HL Deb 06 June 2000 vol 613 cc1044-66

2.52 p.m.

Lord Bassam of Brighton

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Bassani of Brighton.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 65 agreed to.

Schedule 9 agreed to.

Clauses 66 to 79 agreed to.

Clause 80 [Conviction during remission]:

Lord Bach

moved Amendment No. 160: Page 39, line 21, at end insert ("and"). The noble Lord said: Amendments Nos. 160, 162, 163, 192, 197A, 197B, 198, 202A, 203, 204, 205, 205A and 205B are all government amendments. In moving Amendment No. 160, I shall speak to the other amendments in this group. I can do so briefly.

Amendments Nos. 160 to 168 and 205A and 205B are drafting amendments. They include those recommended by parliamentary counsel and make drafting improvements to the Bill. The other amendments in the group are all technical amendments to Schedule 15, which deals with consequential amendments. They do not reflect any change of policy. I should be happy to explain the purpose of each of the amendments, if necessary. However, if the Committee does not require further explanation, I beg to move Amendment No. 160.

On Question, amendment agreed to.

Clause 80, as amended, agreed to.

Clauses 81 to 84 agreed to.

Schedule 10 agreed to.

Clauses 85 to 88 agreed to.

Clause 89 [Power to stop and question]:

[Amendment No. 161 not moved.]

Clause 89 agreed to.

Clauses 90 to 94 agreed to.

Clause 95 [Sections 81 to 94: supplementary]:

Lord Bach

moved Amendments Nos. 162 and 163: Page 46, line 22, after ("(3)") insert (", 8"). Page 46, line 25, leave out ("7") and insert ("8"). On Question, amendments agreed to.

Clause 95, as amended, agreed to.

Lord Glentoran

moved Amendment No. 164: After Clause 95, insert the following new clause— DETENTION OF TERRORISTS (" . Schedule (Detention of terrorists) shall have effect with respect to the detention of terrorists and persons suspected of being terrorists."). The noble Lord said: In moving Amendment No. 164, I shall speak also to Amendment No. 165. These amendments concern internment. Under the Conservative government internment remained part of the terrorism legislation for Northern Ireland. In, I believe, 1998, the present Government chose to remove it. At the time, we said that we believed that to be a mistake. We still believe it to be a mistake, although I believe it is fair to say that for a period it appeared not to be useful.

However, I believe that a number of factors, some of which have arisen recently, are very important. First and most importantly, the people with whom the Government are dealing on the friendly side are in the Irish Republic. So far as concerns terrorism, the Irish Government are very much our partners in managing the problems of Northern Ireland. They still have internment on the statute books. They are probably wiser than most of us in these matters. They have had experience of Sinn Fein/IRA, the IRA and various other forms of Irish terrorist organisations for longer than the life of Northern Ireland. Some of them may still remember the days when it all started.

On a more positive note, it appears that there may be a road of peace ahead of us. Those who were considered our enemies are now sitting down in government. They are sitting down in a British government, which they feel very uncomfortable about. They are sitting down with colleagues of Unionist persuasions who feel even more uncomfortable that they are sitting with Sinn Fein.

However, history tells us (and we do not have to look back many years) that the pattern of Irish terrorism evolves frequently in the same way. Some sort of peace is made and then there are dissident groups. Once again, we see the dissident groups of republicanism flexing their muscles and currently making a serious nuisance of themselves. I do not think I am giving away any secrets; most of it is in the press. The intelligence reports state that the Real IRA and the Continuity IRA are two organisations which work pretty closely together with many youngsters but one or two, or three or four, well-qualified terrorists.

I was not in the country at the time of the Hammersmith Bridge bomb but heard about it within hours of it happening, as I am sure did most of Europe. We know the gentleman who made that bomb. We know where he lives. When I say "we" I use the term loosely. The Irish Government and the Garda Siochana know. His signature was very clear.

Changing tack a little, in the 1970s, internment was a failure. There is no doubt that it was badly used by British governments and that it fell into serious disrepute. We had little intelligence and no moles, spies or intelligence agents within the IRA. We interned foot soldiers but rarely officers and never generals. Now, life has moved on. I can speak only from when my noble and learned friend Lord Mayhew left power. At that stage we had an extremely sophisticated, competent, reliable intelligence force or forces operating within Ireland both within and outwith the IRA, feeding those who needed to know extremely hard, good, reliable information.

On the assumption that the present Government have not reduced that level of intelligence in any way—I have no reason to believe they have—we should still have a significant level of intelligence. I hope I demonstrated that a few moments ago by telling noble Lords that it did not take very long for the intelligence service to inform those in authority and in need of knowledge who made the Hammersmith bomb, where he lived, and so forth.

That might be a one-off. Noble Lords have often heard me play devil's advocate and cynical advocate on Northern Ireland from this Box. They will not be surprised to hear me say that I do not have great faith in the political future as it stands. I wish I had, but I do not. I am pretty confident that the strength, knowledge and technology of what are now called the dissident groups will rapidly increase. I believe that both governments, Westminster and Dublin, will wish to work closely together, decisively and swiftly, to stop a major increase in and spread of terrorism by new dissident groups. I suggest that one way to do that is to have the power of internment on the statute book. Whether or when it would ever be used, one never knows.

The Bill is not a high-profile, Irish anti-terrorist Bill but one which the Government are rightly introducing to help tidy up our terrorist legislation and help protect the United Kingdom from international terrorism. If internment was put onto the face of the Bill, there could be an occasion when, working together with Dublin and possibly all the political parties in Northern Ireland, including Sinn Fein/IRA and the republican movement, a decision is taken secretly and decisively that certain people should be quickly picked up, taken out of Ireland and interned for as long as it takes to deal with a situation. If internment was on the statute book, I believe it would be possible to save many lives and to save a significant increase in destruction.

Furthermore, for those concerned with human rights, as indeed I am, as one is duty bound to be, there is an inordinate amount of protection in the old Act for those arrested under internment legislation. It would not be dealt with lightly. The powers are already available to lift/arrest people for a short period of time. I cannot remember the number of days. However, I believe there are up to 40 weeks before the internment procedure would have to be turned on and decisions made as to whether such people were arrested and interned for a considerable time.

