Temporary Provisions) Act 1989. It states that:The Secretary of State may by order made by statutory instrument provide … that all or any of those provisions which are for the time being in force … shall continue in force".But also that:The Secretary of State may by order made by statutory instrument provide … that all or any of those provisions which are for the time being in force shall cease to be in force".So it is envisaged in the machinery of the Act that it should be expressly declared in the regulations that are passed under this Act that those provisions which continue in force should be named; and that those provisions that should cease to be in force should also be named. That was the way in which the statutory instrument itself was drafted; namely, continuing certain parts of the Act and declaring that the provisions at Part II of the Act shall cease to be in force.
The point that is so narrow, so technical and so mechanical is simply that Part IV is said not to include Part IVA and Part IVB. Nobody thought that that was an omission. I understand that the anonymous contributor to this journal has expressed his view and the Home Office lawyers have presumably agreed with that view. But it seems to me to be not at all clear that that is the right position.
Be that as it may, this is not a moment for sackcloth and ashes for the Home Secretary because he has made some dreadful error, some dreadful mistake; on the other hand, it is not a moment for spreading the blame to other people in this House or in the other place. I was on the Front Bench when the 1998 order was passed; the noble Lord, Lord Williams of Mostyn, was also in his place. If there is any suggestion that members of other parties failed to stop this matter and are in some way to blame, that is entirely wrong. The Government should not adopt by family motto—Ar Bwy Mae'v Bae, "Who can we blame?"—and seek to spread the responsibility any further than where it rests. We are entitled when we come to the House to assume that if there is a technical or a mechanical defect, then the Government will take 956 full responsibility for that. I have heard that in the other place there is an attempt to spread the responsibility beyond the Home Secretary himself.
My question to the noble Lord is: if the order is now to go through and the earliest practical measure is to be brought before the House, when is that to be? I echo what the noble Lord, Lord Cope of Berkeley, said; why not straightaway? Why do we not do it now if it is so urgent?
My final question concerns why the Government have made a pronouncement on a pending case, which is before the Judicial Committee of this House, concerning the application of the European Convention on Human Rights. Why did the Government make a reference to that case and firmly state their position on it when it is a matter that is to be decided at a later date? Is it right and proper for the Government to take that stance?
§ 5.17 p.m.
§ Lord Williams of Mostyn
My Lords, the Home Secretary would have been manifestly derelict in his duty if he had come before another place, or asked me to repeat a Statement in this House, without telling your Lordships the fullest possible related background detail. He has behaved absolutely properly. He said quire clearly in the Statement I repeated that there is a separate but related point. It is quite separate but it is related. The Home Secretary takes the view—which I share—that in speaking to Parliament we ought to be as candid, as open and as helpful as possible. The Home Secretary has behaved entirely properly.
I should say to the noble Lord, Lord Thomas of Gresford, that the Home Secretary has said that in adopting this course of action the Government are not attempting to pre-empt or in any way influence the outcome of the appeal. Indeed, I take the noble Lord's point further because I think it is an entirely mistaken one. The point that the Government will submit, through their lawyers, to the Appellate Committee will be that we believe that the statutory provisions are convention compatible. That is simply a recitation of the Government's position. It does not determine the outcome; it does not influence the outcome. As the Home Secretary said, it is deliberately intended not to affect the outcome.
I agree with the noble Lord that it is not a case for sackcloth and ashes. I think that the Home Secretary has behaved rightly. I repeat his words:I therefore come before the House today to apologise for this regrettable error for which I take responsibility".In the recent past, that has not always been the attitude of some Ministers in some departments. He could not have been clearer; he is not attempting to blame anyone. He is stating the bare truth; namely, that he missed it; his colleagues and Ministers missed it; the House missed it; the legal profession missed it; and the draftsmen missed it. It is surprising not that these small phrases should have been missed, but how rarely such errors occur. One ought to pay a proper tribute to the work carried out by the draftsmen, very often at very short notice and under great pressure, in getting things absolutely right.
957 Having said that, this is an important matter. We need to have it properly in perspective. I have already given the figures; there have been six charges since 1995 and no convictions. So, although these are important weapons in the armoury, they are not the only ones we have. No one should be unduly alarmist in claiming that they are.
