§ 4.15 p.m.
§ Report received.
§ Clause 5 [Rights of access etc. for Agency inspectors]:
Lord Mackay of Ardbrecknish moved the amendment:
Page 5, line 47, at end insert—
("( ) It shall not be a defence for a person charged with an offence under this section that the actions of any Agency inspector infringe the European Convention on Human Rights.").
§ The noble Lord said: My Lords, perhaps I may explain my concern to those noble Lords who did not join us in the Moses Room for the short Committee stage.1345
§ Clause 4 deals with the powers of authorised officers of the British Government to enter premises to see whether a person is producing something which could be sold to a country and used for the production of nuclear weapons. I am sure we are at one on the purposes of the Bill: to empower an agency to try to prevent such transfer taking place. But Clause 4 gives powers to officials of, I suspect usually, the Department of Trade and Industry to enter a person's house in order to look for material—objects, plans on computers—which that person may not own up to and which may breach this legislation and the convention.
§ Clause 4(4) provides that a justice of the peace has to be satisfied before a search warrant will be given. Your Lordships will not be surprised at that. In this country we believe that before an authority can enter someone's premises, and in particular his house, it should satisfy a justice of the peace on the merits of its case.
§ Clause 5 deals with officers of the international agency. They do not need any warrant to enter premises or houses in this country if they think that something is amiss upon which they need to check. There is a significant difference between the way we expect officials of our own Government to behave and the way we allow officials of an international agency to behave. First, is that right? Secondly, is that consistent with the European Convention on Human Rights and the Human Right Act 1998?
§ We discussed these matters in Committee. The Minister gave me fair and understandable answers to both questions. I am particularly concerned about my question on the European convention. In order to complete the picture for those noble Lords who were not present in the Moses Room, I shall say something about the Minister's answers to my first question. Is it right that those international agency inspectors should have powers of entry which we would not give to inspectors who are agents of our own Government?
§ The first of the noble Lord's arguments was precedent. He rightly pointed out that in the Chemical Weapons Act 1996, which was taken through this House by my noble and learned friend Lord Fraser of Carmyllie, the inspectors of the agency do not require a warrant. He also pointed out that that provision was replicated in the Landmines Act 1998. I, and I am sure other noble Lords, understand that. However, is it good enough to argue that because something was done in the past it must be done again, again and again? Can we allow precedent to be offered up as an excuse for failing to ask whether it is right? It looks almost as though the forces of conservatism are ruling the roost and that one must always accept what was done without question.
§ When my noble and learned friend Lord Fraser of Carmyllie introduced the Chemical Weapons Bill, he was proposing that for the first time such an international agency should have powers of entry in this country. After the passing of this Bill we shall have three such agencies. It is time to say, "Wait a minute! Is this the right thing to do?".1346
§ The noble Lord, Lord McIntosh, gave a second reason for not requiring the inspectors to seek the approval of a justice of the peace; namely, that if we set up a legal hoop for the agency's inspectors to jump through—even one which we view to be harmless as regards pursuit of someone who is breaking the law, but which we consider to be important as a safeguard for individual rights—other less scrupulous countries such as Iraq would use legal procedures to prevent entry in their countries; and while they were doing so they could secrete away whatever they were trying to hide.
§ I understand that requiring a justice of the peace to sign a warrant might make life difficult in other countries. However, should we set aside the standards which we apply to the liberty of the individual just because of the read-across to other countries which do not have such standards? If we took that view, we should be threatening our liberties over a wide field.
§ Thirdly, the noble Lord told us that as we have signed up to the treaty the imposition of any condition would be a breach. I understand that argument also. However, perhaps we should be saying to the Government, "All right, we understand all that and we will let you off this time. But, please, if you bring forward another Bill, another international agency and another protocol, remember that we have these rights and they ought to be kept in place for the protection of individuals in this country". I doubt whether the measure is right, but I am prepared to accept the third agency. Frankly, if another comes along I hope to be able to persuade your Lordships that it is a step too far.