In summary, I believe that this would be in the interests of the safety of this country, Northern Ireland, and perhaps even Ireland. The Irish Government could not use internment if we did not also do so. I believe that is the present political situation. If tucked away in this Bill, the amendment could become a powerful weapon in the fight against future Irish terrorism. I believe that we now have the intelligence services and technology to use it intelligently and selectively. I beg to move.

3 p.m.

Lord Goodhart

To those on these Benches, the amendments are completely unacceptable, both on practical and legal grounds. Detention or internment, as the noble Lord, Lord Glentoran called it, was, as we all know, tried at an early stage of the troubles in Northern Ireland. It caused immense not only among the republicans but among the whole of the nationalist population in Northern Ireland. It was an immensely powerful recruiting sergeant for the IRA. I believe that if detention was re-introduced in the context of Northern Ireland, it would have exactly that effect again. It also caused immense ill will among the people of the Republic of Ireland.

I believe that detention in Northern Ireland, even if introduced at the same time as detention in the Republic of Ireland, would seriously risk creating the same level of once again. It is a blunt instrument which does a great deal of damage, not only to the people it is intended to damage but to the whole community in Northern Ireland.

It was abandoned after a relatively few years. Even if it remained on the statute book, it was never brought back during the 18 years of Conservative government starting in 1979. I believe that it would be disastrous on practical grounds.

Legally, there is a plain conflict between the amendments and Article 5 of the European Convention on Human Rights. Under that article, detention is permitted only after conviction or pending trial. The amendments would allow the Secretary of State to order detention for an indefinite period without trial on the basis of a report by an adviser. If a detainee does not ask for his or her representations to be submitted to the adviser, there will not even be a report.

The post of adviser is not a judicial office and proceedings before an adviser are not judicial proceedings. It is true that judicial review of a decision of the Secretary of State under these amendments would not be excluded. But judicial review, with its difficult test of irrationality, would not be enough to satisfy Article 5 of the European convention.

It is true that a crisis could arise which was so acute that detention was a reasonable cause of action. The detention of Sir Oswald Mosley and other Nazi supporters in 1939 was plainly justified by the level of crisis prevailing at the time. Both the European convention and the Human Rights Act recognise that special circumstances of that kind may arise by allowing derogation in time of war or other public emergency threatening the life of the nation. But that derogation must be only to the extent strictly required by the exigencies of the situation. Those powers can be found in Article 15 of the European convention and in Sections 14 to 18 of the Human Rights Act.

A derogation from Article 5 to authorise the detention of suspected terrorists for a period up to seven days without access to the court has been upheld by the European Court of Human Rights in the Brannigan case. So the European court recognises that special circumstances may occur. If the power of detention under these amendments could be exercised only after the Secretary of State made a derogation order under the European convention and under the Human Rights Act, and if that power was also subject to an affirmative resolution of both Houses to confirm it within 40 days of its coming into effect, then I accept that our objections would be a good deal less strong. But it is arguable that, even so, the breach of a right to liberty is so fundamental that the insertion of a power of detention should require primary legislation.

In a real crisis, as it has shown on many occasions before and several times in relation to Northern Ireland, Parliament can act very quickly. And I find it difficult to understand why the Conservatives have not linked their proposal to insert a power of detention into the Bill to the making of a derogation order. As the amendment now stands, we have no hesitation in opposing it. We believe that it is both contrary to the law and, in practical terms, presents no advantage whatever.

Lord Monson

Before the noble Lord, Lord Goodhart, sits down, can he say whether or not the Irish Republic retains the power to intern on its statute book?

Lord Goodhart

I cannot speak for the Irish Republic in saying why it retained that power of detention. The Irish Republic, like ourselves, is party to the European Convention on Human Rights. In the circumstances, since plainly there is no immediate threat to the nation, any exercise of the power of detention by the Irish Republic would not pass the European court.

Lord Desai

I rise briefly to say that one argument against the noble Lord's amendment is that internment did not work last time. It will add problems to the present delicate situation and we are better off without it.

3.15 p.m.

Lord Mayhew of Twysden

It seems to me that those who have held office, especially myself, go back to that period of office to illustrate any point they want to make and I am sorry not to be able to avoid that today. However, perhaps the Committee will indulge me for a brief time.

It was always in the back of my mind when I had the privilege of implementing the policies of the government in which I served that a number of extra miles could justifiably be travelled, and I believe that those miles have been travelled to beneficial effect. But it was also in my mind that at the end of that process we would probably be left with a hard core of extremely evil, violent, fanatical people. I am afraid that recent events have shown that the latter part of that expectation has been fulfilled.

Of course, I agree with the noble Lord, Lord Goodhart, about the undesirability of having to derogate from the European Convention on Human Rights if that were necessary, but he reminded us, fairly, that we have already done that and had that derogation upheld by the court. To do that impinges upon the human rights of liberty. But it also impinges upon the human rights of liberty, and indeed of life, if one happens to be a visitor or townsperson in Omagh when the Continuity or Real IRA explodes a bomb which kills or maims oneself or one's family. Not for the first time, therefore, we must strike a balance.

I welcome the close relationship that the present Government have, and indeed my government had though I am sure that that has been developed by the present Government, with the Republic of Ireland. That relationship ought to enable the Minister to answer the question already alluded to this afternoon as to why the Republic of Ireland retained internment on its statute book. After all, it has made much wider use of detention than the United Kingdom ever did in Ireland, and it must be said much better use—that would not be difficult for the reasons already mentioned by my noble friend Lord Glentoran. But in the legislation introduced following the Good Friday agreement, it was notable that the republic did not take the opportunity to remove from the statute book the power to detain within its jurisdiction. Why not? The answer will have an important bearing on the decision of the Committee if there is a Division on that question today. I hope therefore that the Minister can give us an answer. No doubt the question has already been raised with him and it will not be a breach of confidence for him to tell us.

It is axiomatic that, if detention is to be of any use at all, it has to be available on both sides of the Border to be implemented at one and the same time. I am aware of the disadvantages of detention. In considering the amendment I was troubled by the undoubted discord that it would occasion at a time when there are propitious signs for advance. But I always believed it to be right to retain it, for the reasons I have tried to advance. Indeed, I opposed its removal by the present Government two or more years ago. Unless I hear a compelling response from the Minister, recognising the disadvantages, I feel that the balance now lies in favour of restoring detention.

