§ 7.34 p.m.
§ The Minister of State, Home Office (Lord Williams of Mostyn) rose to move, That the draft order laid before the House on 23rd June be approved.
§ The noble Lord said: My Lords, your Lordships will know that with permission I repeated yesterday a Statement made by the Secretary of State for the Home Office in another place. The burden of that Statement was that, due to an error in the drafting of the 1998 and 1999 continuance orders, Parts IVA and IVB of the Prevention of Terrorism (Temporary Provisions) Act 1989 had not been in force since 22nd March 1998. As promised, I return seeking the revival of those provisions. I am grateful to the noble Lords, Lord Cope of Berkeley and Lord Thomas of Gresford, for their assistance in having these matters very promptly brought back before your Lordships.
§ I said yesterday that it was our intention and understanding—and I have no doubt that of the House—that Sections 16A, B, C and D of the PTA should continue to be available following our debates. In repeating the Statement yesterday, I indicated that that was not so. The error was discovered by an academic writer in Criminal Law Week; it was brought to the attention of the Home Secretary on 26th May; we had advice on the argument in the article from the Law Officers which came to the Home Office on 17th June; thereafter we had detailed advice from officials on 18th June; and the draft order was laid yesterday, 23rd June.
§ Before I go, quite shortly, to these relatively simple provisions, I should correct one point from the repeated Statement of yesterday. The information we had yesterday was that six persons had been charged with offences under Section 16A and B; in fact the total was seven. The seventh related to international terrorism and the matter was dropped before it came to court. It is only right that I should correct that error. It remains the case, therefore, that there have been no convictions so far under Section 16A or B.
§ I perhaps should make one other point of clarification. In repeating the Statement I referred to an individual who had been in custody for some months and that we could expect to receive a claim for compensation. In one other of the total of seven cases, the alleged offence was committed after 22nd March and there were some months in custody; therefore there may be a compensation claim.1130
§ Quite shortly, Section 16A makes it unlawful to possess articles in circumstances which give rise to suspicion that they are intended for terrorist purposes. It is a defence to prove that the articles concerned were not held for terrorist purposes. Section 16B makes it an offence to collect or record information which is likely to be of use to terrorists without lawful authority or reasonable excuse.
§ It is true that these provisions have been rarely used, as I indicated yesterday in answer to particular questions from Members of the House. Experience of the equivalent provisions in Northern Ireland is positive. Both the noble and learned Lord, Lord Lloyd of Berwick, in his inquiry into legislation against terrorism and Mr John Rowe QC in his annual reports on the operation of the PTA have commented on the usefulness of the provisions and recommend that they should be retained.
§ Your Lordships will know from what was said yesterday that there is a matter going through the courts; I understand that it will be determined on 19th July by the Appellate Committee of your Lordships' House in the case of "K" and others. I simply mention that as part of the narrative; we spent some time discussing that matter yesterday.
§ I turn now to Sections 16C and D. Section 16C gives police, subject to authorisation at superintendent level or above, the power to cordon off areas and to restrict access in connection with terrorist investigations; and creates offences if police instructions are not obeyed. As I said yesterday, central records are not kept. The powers have been relatively frequently used by the Metropolitan Police Force, which has used them 86 times since March 1998. As I indicated yesterday, there are certain common law powers, but Section 16 provides a firm statutory basis for police action.
§ Section 16D gives the police the power to impose temporary parking restrictions on roads in response to a general threat to vulnerable targets such as government buildings or financial centres. There are some common law powers but the provision provides the reassurance of statutory underpinning. As with Section 16C', both the noble and learned Lord, Lord Lloyd, and John Rowe QC thought that the powers are valuable and should be retained.
§ I hope that that is a sufficient summary of the present position. Everyone who had to do with the passage of the continuance orders thought that the drafting brought about the legal consequence that Section 16A, Section 16B, Section 16C and Section 16D had legal statutory effect. Our advice being that they did not, we thought that it was our duty to notify both Houses of Parliament as soon as possible and, following the indications given by the noble Lords to which I referred with gratitude earlier, this has been the earliest opportunity. I commend the order to the House.