I should probably have left the matter where we concluded it in the Moses Room. However, another aspect was raised there which—dare I say? —was answered less satisfactorily by the noble Lord, Lord McIntosh. That has been suggested to me in legal advice. I refer to the interaction between this Bill and the European Convention on Human Rights and the Human Rights Act 1998. The noble Lord pointed out that on the front page of the Bill—I am not sure that that will be the face of it when it becomes an Act—it is stated that,
the provisions … are compatible with the Convention rights
I am almost certain that the noble and learned Lord the Lord Advocate thought that the way the Scottish legal system appointed temporary sheriffs was consistent with the convention. He would have said so had he been asked, but he suddenly found that it was not. That caused a great deal of chaos in the court system in Scotland. So although the convention can have —or perhaps intended—consequences, we cannot accept at face value ministerial assurances that a Bill does not breach convention rights.
§ In Committee, the noble Lord, Lord McIntosh, told me that he had two answers to my question and that one was a cheeky answer. To be fair to him, he did not found on that cheeky answer, but I want to look al it. It was that, technically speaking, the agency was not a 1347 party to the convention and therefore its inspectors could not breach the measure. I shall return to that in a moment.
The question is whether an individual whose premises or home had been raided by an officer of the agency without a warrant has any grounds for legal action under the convention. As regards the powers granted to agents of the international agency, is the Bill a potential infringement of the convention? Section 1, Article 8, of the convention clearly states:
Everyone has the right to respect for his private and family life, his home and his correspondence. … There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law".
The first protocol expands on that, stating in Article 1:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law".
Those rights are subject to a public interest. That is clear and I accept it. However, how would the courts view that public interest? One could argue that the position of temporary sheriffs in Scotland was entirely in the public interest because it meant that justice was dispensed speedily and quickly. However, that did not hold much water. The fact that the Scottish Executive has not appealed suggests that it did not believe that a case could be made.
§ We all know that the convention rights protect individuals. I am not a lawyer and I may be casting the net wider than the definition of "possessions", taking it to business premises. However, it could include someone at home; ideas, plans or instructions on a computer held in someone's home. Such information might be helpful to a foreign power which wanted to manufacture nuclear weapons. Therefore, the measure may apply to homes as well as to office and factory premises. I know that the secondary legislation details what inspectors might look for and that, by and large, it appears on goods, tubes and pieces of kit. However, it could include ideas.
§ Taking those two parts of the convention, is the fact that agency inspectors do not require a warrant from a Justice of the Peace in breach of it? If not, why is a Justice of the Peace warrant required for DTI inspectors in this country? If the one is not a breach, is the other?
I turn to the question whether officers of the agency acting in the UK are bound by the convention and the 1998 Act. My first point is that Article 1 of the convention clearly states:
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention".
That seems to me to be straightforward; that everyone within the jurisdiction of the United Kingdom is to have these rights. It does not state that anyone coming to this country who has not signed up to the convention can breach them. I am not a lawyer, but Article 1 suggests that whether the agency has signed is neither here nor there. In fact, it could not do so
because it is not a country; it is not one of our contracting parties. I do not suppose Strathclyde police force has signed the convention, but it is still bound by it and rightly so. Therefore, I wonder whether the agency is bound by it.
My second point is that the agency is a public body and I suggest that its inspectors are bound by the 1998 Act. Section 6 clearly states:
It is unlawful for a public authority to act in a way which is incompatible with a Convention right".
Subsection (3) states:
In this section 'public authority' includes … any person certain of whose functions are functions of a public nature".
Again, reading that as a non-lawyer, it seems to me that an international agency must be considered a public authority, unless, of course, there is lots of small print stating that it is not.
§ What I am really asking here is whether we are absolutely certain that the Bill does not infringe the convention and that an individual will not be able to slip out of court proceedings against him because he pleads a breach of the convention. I should like the Minister to be sure in his own mind, and his officials to be sure in their own minds, not only that the legislation complies with the convention, as he asserts on the Bill's cover, but also that its exercise in the circumstances which we are considering would comply. Otherwise, we may actually be giving individuals with something to hide the possibility for the convention to be used to give them perhaps just enough time, by going to court, to remove whatever it is that they do not wish the inspectors to find.