Lord Dubs

We have debated the question of internment in this Chamber on more than one occasion in the past three years. On each occasion it was felt appropriate not to restore that power. I am not persuaded that anything has changed which suggests that it should now be brought back. After all, the devolved Assembly is back in operation—it met for the first time yesterday following the restoration of powers to the Executive. At this time of all times, to say that we will take powers possibly to use them in circumstances undefined would be provocative and would be misunderstood in the whole of Northern Ireland. It would be seen as a signal of the Government's possible intention to give effect to internment.

I think the onus is on the noble Lord, Lord Glentoran, and those who support him to indicate the circumstances in which a power of this kind could be used. It is hard to find any. The noble and learned Lord, Lord Mayhew, had the power of internment at his disposal during the years he was Secretary of State for Northern Ireland. Yet—and perhaps he can tell us—I am not aware that there was any occasion during his time in office, and indeed during the time of two or three of his predecessors, when it was thought appropriate to give effect to the power of internment. If it were not necessary in the days when the IRA was unleashing its campaign of bombs and murder, I do not understand why we need to have it now when the IRA is on cease-fire and when we are left with a small number of dissident groups—one or two on the republican side and one or two on the loyalist side—who are not on cease-fire.

Lord Mayhew of Twysden

The noble Lord has invited me to intervene. I was in the process of travelling the extra miles and those extra miles have now been travelled to very beneficial effect. Still we have the very evil hard core. Next time it may not be two pounds under Hammersmith Bridge; next time it may be an attack which replicates or even goes further than what occurred in Omagh. That is the only kind of occasion for which it would be appropriate.

Lord Dubs

I understand what the noble and learned Lord is saying, but I still do not agree that it would be appropriate to use internment in such circumstances. Over the years we have had terrible outrages—with perhaps not as many people killed and injured as at Omagh—yet it was not thought appropriate to intern the perpetrators in so far as they were known to the Government and to the intelligence services. Today, we mercifully have only a small number of individuals involved in terrorist organisations that are not on cease-fire and it seems to me that it is therefore not the time to use such an onerous power against them, nor indeed has it been suggested today that we should use it.

I ask again: in what circumstances would the noble and learned Lord suggest that we use such a power? Without that guidance, it is hard to think of a situation when we, as a country, would wish that power to be used in our name, unless the noble and learned Lord is suggesting that that power would be used immediately.

For a country that believes emphatically in the rule of law to abdicate that belief in legislation on the supposition that at some unstated point in the future we alight wish to use it is not the right way forward. I believe the Government are right to resist reintroducing the power of internment. At the moment, there is no reason for us to have that power on the statute book and I hope that the House will resist the amendment.

Lord Marlesford

The noble Lords, Lord Dubs and Lord Goodhart, said that when the power was used in the 1970s it was counterproductive; that it was a recruiting sergeant for violence; and that it was later not used. Surely the answer to them is that we have moved on a very long way since then in two important respects.

First, the main protagonists on the nationalist side—Sinn Fein/IRA—has agreed, by joining the Executive and by taking part in the power sharing, not to continue with terrorist tactics. Secondly, the co-operation and collaboration between Her Majesty's Government and the Government of the Republic of Ireland is at a level totally different from what it was in those early days. It seems to me that the answer which should be given by the Minister is not only as to why the Republic of Ireland has thought it necessary to retain this power but also whether the Republic would feel it would be helpful for us to have this power to deal with a minority so small, so violent, so irrational and so evil that they appear even to be abandoned by Sinn Fein/IRA.

Lord Richard

I did not intend to take part in this debate at all but I am bound to say that, having listened to some of the speeches that have been made on the other side of the House, I am profoundly disturbed at the possibility that this Committee may divide on the issue.

I make one point from my past experience, as the noble and learned Lord, Lord Mayhew, did from his. I sat on that side of the House when we were in Opposition and gave strong support in almost totality for the policies which the then government were promulgating. It was not an easy thing to do. From time to time I was considerably disturbed at the fact that my party had pledged that sort of support for the then government, of whom the noble and learned Lord, Lord Mayhew, was such an ornament. However, we did it, and I find the idea that, at this time when events in Northern Ireland are at a stage of such delicacy, the Conservative Opposition are going to divide this House on the issue of whether internment should be restored a staggering proposition.

I make two other points on this issue. The noble Lord, Lord Glentoran, started his speech by saying that the Irish Government still have this power and that therefore we should have it. I am not actually aware—I may be wrong because I am not privy now to the intelligence sources that the noble Lord, Lord Glentoran, in opposition obviously is—that the Irish Government are agitating very hard that the British Government should reintroduce this provision. I have not heard very much coming out of Dublin to say that there is this imbalance across the Border which necessitates us now to reintroduce a policy which has proved a failure in the past. It was a failure.

Lord Glentoran

That was a slight misinterpretation of a point that I made. I made the point that the Irish Government have retained the right to internment. I did not suggest that they had made recommendations or suggestions that we should do the same. But I made the point that they cannot use that power if we do not have it available, and I gave several examples of how it may want to be used.

Lord Richard

I hear what the noble Lord says. But I do not think the point is given greater force by repetition, if I may put it that kindly. It seems to me that the argument was that the Irish have the power; the British do not have the power; and that somehow that creates an imbalance and a difficulty which we should put right. I do not believe that. I have not detected any great sense of urgency on the part of the Irish Government that this imbalance should be corrected and that this anomaly should be removed.

The final point I would make is simply this. I cannot imagine—I can imagine some things, but this is in the category of those that I find difficult to imagine—anything more provocative to the republicans or the nationalists in Northern Ireland than the reintroduction of internment by the British Government. It is all very well for the noble Lord, Lord Marlesford, to say that Sinn Fein is now part of the establishment in Northern Ireland and therefore it would not be directed at it; it would be directed only at the dissident fringes. I do not believe that is how it would be received at all in Northern Ireland. It would be received, if it were to be reintroduced, with great joy on the part of some dissident unionists and absolute rejection on the part of most nationalists, moderate and extreme.

I hope that the Opposition will ponder very hard indeed before they go down the road which appears to be indicated this afternoon. This is not a time and this is not an issue upon which this House should divide.