§ Moved, That the draft order laid before the House on 23rd June be approved.—(Lord Williams of Mostyn.)
§ Lord Cope of Berkeley
My Lords, as will be apparent to those who were present yesterday or who read what I said yesterday on this matter, I welcome the 1131 prompt way in which the Government have brought this order before the House. It is right to put these offences back on the statute book following the unfortunate way in which they fell off it, as it were, by accident. We have all supported these offences being on the statute book. We thought at the time that we were keeping them on the statute book—everyone did—and they are not, as far as I know, controversial. I welcome the order and the promptness with which it has been brought before the House.
The only matter which still concerns me is why it took a month between the discovery of the mistake and the Statement that was made and the order that was laid yesterday. I realise that the Government would be particularly keen to give attention to the drafting of the order in case there should be some further error in the matter. But the point, although obscure in the sense that it was tucked away in the law, is not a complicated one as far as I can detect. It is a relatively simple one. I am not a lawyer, but it seems that way to me.
The Minister has just explained in a little more detail what happened during the month. Evidently, the Law Officers took from 26th May to 17th June to decide what advice to give to the Home Secretary. So it would seem that three weeks or more were taken up by the Law Officers in considering the case. That is not of great importance now. The important point is that we are now putting the matter right. But I do not think that it reflects very well on the urgency with which the Government tackled the matter.
As the Minister said, there were references yesterday, both in the Statement and in the exchanges which followed, to the particular case involving the sections. It did not seem to me yesterday, and it does not seem to me in considering the matter since, that those are precisely relevant to what we are doing today. Thanks to modern devices, I was listening to some exchanges in another place on this order a few minutes ago. However, I do not think it is either necessary or helpful to pursue that matter today. We may or may not have to return to it once the Appellate Committee of your Lordships' House has come to its view. However, that is a matter for another day.
§ Lord Thomas of Gresford
My Lords, I apologise for introducing a sour note into this debate, but yesterday I raised the propriety of that part of the Statement which said: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 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".—[Official Report, 23/6/99; col. 954.]When I raised the propriety of making that kind of comment, my view was based not on knowledge of what had happened, but on principle. I was a little taken aback by the vigour of the Minister's reply on this issue. He 1132 was not his usual urbane self. At col. 956 of the Official Report, he said:The Home Secretary takes the view … that in speaking to Parliament we ought to be as candid, as open and as helpful as possible".The method of his reply aroused my curiosity and I made further investigations. I discovered that what the Home Secretary failed to say to Parliament in the Statement repeated by the noble Lord was that the view being expressed as to compatibility with the European Convention was contrary to the law as at present interpreted by the Lord Chief Justice and two other judges in the Divisional Court in the case to which reference was made—"K". So it is not peripheral. I regret to disagree with the noble Lord, Lord Cope, on this matter. I had assumed that the Statement that was confidently made yesterday represented the present position and that it was the applicants in that case who were mounting a challenge to the Government, who had obtained a successful judgment.
The passing of this order does not affect the judgment of the Divisional Court. The decision of that court was that the DPP had continued the prosecution of the applicants in the mistaken belief that these provisions of the Prevention of Terrorism Act did not violate the European Convention and had thus made an error of law. So the view of the courts as presently expressed is that there is an error of law when prosecutions are brought under the Act. I think that there is a vast difference between this House being asked to approve an order which is in accord with the judgment of the Divisional Court and being asked to do so when, as at present, the legislation which is being continued is held to be contrary to that view and is determined to be in violation of the European Convention on Human Rights. I do not find the Home Secretary's Statement to be candid, open or helpful. Indeed, I feel that I was misled yesterday and that the House was misled.
It is central to the Human Rights Act that Parliament be made aware of the extent of compliance with the convention when it debates legislation. That is why we have Explanatory Notes at the beginning of proceedings on a Bill and a statement of compliance on the face of the Bill. No doubt that is the reason for what I thought yesterday to be an extraneous piece of information contained in the Statement.