I do not know who was the author of the article in Criminal Law Week. It may have been a woman. I do not assume that all legal knowledge reposes in the male sex. But he or she will have this undoubted continuing moment of glory and, I dare say, free drinks in legal circles for some time to come.
In reply to a question raised by the noble Lord, Lord Cope of Berkeley, there are related offences in Northern Ireland which correspond to Sections 16A and 16B and there are comparable, although slightly different, powers that correspond to Sections 16C and 16D. But those do not depend on this legislation; they depend on the Northern Ireland (Emergency Provisions) Act 1996.
My understanding is that the article was published on 24th May. It was brought to the personal attention of the Home Secretary on 26th May, in his Box. He then asked for advice to be taken. When advice was taken and, I believe, Law Officers were consulted, he thought it right to come immediately to the House to explain what had happened. He was absolutely right not simply to put into action the emergency procedure to which reference has been made. That would have been seen, with some justification, as a device to avoid responsibility and to avoid above all the duty to be candid to this House, which is what he has been. That means that if the affirmative procedure is used the House has the fullest opportunity to consider this matter. That is the proper, scrupulous way to treat, with proper regard, this House's interests. I do not know whether the Opposition Chief Whip has spoken to my noble friend Lord Carter. So far as I am concerned, we are ready to move as urgently as may be required.
There was a question about when the police were told. They were told informally that the status of the provisions had been queried on 27th May. There was no delay there. We had to obtain proper advice. As soon as that was available, at the end of last week, more authoritative guidance was given.
I stress that no charges have been brought in respect of Sections 16C and 16D, the cordon powers. Those powers do not stand alone. They have a relation to common law powers. The proposition was put that certain offences are no longer offences. The noble Lord, Lord Cope of Berkley, if I noted his point correctly, said that possession of a gun, explosives, disguises and so forth would no longer be offences. That is not right. The fine point—and it is an important distinction—is that these two sections, which were wrongly thought to have been continued as part of Sections 4A and 4B, do not provide the foundations of criminal liability. But possession of a gun without a licence is in any event a criminal offence, and there are extremely severe penalties; so is the possession of explosives. If there is material such as disguises, masks and goggles, they can 958 form the evidential basis in appropriate circumstances for charges of conspiracy to cause explosions or grievous bodily harm, or any serious offence.
I am not minimising the mistake that was made. The Home Secretary could not have been plainer than he was: "I apologise. I take responsibility". But we have to put this matter in the proper context. There have been relatively few charges. There have been no convictions. The powers that the law has to deal with the possession of weapons, explosives and similar devices remain utterly intact.
§ 5.22 p.m.
§ Lord Clinton-Davis
My Lords, the House should be indebted to my noble friend for repeating the Statement, and to the Home Secretary for acknowledging the mistake that was made. We hope that it will not be fatal. He acknowledged that mistake very clearly indeed. That is never an easy thing for any Minister. But we could not have expected him to have been more frank than he was. He was open. He spoke with integrity, and Parliament is indebted to him for that.
Will my noble friend comment further on the suggestion made by the noble Lord, Lord Cope, about the speed with which the necessary legislation should be put through Parliament? I would counsel rather more delay than he suggested. It is important that we digest carefully, in this House and in another place, what has been said today. It would be the worst of all worlds if further mistakes were to be made. We must feel impelled to try to avoid that at all cost. It is important to get this matter right. I suggest that speed is not necessarily the best instrument to use when one is in a difficulty of this kind.
I thank my noble friend for the characteristically sensible way in which he repeated the Statement and answered questions on it.
§ Lord Williams of Mostyn
My Lords, I am grateful to my noble friend. My proper approach ought to be that I am entirely in the hands of your Lordships, subject to discussions with the usual channels. I ought to have said, and I am sorry that I overlooked this, that the noble Lord, Lord Harris of Greenwich, indicated to me informally before I came to the Chamber to repeat the Statement that he was willing to stand ready on behalf of his party to co-operate in the way that the noble Lord. Lord Cope of Berkeley, indicated.