3.30 p.m.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton)

The noble Lord, Lord Glentoran, puts his case clearly and simply. He says that his proposed amendment is in the interests of safety because the Irish Government have that power and they could not use it if we do not have the power. He said that having this amendment could be a very valuable weapon "tucked away" in this Bill.

First, as regards the position of the Irish Government, the Irish Government have commissioned a wide-ranging, independently chaired review of their offences against the state legislation, including the internment powers. That review is in accordance with what was agreed in the Good Friday agreement. So with the greatest respect to the noble and learned Lord, Lord Mayhew, the fact that they did not repeal the powers immediately after the Good Friday agreement is not necessarily as strong a point as he suggested.

I understand that it may be some months before the review reports. The offences against the state legislation is complex and covers a wide range of police powers and court procedures. So it is more than simply a matter of considering the internment power. It is right to say that the Irish have the internment powers now. Whether they are retained remains to be seen. Obviously, I cannot speak for the Irish Government.

Finally, the Irish Government have exerted no pressure whatever on the UK Government to introduce those powers. The noble Lord, Lord Glentoran, said—in my view, rightly—that the Irish Government were wise in a number of areas in that respect. The fact that they are not pressurising us in any way to reintroduce internment brings its own message.

Secondly, he says that having this provision would be a very valuable weapon "tucked away" in this Bill. We need to examine that proposition very carefully indeed. The Government's position remains that while we never say "never", we remain to be convinced that internment could be an effective security policy. That is why we removed the power in 1998 in accordance with our previously given commitment. We still remain firmly of the view that reintroducing the internment powers at this time would be a retrograde step. I welcome the line taken by the noble Lord, Lord Goodhart, and others in that respect.

Perhaps we may, for a moment, take stock of where we are today. We are in the very welcome position that devolution has recently returned to Northern Ireland. It is hoped that the implementation of the Good Friday agreement, in full, is in sight. Indeed, this Bill is a reflection of the Government's commitment under the agreement to remove emergency powers as soon as it is safe to do so.

In that context, we need to consider very carefully indeed the value of the amendments. In our view, they would mark a significant backward step at a time when we are normalising the security situation in Northern Ireland.

In advancing his argument, I think that it is incumbent on the noble Lord, Lord Glentoran, to answer a few points. What signal would it send out at this time to return these powers to the statute book? In what way does he think it would build security and confidence in our security policy? I reject the proposition that this measure is necessary to protect the democratic institutions. We have a firm and fairly applied security policy in Northern Ireland which must be recognisably within the rule of law if we are to maintain public confidence.

We need to consider also in what circumstances the powers would be used. We cannot and should not legislate for hypothetical situations. Again, I feel that it is incumbent on the noble Lord to set out his position on this point. When does he say that those powers would be used? It is not sufficient, as was said in another place, to advocate the reintroduction of those powers on a just-in-case basis or to rely on the argument that the powers send out a useful warning signal.

To put it bluntly, if we reintroduce those powers we must be prepared to use them. The amendments take us in the opposite direction to the policy of normalising the security situation in Northern Ireland. As the noble Lord, Lord Goodhart, pointed out, their use would require a derogation from the European convention.

The noble Lord must consider the significant downside to what may be a short-term security gain if those powers were used. As has been acknowledged throughout the course of the debate, it is widely accepted that the last operation of the internment powers led to significant recruitment by the terrorist organisations. It does not necessarily follow that better intelligence and targeting of the powers would avoid similar consequences today.

We must also consider the effects on the wider community. Of course, the vast majority of people in Northern Ireland would not be tempted to join a terrorist organisation in any circumstances. But what damage would be done to their faith in the peace process if the Government took such a draconian step? Can the noble Lord imagine moderate opinion on both sides of the community supporting such a measure? For a short-term gain we may face a long-term worsening of cross-community relations and a lack of faith in the Government's security policy. I think it is rather optimistic to describe the power as being "tucked away" in this Bill.

I appreciate that the amendments are tabled with a genuine concern for the maintenance of a good security situation in Northern Ireland. But in this climate, we do not believe that the amendments are helpful. In fact, they would be damaging. As I said at the outset, our position remains that we would never say "never", but we believe firmly that there is no call for these provisions at this time.

I hope that the noble Lord will consider very carefully indeed his position in relation to the amendments and will not press them.

Lord Cope of Berkeley

The noble Lord, Lord Richard, said that, when in opposition, he had supported the policy of the Conservative government. But that is not entirely true of the Labour Party in another place, as I have good reason to recall.

But it is also the case that, from these Benches, both in this place and another, throughout the past several years since 1997, we have supported the Labour Government in what they have done. We have done so with hope at all times, sometimes with a heavy heart and sometimes by giving advice, both privately and publicly, as to how we thought matters should operate. But, nevertheless, we have given a great deal of support. That does not necessarily mean that we should for ever support the Government in whatever they do without making any differences at all.

But this is a particular difference which we are now considering. The noble Lord, Lord Goodhart, spoke of the European convention derogation and so on. I believe that for a number of years the Northern Ireland situation has been, and still is, a potential public emergency threatening the life of the nation— I use the words of the convention. After all, the basic objective of Sinn Fein/IRA concerns the integrity of our national territory. It is about whether part of our national territory should be taken away and put under another jurisdiction against the wishes of the majority of the inhabitants there. That is what this argument is all about. In my judgment, that is a threat to the life of the nation which is supported, from time to time violently, by a very small number of people but, nevertheless, a number capable of doing a great deal of damage.

I should not object to at least some modification of the detail of the amendment; for example, the affirmative order to which the noble Lord, Lord Goodhart, referred. But that does not go to the nub of the question. I am not arguing about the precise detail of the amendment before us.

We have been asked a number of times—and have endeavoured to explain a number of times—about the circumstances in which we think it likely that executive detention, internment, might be a valuable addition to security policy. I cannot add much to what was said by my noble friend Lord Glentoran and my noble and learned friend Lord Mayhew about the possible scenario in which we continue to have a successful Assembly and Executive but in which there are still a small number of very evil dissidents who resist what is happening.

As has been pointed out, we have seen them in action this time round, as it were, in Omagh, and on Hammersmith Bridge just the other day. Irish history tells us that that has happened on almost every occasion when there has been an agreement of some sort in the past. It is highly likely that we shall be faced with small groups capable of extreme violence.