I do not think it is helpful to discuss the decision of the Divisional Court except to point out that it is in exact accord with the views expressed by the noble Lord, Lord Williams of Mostyn, when in opposition. It was his view, he then said, that the offences were far too harsh and draconian and that they would bring the law into disrepute. When the measures were first introduced, he said that they would bring us into serious conflict with the European Convention on Human Rights. The noble Lord's view has been upheld by the Lord Chief Justice and other judges. The noble Lord said:If we condemn our citizens to the possibility of 10 years' imprisonment on the basis of reasonable suspicion…we are in serious danger of giving terrorism a victory that it would not otherwise achieve".—[Official Report, 7/6/94; col. 1208]1133 That view was expressed not only by the noble Lord, but also by Mr John Rowe QC, who identified Section 16A as being potentially in breach of Article 6(2) of the European Convention.
The argument about the presumption of possession under Section 16A(4) of articles giving rise to a "reasonable suspicion" that the article is in his possession for a purpose connected with the position of terrorism is very reminiscent of the first case which came to the Privy Council from Hong Kong—the case of Lee Kwong Kut— in which I was personally involved. The point is that the test of "reasonable suspicion" in that Hong Kong legislation, and indeed in this legislation, is purely objective. A person can be found guilty and sentenced to up to 10 years in prison even if he is actually unaware of the true position. The presumption of innocence is violated.
As for Section 16B, the category of information that is encompassed is impossibly wide. I quote:a simple map or a simple list of addresses and telephone numbers would fall into this category … The real danger will be that persons who have information recorded or collected or possessed by them will be charged and harassed unnecessarily".—[Official Report, 7/6/94; col. 1209]Those are the words of the noble Lord, Lord Williams of Mostyn. I commend him on his correct interpretation of the law as upheld by the Divisional Court.
This is a serious matter. It is positively unconstitutional to legislate, even with secondary legislation of this kind, which as I said yesterday does not make a great deal of difference so far as the order is concerned. The intention of Parliament was perfectly plain in the previous order that was passed. It is unconstitutional to legislate on the Government's assurance that these offences are compatible with the convention when the courts have ruled precisely to the contrary. Unfortunately, it gives no confidence that, when future legislation comes forward, with the Government giving a certificate that it complies with the European Convention, that certificate means anything.
It is for that reason that noble Lords see in me a complete volte-face from the position that I took yesterday; namely, that the quicker we got what I regarded as a technical and mechanical matter out of the way. the better. I do not believe that that is so. On further examination, there are important issues. This legislation should not have been brought forward until the Judicial Committee had—if it does so; and that is a matter of great argument—actually set aside the decision of the Divisional Court.
There are ample powers of protection in the meanwhile, as we discussed yesterday. The ordinary law of criminal conspiracy is sufficient to enable the prosecution of individuals who possess information with the intention of using it to carry out a terrorist attack. The only point is that the prosecution have to prove that offence beyond reasonable doubt, whereas under this legislation the burden of proof is entirely reversed.
Finally, I am reminded of the wise words that were spoken by my noble friend Lord Wigoder in 1974, when the Prevention of Terrorism Bill was introduced into the 1134 House by another of my noble friends, Lord Harris of Greenwich, who was then on the Labour Benches. My noble friend said:all of us who treasure our civil liberties—and that means every Member of your Lordships' House—is bound to want to consider with the greatest care emergency legislation which may have been hastily conceived, hurriedly drafted and passed into law without careful detailed examination in your Lordships' House".—[Official Report, 28/11/74; col. 1517.]That was a very wise statement. It is as applicable today as it was then. I should be grateful if the Minister could deal with what I regard as the unconstitutional aspects of the order.
§ Lord McConnell
My Lords, on many occasions I have attacked the Government for their attitude towards terrorism and for not being enthusiastic enough in dealing with it. But on this occasion I support the order. It is perfectly right and proper that it should be brought before the House. It is, therefore, only right that I should stand up and say so.