§ My amendment is designed principally to allow your Lordships to consider those issues and also to offer the Government a possible belt-and-braces amendment which would make absolutely sure that no one could go to court to plead a breach of the convention against any agency inspector. I beg to move.
§ 4.30 p.m.
§ Lord McIntosh of Haringey
My Lords, that was a remarkable speech. In nearly 15 minutes, the noble Lord, Lord Mackay, failed to remind the House that the amendment which he was moving was the exact opposite of the amendment he moved at Committee stage. In Committee he moved the following amendment:For the purposes of subsection (6) a certificate authorising entry by an Agency inspector shall be in a form published in regulations and of which due notification has been given in accordance with section 3(5)".I must confess that when we looked at the new amendment that he tabled last week we were puzzled, because he had added the word "not" to his previous amendment. Now he is saying the exact opposite to what he said at Committee stage.
I had a brief and glorious career in the Royal Artillery many, many years ago, where such manoeuvres were called "bracketing". On the first occasion one shoots a long way short of the target; on the second occasion one hopes to get closer. Having 1349 shot short of the target, the noble Lord has now shot long of the target, but he has not got any closer to it. I am not inviting him to try again at Third Reading, but I am truly puzzled by the way in which he has chosen to address this important issue. I do not wish to denigrate or to deny the importance of the issue. Having had my small amount of fun, I propose to address the issue seriously.
The noble Lord is quite right to say that the Government and I should think carefully about the assurance given over my signature on the face of the Bill that, in my view, the Bill's provisions are fully compliant with the European Convention on Human Rights. I am therefore sorry to see that, although he appeared to be concerned to uphold the principles of the convention, the noble Lord is now prepared in his new amendment to defy the convention.
The amendment that he has now tabled would have far wider effects than I imagine he intended and which the Government believe to be undesirable. Specifically, it would prevent anyone prosecuted under Clause 5(7) of the Bill from using the defence that an agency inspector had infringed the European Convention on Human Rights. As I explained in Committee—in what the noble Lord, quite rightly, reminded me was my "cheeky" answer—technically speaking, an inspector could not infringe the convention because the International Atomic Energy Agency is not a party to it. The IAEA and its inspectors cannot breach something to which they are not formally subject. However, we did not rely on that argument in Committee and I do not rely on it now.
We are confident that the rights given to agency inspectors by Clause 5 are consistent with Article 8 of the convention—which the noble Lord read out—to the extent that those rights are exercised in relation to premises within the scope of that article. Article 8 of the convention is, understand, principally concerned with domestic premises, and it is unlikely, although I concede not impossible, that the rights under Clause 5 would ever be exercised in relation to domestic premises. We are confident also that the rights are consistent with Article 1 of the first protocol to the convention on peaceful enjoyment of possessions.
However, if an inspector acted in a way which was—to use a neutral phrase—inconsistent with the rights protected by the convention, we believe that the courts should be able to decide for themselves whether that inconsistency was relevant to any offence with which a person was charged under the Bill; and if it was relevant, what effect, if any, that should have on the outcome of the prosecution. For example, if an agency inspector's actions were inconsistent with a person's rights under the ECHR, that could be relevant to whether the inspector was indeed acting,in the exercise of a power under",Clause 5, for the purposes of an offence under Clause 5(7); or to whether the person charged with an offence under Clause 5(7)(b) or (c) had a "reasonable excuse" 1350 for failing to comply with a request of an agency inspector, authorised officer or constable or for interfering with things placed on land by an agency inspector. The defence of "reasonable excuse" is already set out in paragraphs (b) and (c).
Under Clause 5 as drafted, an action by an inspector which was inconsistent with the ECHR could—and should—be capable of providing a defence to such a prosecution if that particular action were relevant to the subject matter of the charge. But the amendment before us would remove from anyone prosecuted under Clause 5(7) any opportunity to rely in his defence on the fact that the inspector's action was inconsistent with the rights protected by the convention, even if the impact on the person's human rights justified the action taken.