Those are the circumstances in which internment may be necessary because of the great difficulties—of which we have had 30 years' experience, if not more—which exist in convicting terrorists in the normal courts of law, even as modified—the Diplock courts and so on. As my noble and learned friend Lord Mayhew pointed out, they threaten the rights of those people who get mixed up in their ghastly acts; as, indeed, their own rights are threatened by this amendment and the powers that it represents.

None of us supposes that what we are suggesting by way of this amendment should be used next week, next month or whenever. We are not suggesting a precise scenario or that the power should be effective at once; we are suggesting that it should be a reserve power and that it should be retained. It is in fact retained because it is still in primary legislation, even though it was not renewed the last time out, as it were, by secondary legislation. We need to retain the power because, unless it is in primary legislation, it cannot be used.

Internment would not be a success without a number of factors being present, some of which have already been mentioned; for example, it would not be a success without the co-operation of the Republic of Ireland. Moreover, as we have heard, it would require extremely good intelligence and its operation needs to be absolutely sudden. It cannot wait even for accelerated primary legislation to pass through this and the other place. Should the Government wish to do so—they have done so occasionally—the fastest that we can pass any Bill and put it on the statute hook is about a day, or so. But a day is enough for the individuals concerned to vanish, go underground and make the internment ineffective in the first instance. Indeed, it would probably continue to be ineffective. That is why the power needs to remain, so to speak, under the counter.

There is another effect to which I have drawn noble Lords' attention on previous occasions when we discussed the matter. I refer to the fact that the very existence of the power makes operations more complex for evil groups, because the very thought that it might be introduced makes them take precautionary measures which make their lives more difficult.

The Minister said that the Government would "never say never", but, if we do not have this power in the Bill, we are in effect saying "never" to internment because we could not introduce it as primary legislation and expect to be able to use it the following day. For all those reasons, I believe it is important for us to retain the power on the statute book. I commend the amendment to noble Lords and wish to test the opinion of the Committee.

3.42 p.m.

On Question, Whether the said amendment (No. 164) shall be agreed to?

Their Lordships divided: Contents, 83; Not-Contents, 156.

Division No. 1
Alexander of Weedon, L. Lamont of Lerwick, L.
Ampthill, L. Lane of Horsell, L.
Anelay of St. Johns, B. Lawson of Blaby, L.
Astor of Hever, L. McColl of Dulwich, L.
Attlee, E. McConnell, L.
Blackwell, L. Marlesford, L.
Blaker, L. Marsh, L.
Boardman, L. Mayhew of Twysden, L.
Brabazon of Tara, L. Miller of Hendon, B.
Bridgeman, V. Molyneaux of Killead, L.
Brougham and Vaux, L. Monson, L.
Buscombe, B. Montrose, D.
Butterworth, L. Mowbray and Stourton, L.
Byford, B. Murton of Lindisfarne, L.
Caithness, E. Northbrook, L.
Northesk, E.
Campbell of Croy, L. Onslow, E.
Carnegy of Lour, B. Oxfuird, V.
Clark of Kempston, L. Peyton of Yeovil, L.
Cope of Berkeley, L. Platt of Writtle, B.
Courtown, E. Plumb, L.
Cox, B. Rawlings, B.
Crickhowell, L. Rawlinson of Ewell, L.
Dean of Harptree, L. Reay, L.
Denham, L. Renfrew of Kaimsthorn, L
Dixon-Smith, L. Roberts of Conwy, L.
Elles, B. Rogan, L.
Elliott of Morpeth, L. Seccombe, B. [Teller]
Erroll, E. Shaw of Northstead, L.
Flather, B. Skelmersdale, L.
Glentoran, L. Strathclyde, L.
Gray of Contin, L. Swinfen, L.
Haslam, L. Taylor of Warwick, L.
Henley, L. [Teller] Tebbit, L.
Hooper, B. Thomas of Gwydir, L.
Howe, E. Trefgarne, L.
Howell of Guildford, L. Trumpington, B.
Hurd of Westwell, L. Wade of Chorlton, L.
Jenkin of Roding, L. Warnock, B.
Kimball, L. Wilcox, B.
Kingsland, L. Willoughby de Broke, L.
Laird, L. Young, B.
Addington, L. Avebury, L.
Ahmed, L. Bach, L.
Andrews. B. Barker, B.
Archer of Sandwell, L. Barnett, L.
Ashley of Stoke, L. Bassam of Brighton, L.
Ashton of Upholland, B. Beaumont of Whitley, L.
Bernstein of Craigwell, L. Lea of Crondall, L.
Billingham, B. Lipsey, L.
Blackstone, B. Lloyd of Berwick, L.
Blease, L. Lofthouse of Pontefract, L.
Blood, B. Lovell-Davis, L.
Borrie, L. McCarthy, L.
Bragg, L. Macdonald of Tradeston, L.
Brennan, L. McIntosh of Haringey, L.
Bridges, L. McIntosh of Hudnall, B.
Brookman, L. MacKenzie of Culkein, L.
Bruce of Donington, L. Mackenzie of Framwellgate, L
Burlison, L. Mackie of Benshie, L.
Carnarvon, E. McNally, L.
Carter, L. [Teller] Mallalieu, B.
Chandos, V. Miller of Chilthorne Domer, B
Christopher, L. Mitchell, L.
Clarke of Hampstead, L. Molloy, L.
Cledwyn of Penrhos, L. Morris of Castle Morris, L.
Clement-Jones, L. Morris of Manchester, L.
Clinton-Davis, L. Nicol, B.
Cohen of Pimlico, B. Northover, B.
Colville of Culross, V. Oakeshott of Seagrove Bay, L.
Craig of Radley, L. Oliver of Aylmerton, L.
Davies of Coity, L. Palmer, L.
Desai, L. Patel, L.
Dholakia, L. Patel of Blackburn, L.
Dormand of Easington, L. Peston, L.
Dubs, L. Pitkeathley, B.
Eatwell, L. Plant of Highfield, L.
Elder, L. Prys-Davies, L.
Evans of Parkside, L. Ramsay of Cartvale, B.
Evans of Temple Guiting, L. Rea, L.
Evans of Watford, L. Redesdale, L. [Teller]
Falconer of Thoroton, L. Rendell of Babergh, B.
Farrington of Ribbleton, B. Richard, L.
Faulkner of Worcester, L. Rodgers of Quarry Bank, L.
Filkin, L. Roper, L.
Fyfe of Fairfield, L. Sainsbury of Turville, L.
Gale, B. Sandwich, E.
Geraint, L. Sawyer, L.
Gibson of Market Rasen, B. Scotland of Asthal, B.
Gilbert, L. Scott of Needham Market, B.
Gladwin of Clee, L. Sewel, L.
Goodhart, L. Sharp of Guildford, B.
Gordon of Strathblane, L. Shepherd, L.
Sheppard of Liverpool, L.
Goudie, B. Shutt of Greetland, L
Gould of Potternewton, B. Simon, V.
Grabiner, L. Slim, V.
Graham of Edmonton, L. Smith of Clifton, L.
Greaves, L. Smith of Gilmorehill, B.
Greengross, B. Smith of Leigh, L.
Grenfell, L. Stone of Blackheath, L.
Hamwee, B. Strabolgi, L.
Harris of Greenwich, L. Taylor of Gryfe, L.
Haskel, L. Tenby, V.
Hayman, B. Thomas of Walliswood, B.
Healey, L. Thomson of Monifieth, L.
Hogg of Cumbernauld, L. Thornton, B.
Hollis of Heigham, B. Tomlinson, L.
Howells of St Davids, B. Tope, L.
Hoyle, L. Tordoff, L.
Hughes of Woodside, L. Turner of Camden, B.
Hunt of Chesterton, L. Uddin, B.
Hunt of Kings Heath, L. Varley, L.
Hylton-Foster, B. Walmsley, B.
Irvine of Lairg, L. (Lord Chancellor) Weatherill, L.
Wedderburn of Charlton, L.
Jacobs, L. Whitaker, B.
Jeger, B. Whitty, L.
Jenkins of Hillhead, L. Wilkins, B.
Jenkins of Putney. L. Williams of Crosby, B.
King of West Bromwich, L. Williams of Mostyn, L.