This matter has taught us certain lessons about being more careful in the future, about not rushing legislation, and about examining it before it is presented to either House. But I need not rub that in. Those lessons have been learnt recently. I shall merely content myself by saying that I support the Minister in regard to this order.
§ Lord Williams of Mostyn
My Lords, I want to make the timetable absolutely plain. I know that it is a relatively minor matter, but I do not want any misunderstanding.
The article appeared in the Criminal Law Week on 24th May. The Home Secretary was faxed the article on 26th May. We spent the time from 26th to 28th May preparing advice and questions for the Law Officers. So the advice from the Law Officers, in fairness to them, was asked for on 1st June. It arrived at the Home Office on 17th June. I should not like there to be any suggestion that the Law Officers were dilatory, because I do not believe that they were.
I am rather surprised that the noble Lord, Lord Thomas of Gresford, felt that he had been misled yesterday. I do not think anything could have been plainer. In repeating the Home Secretary's Statement, I made specific reference to the case of Kebilene and others. So far as I know, that has been reported and commented on in the newspapers. If the noble Lord. missed it, then I am rather surprised; it has been reported and commented upon. The reason that it was mentioned in the Statement, I think rightly, was to point out that there was a judicial review and it was about the question of whether or not the Director of Public Prosecutions should continue to give his consent to the prosecution of offences under Sections 16A and 16B. if they are incompatible with the terms of the European Convention on Human Rights. That is the point of Kebilene. The European convention has not been fully incorporated by the Human Rights Act, which will not come into effect until 2nd October next year. I believe that we did rightly 1135 in drawing your Lordships' attention to the case of Kebilene and the fact that the Appellate Committee was going to determine issues that were related, as the noble Lord, Lord Cope, said, not central to, the particular matter.
As the noble Lord, Lord Cope of Berkeley, indicated, and as your Lordships agreed, we all thought that the drafting of the continuation orders had had the legal effect of continuing Sections 16A, 16B, 16C and 16D as the basis for criminal offences. Because the drafting was in error, as I explained yesterday and was generally accepted, it turned out that Sections 16A, 16B, 16C and 16D were no longer of legal effect. Having taken advice on that—and one does not want to rush into matters of this potential importance—we brought the matter back to the House and explained the error that had been made; the Home Secretary said, "for which I take responsibility", and no one tries to derogate from that. I cannot imagine that anyone could conceivably have been misled who had put his or her mind to these matters.
There is nothing unconstitutional about what we are doing. I repeat, although I was reproved by the noble Lord, Lord Thomas of Gresford yesterday, that we believe that our stance on incompatibility and compatibility is the correct one. In due time, should the House of Lords Appellate Committee come to a different view, we shall have to review the position. But I stress that what the House of Lords is being asked to consider is the application for judicial review, which has already been heard at first instance in judicial review terms, as to whether the director should carry on giving his consent to the prosecution of offences if the offences are not compatible with the European convention. I see nothing unconstitutional in that. I believe that we were right to mention the case of Kebilene yesterday. If I had not mentioned it in repeating the Home Secretary's Statement, your Lordships could reasonably have felt a little aggrieved that we had not been as full and frank as possible. I put the matter yesterday on the basis that this is a related matter. The noble Lord, Lord Cope, was good enough to repeat it. I do not think that he ever said that it was peripheral, which was the word used by the noble Lord, Lord Thomas. I think he said that it was related but not central to this point. I commend the order to the House.
§ Lord Cope of Berkeley
My Lords, before the Minister sits down, is he aware that I myself saw both the law report and the newspaper report of this particular case at the time, although I am not as avid a reader of law reports as the Minister. It seems to me that if the Government had failed to bring the order before the House in these circumstances, they would have been prejudging, if not prejudicing, the case in the Appellate Committee. To me that would have seemed to be unconstitutional to a much greater degree than bringing the order before the House in the circumstances.
§ On Question, Motion agreed to.
§ Baroness Farrington of Ribbleton
My Lords, I beg to move that the House do now adjourn during pleasure until 8.15 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 7.59 to 8.15 p.m.]