It is a relatively simple revision—but then, we all thought that originally. As the Home Secretary said in his Statement, the draft has been laid. We ought to get on with all appropriate speed in dealing with this matter. I stress that we have a duty—and I am grateful to the noble Lords, Lord Cope of Berkeley and Lord Thomas of Gresford—not to alarm people unnecessarily. There is a very significant weaponry of criminal legislation available. I repeat, without attempting to derogate from the seriousness of this point, that very few charges have been brought and there have been no convictions.
§ Lord Molyneaux of Killead
My Lords, we are of course willing to co-operate with business managers in 959 processing the remedial amendments, recognising as we do the seriousness of the situation, and particularly its impact on affairs in Northern Ireland in the coming week.
At such a time there is always a temptation to blame Ministers and the draftsman of the legislation. But I am afraid that I must make myself unpopular. All of us in this House must recognise that we are not entirely blameless. We have no excuse. Although the other place seems nowadays to rush through legislation, often according to a timetable and under a guillotine, when the flawed and imperfect legislation reaches this House we do not make full use of the ranks of noble Lords who are learned in the law and other noble Lords with vast experience. We yield far too often to pressure to endorse measures for, to put it politely, rather dubious political reasons. For example, last September, we were "connived" into passing the post-Omagh legislation all in one day. Much good that has done us.
The impact on terrorism has been very limited. I am afraid that the same is evident in what some call the "grale-diggers" Bill, but which I term the "disappeared" Bill. Both Governments were conned, deceived and double-crossed. I am afraid that that may lead us to the conclusion that, rather than being persuaded—I use that polite term rather than "bullied"—into giving speedy treatment to ill thought-out legislation, of which in the past year there has been a whole host, particularly regarding Northern Ireland, the lesson of the Statement is that this House must insist on proper scrutiny, and on proper time for that scrutiny, from this day on.
§ Lord Williams of Mostyn
My Lords, I am grateful, as always, to the noble Lord for his offer of co-operation, which I gratefully accept. I repeat, for those whose interests he keenly and properly represents, that none of the six cases I mentioned related in any way in terms of allegations to Irish terrorism, although I take the noble Lord's general point about rushing through legislation.
All I can say is that this is a draft order to put right the non-references to Sections 4A and 4B. It is not quite in the category of the Northern Ireland legislation, if I may paraphrase and use that shorthand, which your Lordships discussed and passed in one day in September last year.
I have been given an indication which I ought to share with your Lordships. So far as I understand it, another place intends to take this business at 7 o'clock tomorrow. It would therefore be possible, if your Lordships and the usual channels were agreeable, that we should do it immediately following the dinner break tomorrow. That is the up-to-date intelligence that I have which has just come to me.
§ Lord Mayhew of Twysden
My Lords, I was cut to the quick by the way the noble Lord, Lord Molyneaux, glanced in my direction when he said that all the lawyers in the House were guilty too. Thus I stand subject to that. I wish to make one serious point which perhaps the Minister will answer. As he said, it is unusual for the draftsman, whether departmental or in the Office of Parliamentary Counsel, to make a slip of this kind. It is 960 a slip and it is easy for it to be replicated the following year once it has been made. I echo the tribute that the Minister paid to the draftsman but I wonder whether he is satisfied that in the Home Office or in the Office of Parliamentary Counsel, if that is where the fault was, the resources are sufficient to meet the great pressure that the draftsman is frequently under, to which he rightly referred. This might be an opportunity for review.
Finally, I welcome the speed with which remedying will be brought about. In support of what my noble friend Lord Cope said, it would have been possible, as I understand it, to have made use of the emergency procedure, to have closed the gap straightaway and at the same time to have come to Parliament and made the frank Statement that the Home Secretary made. However, that is water under the bridge: it will he dealt with quickly.