Resolved in the negative, and amendment disagreed to accordingly.

3.53 p.m.

Clauses 96 to 98 agreed to.

[Amendment No. 165 not moved.]

Schedule 11 agreed to.

Clause 99 agreed to.

Clause 100 [Video recording: code of practice]:

Lord Bassam of Brighton moved Amendment No. 166:

Page 48, line 31, at end insert ("if they take place in a police station (within the meaning of Schedule 8)").

On Question, amendment agreed to.

Clause 100, as amended, agreed to.

Clauses 101 and 102 agreed to.

Schedule 12 agreed to.

Clauses 103 to 106 agreed to.

Schedule 13 [Private Security Services]:

Lord Bach

moved Amendment No. 167: Page 136, line 33, after ("Chancellor") insert ("by statutory instrument"). The noble Lord said: Amendments Nos. 167 and 168 are drafting amendments. These amendments include those recommended by parliamentary counsel and make drafting improvements to the Bill.

Amendment No. 167 is a drafting amendment to put beyond doubt the status of the Lord Chancellor's rules and to ensure consistency with other references in the Bill. The rules in question are made under the Northern Ireland Act 1998 and relate to the national security certificate tribunal established under that Act. Amendment No. 168 is a technical amendment. I beg to move.

Lord Cope of Berkeley: I realise that Amendment No. 168 is highly technical but it would help the Committee if the noble Lord explained what it seeks to achieve. It appears to concern certificates of the Secretary of State which relate to licences and other matters being sent by post. It seems odd to have a special regime to deliver such certificates.

Lord Bach

I am not certain what the answer to the noble Lord's point is. If it reaches me shortly, I shall tell him what it is; if not, I shall write to him in due course.

Lord Cope of Berkeley

I look forward to receiving a letter.

On Question, amendment agreed to.

Lord Bach

moved Amendment No. 168: Page 138, line 45, leave out ("(4)") and insert ("(3)"). On Question, amendment agreed to.

Schedule 13, as amended, agreed to.

Clause 107 [Specified organisations: interpretation]:

Lord Glentoran

moved Amendment No. 169: Page 51, line 6, at beginning insert ("either— (i)"). The noble Lord said: In moving Amendment No. 169, I wish to speak also to Amendments Nos. 170 and 171. These amendments seek to strengthen and—if I may say this without causing offence—to tidy up the provisions concerning proscribed organisations under the Bill and specified organisations under the Northern Ireland (Sentences) Act 1998.

As the Bill stands, only organisations that are specified under the Northern Ireland (Sentences) Act 1998 and are also proscribed under the Bill would be subject to some of the emergency legislation introduced after Omagh. Organisations such as the IRA, the UVF and the UDA would be excluded. We do not feel that this can be justified. Our amendments would tighten the definition for specification under the Terrorism Bill to include organisations that are not, for example, decommissioning their illegally held arms and explosives. In short, we want to remove from this Bill the subjectivity in the Northern Ireland (Sentences) Act.

The Bill defines a specified organisation as one which is specified under the Northern Ireland (Sentences) Act 1998 and is, or forms part of, an organisation which is proscribed for the purposes of the Bill and is therefore listed in Schedule 2. At present the Real IRA, the INLA, the Provisional IRA and Continuity IRA are not proscribed. In order to be specified under the Terrorism Bill an organisation has to be both specified under the Northern Ireland (Sentences) Act and—

Lord Falconer of Thoroton

Continuity IRA and the Real IRA are proscribed under that Act.

4 p.m.

Lord Glentoran

I thank the noble and learned Lord for that. Can he therefore confirm that "The Irish Republican Army", which is at the top of the list in Schedule 2, includes all those organisations?

Lord Falconer of Thoroton

Only four organisations are specified under the Northern Ireland (Sentences) Act—the Real IRA, the Continuity IRA, the Red Hand Defenders and the Orange Volunteers. Perhaps I have misunderstood what the noble Lord said and my intervention was badly judged, but those are the only four organisations specified under the Northern Ireland (Sentences) Act.

Lord Glentoran

Perhaps I may recap what the noble and learned Lord said. Under the Northern Ireland (Sentences) Act we have the Continuity IRA, the Real IRA, the Orange Volunteers and the Red Hand Defenders; we do not have the INLA or the LVF because they have been despecified.