Like Amendment No. 10—which I quoted—tabled by the noble Lord at Committee stage, this amendment would cause confusion about the extent to which breaches of the ECHR could be taken into account in deciding whether offences had been committed under other provisions of the Bill and, indeed, possibly under other legislation. It is much better to let the courts decide on normal general principles when, and how far, infringements of human rights are relevant to whether any given offence has been committed under Clause 5(7) or other offence provisions in the Bill or, indeed, elsewhere, instead of trying to tie them down in advance by a provision in the Bill which takes no account of the individual circumstances of each particular case.
In introducing his amendment, the noble Lord correctly described the three arguments I used about the earlier provisions of the Bill concerning enforcement other than by agency inspectors. First, he quite correctly reminded the House of the precedent set by the Chemical Weapons Act 1996. Secondly, he quite reasonably argued that we should not be setting aside our own liberties because of the need for strict enforcement in other countries unless that is absolutely necessary.
That point leads me on to the noble Lord's third argument about the breach of treaty, which is the fundamental point. It is incumbent on all nuclear weapons countries to act in accordance with the Nuclear Non-Proliferation Treaty and to be seen to do so, because that is the way in which the non-nuclear weapons countries may effectively be deterred from becoming nuclear weapons countries. That is a great prize before us: the full implementation throughout the world of the non-proliferation treaty. It could be put at risk—I put it no higher than that. It could be put at risk not only if we fail to comply fully with our obligations under the treaty and the Vienna protocol but if we fail to be seen to do so. I do not believe that that prize should be thrown away for this purpose. I do not believe that the amendment should be supported, even if it were not defective in its wording. I hope that the noble Lord will not press it to a Division.
§ Lord Mackay of Ardbrecknish
My Lords, before the Minister sits down, perhaps he can answer a question. If, let us say, a court decides that an agency inspector has infringed the convention rights of an individual and throws out a case against that individual, would not that be in danger of being a breach of the convention and therefore put us in the difficult position which he and I certainly would not want to see?
§ Lord McIntosh of Haringey
My Lords, I do not believe so. We must do our best within our own and international law to follow the protocol to the letter and, if necessary, follow the spirit. If we fail to do so because of international obligations under the European Convention on Human Rights, that will be widely understood. However, we must make the effort.
§ Lord Mackay of Ardbrecknish
My Lords, I thank the noble Lord for his response. I may resist the temptation to ignore his tease at the beginning. I believed that I was being reasonable. By tabling my amendment, I was trying to be sure that the Government were absolutely right in their assertion in Committee that the Bill squared with the convention. The amendment states that one cannot plead the convention if one is charged.
I believe that the noble Lord knows, and I hope that the House realises, that I shall do nothing to hinder the passage of the Bill. That does not mean that we should not scrutinise these matters carefully and make sure that we are proceeding in the proper manner. I accept the answers which the noble Lord gives. I hope that he takes my point that if this Government or any future government look for a fourth time at another international agency—an agency which may be set up of which as yet we know nothing—we should be a little more careful. We should try to find a way to ensure that inspectors in this country, who are forced to act within our traditions of respect for civil liberties and the rule of law, do not find themselves in a more difficult position than inspectors of an agency which can come into this country and not have to go through the same "hoops" as our own inspectors.
Frankly, it is not a great problem for the authorities to go to a justice of the peace and persuade him of a case. No one knows that they are going to a justice of the peace to do so. The police do so quite happily all the time, asking constantly for warrants to search premises and homes. It does not impede their investigations in any way, shape or form, and it would not impede the investigations of those international agencies.
It is a pity that we have decided to go down this route and I hope that we shall not go down it too often in the future. I certainly hope that the noble Lord is right in his assertions about the relationship between the Bill and the convention and that no one finds that the convention provides a screen behind which to hide. With that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.