§ Lord Williams of Mostyn
My Lords, I am grateful to the noble and learned Lord for his remarks and for the tribute he paid. He has far more knowledge and experience than I of the expertise available. His question on whether there is sufficient resource, either departmentally or in the Office of Parliamentary Counsel is a proper one to take up. if undertake to transmit it to the Home Secretary. One of the problems is that if something happens and the public are rightly concerned, the pressure to bring in legislation is great. Added to what I may describe as "manifesto commitments"—if I do not irritate the noble Earl, Lord Ferrers, too much by using that phrase—the noble and learned Lord makes a good point. We overlook the pressure we put on people with deadlines which are difficult to meet. Sometimes the pressures are not reasonable.
The noble Lord, Lord Molyneaux, said that he might want to blame lawyers and so on. I do not take that view. The statement that Jack Straw made is quite unambiguous and I repeated it on his behalf.I … apologise for this regrettable error for which t take responsibility".That is the proper and honourable stance for a Home Secretary to take.
§ Lord Skelmersdale
My Lords, we are talking about statutory instruments. That is the answer to the noble Lords, Lord Thomas and Lord Molyneaux. As an appointed member of the Joint Committee on Statutory Instruments, I take a marginal amount of responsibility for all this. At least, I would if we were allowed to discuss matters of policy, which is directly contrary to Standing Orders. I am regularly hauled over the coals by the chairman for trying to do so.
At our meeting yesterday we were advised that art emergency order was in the process of being laid. We were advised by one of our legal counsel that there was nothing wrong with it from our point of view. I have no doubt—although I have not the authority of the committee to speak—that we will give it every fast-track procedure that we can. However, if it is to be debated tomorrow, it will almost certainly have to be 961 accompanied by a rubric stating that it has not been reported on by the Joint Committee. But that should by no means hold it up.
§ Lord Williams of Mostyn
My Lords, I am grateful for the characteristically helpful response of the noble Lord, Lord Skelmersdale. I agree with him that it is something to put the drafting right but it has nothing to do with policy determination because the policy determination was that which underpinned the original draft which turned out to be incorrect. I take his point about the necessary care to be attached to the rubric and to the thought behind his observations.
Viscount Colville of Culross
My Lords, can the noble Lord, Lord Williams, confirm this? I believe the noble Lord, Lord Cope, is wrong in talking about guns, explosives, masks and so on, when a conspiracy was in order. First, none of this unfortunate event has affected the powers of the police in Northern Ireland under the Emergency Provisions Act. As regards the trouble that has occurred under the Prevention of Terrorism Act it only relates to matters which would not otherwise in themselves have caused a criminal prosecution to be available where people possessed such things as, in my time, lengths of nylon cord and other matters which were part of the apparatus of bombs. But they could not in themselves have been included in an offence under either the explosives Act or the firearms Act. Therefore, there is a very narrow area in which the defect will apply and only in Great Britain, not Northern Ireland.
§ Lord Williams of Mostyn
My Lords, I shall divide those points into two parts. The noble Viscount is quite right: it does not affect Northern Ireland. That is a reassurance I sought to give earlier, in particular to the noble Lord, Lord Molyneaux.
On the second point, the noble Viscount also is quite right. The provisions—again I paraphrase, I hope accurately—were essentially to deal with the possession of items or information in circumstances which might give reasonable suspicion that—I put this generally—they might be connected with terrorist purposes. He is quite right. It was to fill a gap in the law which would not otherwise have been covered.
§ Lord Harris of Greenwich
My Lords, is the noble Lord aware that one important point was put to him by the noble and learned Lord, Lord Mayhew? It related to the Home Office legal advisers' department. That department has been under immense pressure for many years. I hope that the Minister will look into it, as he indicated he would, as a matter of urgency. I do not believe that the situation should be allowed to continue.
§ Lord Williams of Mostyn
My Lords, I am grateful for that. The noble Lord has particular knowledge of the Home Office. I never cease to marvel at the quality and expertise of the work we get, under extremely trying circumstances, with very long hours of work. To take one example, with the Northern Ireland legislation of September last year, to my certain knowledge officials 962 were working long hours through the night having to attend in the Box for the Home Secretary in the Commons and then immediately having to come here, with no rest. The work was not only of first-rate quality but they were always cheerful and enthusiastic. That is not something one is paid for, it comes from a loyalty to the cause, which is a good cause, well served by them.