This is where the confusion arises. As I understand it—I shall go back to my script because the matter is quite complicated—the Bill defines a specified organisation as one which is specified under the Northern Ireland (Sentences) Act and is, or forms part of, an organisation which is proscribed for the purposes of this Bill. Therefore, as I understand it, the organisations on the list of those specified also have to be proscribed. According to my reckoning, the Real IRA, the INLA and the Provisional IRA are not currently in Schedule 2.

It is a matter of some detail. As we are all a little at sixes and sevens on this—I spent some time trying to sort it out—there is room for confusion.

In order to be specified under this Bill, an organisation has to be both specified under the Northern Ireland (Sentences) Act and proscribed under the Terrorism Bill. As I understand it, Clauses 108 to 111 will be applicable only to an organisation that is specified under the Terrorism Bill. Under the Northern Ireland (Sentences) Act, organisations such as the IRA, UVF and UVA are not specified organisations and therefore would not be specified under this legislation. They would not therefore be subject to the powers available in Clauses 108 to 111. Given their failure to decommission, we feel that this cannot and should not be justified. The effect of both of our amendments would be to tighten significantly the criteria by which an organisation is specified and therefore subject to the powers available in Clauses 108 to 111. They will make specification automatic if any of the four factors in the Northern Ireland Sentences Act are not being satisfied. Those four factors are set out in Section 3(9) of the Act. It states: In applying subsection 8(b) the Secretary of State shall in particular take into account whether an organization— (a) is committed to the use now and in the future of only democratic and peaceful means to achieve its objectives; (b) has ceased to be involved in any acts of violence or of preparation for violence; (c) is directing or promoting acts of violence by other organisations; (d) is co-operating fully with any Commission of the kind referred to in section 7 of the Northern Ireland Arms Decommissioning Act 1997"— known as the de Chastelain commission— in implementing the Decommissioning section of the agreement reached at multi-party talks on Northern Ireland set out in Command Paper 3883". These amendments would not remedy the defects in the Northern Ireland (Sentences) Act but they would avoid repeating them in this Bill. Our Amendments Nos. 169 and 170 would ensure that an organisation was automatically specified under this Bill if it failed to satisfy any one of those four factors.

Amendment No. 171 would ensure the automatic specification of any organisation that failed to fulfil its obligations to decommission its illegal arms and explosives under the decommissioning section of the Belfast Agreement—that is, the complete disarmament of all paramilitary organisations". We have discussed which are the specified organisations under the Northern Ireland (Sentences) Act and which are the proscribed organisations under the Terrorism Bill.

As I understand it, the present arrangement in the Bill allows for significant discrepancy and for the possibility of setting up two classes of terrorists—that is, those who are subject to Clauses 108 to 111 of the Terrorism Bill and those who are not subject to those clauses.

I apologise if it sounds rather complicated. I have done my best to explain, but it is a somewhat difficult area. I look forward to the Minister explaining it all very simply. I beg to move.

Lord Molyneaux of Killead

The Committee should be grateful to the noble Lord, Lord Glentoran, and his co-sponsors of these amendments. Over hundreds of years your Lordships' House has developed a tradition—which I am sure the noble and learned Lord the Attorney-General supports—of being precise, particularly in matters affecting the law of the United Kingdom. That is why, collectively as a House, we do our best to distil matters, over a period of careful consideration, into language that does not contain ambiguity. If I may say so, I think we succeed in that.

A problem has been indicated by the noble Lord, Lord Glentoran, which has pertained in Northern Ireland over the past three years or so and which runs a coach and horses through the laws which your Lordships go to so much trouble to make perfect. When a particular point is raised—be it on a security or a judicial matter—there is no calm deliberation such as we have in your Lordships' House. It appears to me, as an outsider, that spin doctors summon a gathering; they meet behind closed doors; they blind each other with endless forms of words; they are starved of sleep, and sometimes of food and drink; and in the end they achieve a form of words which appears to satisfy all present. But when they wake up the next day to what they have agreed, they get as many as four different versions of what they think they have achieved.

As I see it, that will be an on-going problem. I am not seeking to lay an additional burden on the noble and learned Lord the Attorney-General, but we are on firm ground in suggesting that we should define clearly what we mean. We should ensure that others tampering with the law in another place are not permitted to run amok and make a total mess of what has been achieved at great expense in terms of time and energy.

I support the noble Lord's amendments. I hope that the noble and learned Lord will be able to give an assurance that this matter will be looked at again. As the noble Lord, Lord Glentoran, said, I hope that the whole matter can be tightened up so that there cannot in future be different interpretations of even a single sentence.

Lord Falconer of Thoroton

I welcome the opportunity for a serious, detailed and precise discussion about these provisions, just as there was when they were introduced during special Sittings of Parliament in September 1998 following the terrible atrocity in Omagh. The Government recognise that these are indeed very serious provisions. Those are special provisions that can apply in respect of a certain number of specified terrorist organisations. We must also recognise the reality that they were introduced, and have been retained, in order to deal with very serious circumstances. We believe that they continue to represent a proportionate response to the serious threat posed by those groups which remain opposed to the peace process and are prepared to use serious violence, such as we witnessed at Omagh, to further their cause.

The intention behind the amendments is that organisations should be included within the scope of these additional powers if they fail to satisfy any of the four factors set out in Section 3(9) of the Northern Ireland (Sentences) Act, or if they have not implemented the decommissioning section of the Good Friday agreement. In response I would emphasise that these powers are not a political tool; they are hard-hitting additional powers designed to equip the RUC and the criminal justice agencies with the tools they need to combat those organisations which are violently opposed to the peace process in Northern Ireland.

They are draconian measures. The Government have said that before. We make no excuses for that. But we have a corresponding responsibility to ensure that they are targeted properly at those organisations that are prepared to carry out further atrocities, such as that experienced by the people of Omagh. That is why the Government have restricted the use of the powers against only those organisations that are not maintaining complete and unequivocal ceasefires. That is the test set out in Section 3(8) of the Northern Ireland (Sentences) Act, and that is why the Bill has a direct read-across from that legislation. That requires judgments to be made by my right honourable friend the Secretary of State, taking all the necessary factors and information into account—judgments which are kept under review in the light of the latest security information and intelligence. As Members of the Committee will be aware, these judgments have on one occasion been tested in court through the judicial review process and have not been found wanting.

Clause 107 requires—replicating the existing law—that for the special provisions to apply to an organisation it has to be specified under Section 3(8) of the Northern Ireland (Sentences) Act; that is, it has to be an organisation which is not observing the ceasefire. Presently there are four such specified organisations, the Real IRA, the Continuity IRA, the Red Hand Defenders and the Orange Volunteers. Those are organisations specified under Section 3(8) because they are not complying with the ceasefire. In addition, it has to be an organisation proscribed under Schedule 2 to the Bill. The first on the list of proscribed organisations is the Irish Republican Army. That would include the Real IRA, the Provisional IRA and the Continuity IRA, but only the Real IRA and the Continuity IRA are also specified under Section 3(8) as organisations that are not observing the ceasefire. So it is only to those two organisations—the Real IRA and the Continuity IRA within the rubric of IRA—that the special provisions apply.

It is a complicated explanation, but I believe it to be precise and I believe it to be tight. It is perfectly plain what the provisions are trying to do. They are targeting these additional powers only at those terrorist organisations which are not observing the ceasefire. We believe that to be a sensible approach. We are pushing the law to its limits with these draconian powers; and it is right that where one pushes the law to its limits, it should be properly focused and properly targeted. When these powers were introduced, we described them correctly as appropriate and proportionate. We said that because they were used in a targeted manner against those dissident groups opposed to peace. While these powers unfortunately remain necessary, as we judge them to be, it is vital that they also remain targeted appropriately. They should not be used as political levers. The proper place for the issue of decommissioning to be resolved is not through this legislation but through political negotiation. It was during thorough and painstaking negotiation that recent breakthroughs and progress were made.

The purpose of these provisions is to combat only those organisations which remain opposed to such progress. With that explanation, I hope that the noble Lord will not press his amendment.

4.15 p.m.

Lord Marlesford

I am sure that I am being very stupid—I apologise to the noble and learned Lord—but is he saying that in Schedule 2 on page 63 of the Bill, the first on the list, the Irish Republican Army, does not actually mean the Irish Republican Army but two other organisations which have in the past been associated with it?

Lord Falconer of Thoroton

No, I am not saying that. It is my fault for not explaining it adequately and clearly to the Committee. In order for the special post-Omagh rules to apply to a prescribed organisation, the organisation has to satisfy two tests: first, it has to be a specified organisation under Section 3(8) of the Northern Ireland (Sentences) Act. That means that it has to be an organisation which in the judgment of the Secretary of State is not complying with a ceasefire. Under the rubric "IRA", two bodies presently are specified organisations: the Real IRA and the Continuity IRA. So the first condition for the special provisions to apply is for the organisation to be a specified organisation under the Northern Ireland (Sentences) Act. Secondly, the organisation must be a proscribed organisation under Schedule 2 to the Bill. Under Schedule 2, the Irish Republican Army will include the Provisional IRA, the Real IRA and the Continuity IRA. As the Provisional IRA is not a specified organisation under the Northern Ireland (Sentences) Act, although it is a proscribed organisation under this schedule, it does not satisfy the requirements of Clause 107 of the Bill to make the special provisions apply to it. I am sorry that the explanation is so complicated, but that is how we get there.

Lord Swinfen

What will happen if an organisation currently on ceasefire withdraws from the ceasefire? What will happen if a completely new organisation is formed which announces that it will not be on ceasefire?

Lord Falconer of Thoroton

As far as concerns organisations which are presently on ceasefire but then cease to be on ceasefire, it will then be a matter for the Secretary of State, under Section 3(8), to determine whether it is a specified organisation in those circumstances; that is, one which is not complying with the ceasefire. If it becomes a specified organisation and is also proscribed under Schedule 2, the special provisions will apply to it. As to new organisations, I shall have to check to see what is the order-making power under the Bill. Perhaps I may write to the noble Lord in relation to that.

Lord Cope of Berkeley

Before we started the debate I thought I understood which organisations were in which category. I am now beginning to wonder. I apologise for pressing the noble and learned Lord further, but in response to my noble friend Lord Marlesford he explained that the Real IRA and the Continuity IRA were part of the Irish Republican Army as listed in Schedule 2 and therefore were covered because they were also covered by the other provision. So the Provisional IRA and, for that matter, any parts of the Irish Republican Army other than the two I have mentioned, remain proscribed organisations. It is illegal to belong to them or to wear their uniform. There are also other matters covered earlier in the Bill. On the other hand, however, the powers in this part of the Bill do not apply to them.

Perhaps I may put the following point to the Minister. Let us suppose that the authorities of the Irish Republican Army disown at some point the Real IRA and/or the Continuity IRA—after all, some people closely connected with the IRA as a whole have already criticised the Omagh and Hammersmith Bridge bombs. If the authorities of the Irish Republican Army were to do that, that would mean that the Real IRA and the Continuity IRA were no longer part of the IRA. We do not control who is part of the IRA; the IRA does. If the authorities of the Irish Republican Army threw them out, they would no longer be proscribed and for that matter no longer be covered by the provisions in this part of the Bill.

Lord Falconer of Thoroton

With great respect to the noble Lord, that is completely the wrong way in which to regard Schedule 2. That schedule contains the phrase, "The Irish Republican Army". The question here is: what does that rubric cover? It covers the Real IRA, the Provisional IRA and the Continuity IRA. It does not depend on the precise relationship between those three groups; the issue is whether they are part of an organisation that properly falls within the rubric of the Irish Republican Army. The answer is that they would be, irrespective of what the relationship has been. This is a mechanism. It does not, as it were, depend on the precise relationship between the various groups.

Lord Glentoran

I thank the noble and learned Lord for his patient explanation. I still feel that there is room for a degree of clarification and tidying up of the drafting here. After the earlier part of our debate on Schedule 2, I wrote to the noble Lord, Lord Bassam of Brighton, and I have received a response. I understand from that reply that Schedule 2 is to be amended and changed by an order to be brought in by the Government at a point soon after the Bill becomes an Act. For the purpose of today's debate, I should like to think over the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 170 and 171 not moved.]

Clause 107 agreed to.

Baroness Ramsay of Cartvale

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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