HL Deb 06 June 2000 vol 613 cc1078-103

5.6 p.m.

House again in Committee.

Clause 108 [Evidence]:

On Question, Whether Clause 108 shall stand part of the Bill?

Lord Goodhart

This clause replaces a section to a similar effect which was enacted in the Criminal Justice (Terrorism and Conspiracy) Act 1998. That Act was passed after a two-day debate in your Lordships' House at the beginning of September 1998 in the aftermath of the Omagh atrocity, obviously as emergency legislation. That special section has so far never been relied on in a court in the United Kingdom; and I have to say I believe that this Bill, as its successor, probably never will be, even if it is enacted. This clause, or rather its predecessor, was subjected to a devastating analysis in September 1998 during the debate of the noble and learned Lord, Lord Lloyd of Berwick, who I am glad to see in his place. I hope that he will repeat that analysis.

Therefore I shall try to be brief in speaking about this. On these Benches we believe that this clause is both improper as a matter of law and useless in practice. It is improper because it is surely for the court to decide whether an accused belongs to a proscribed organisation on the basis of the evidence before it. The opinion of a police superintendent, or a higher police officer, is not evidence of the accused's membership, even if you call it so.

What is happening is not that the police superintendent is giving evidence but that we are transferring part of the court's power of decision-making—the power to decide whether the accused is a member of a proscribed organisation—from the court to a police officer. Of course it is not a transfer of the whole of that power of decision but it does transfer an important element of it. The opinion of a police officer may, and no doubt will, be based on the evidence as presented to him.

But that opinion is not itself evidence; and whether the evidence justifies the opinion is a matter for the court and not for the police officer.

Under this clause, the police officer's opinion would still be treated as evidence, and possibly a crucial piece of evidence, even if that opinion were based on a belief in the probability rather than the certainty of its truth. The opinion could, and perhaps in a number of cases would, be based on an inadmissible confession. Unquestionably, as a matter of legal procedure, it is plainly inappropriate. It would no doubt be regarded as inappropriate in Strasbourg; and, unquestionably, it would be regarded—quite apart from the European Convention on Human Rights—as a breach of the fundamental tradition of the British legal systems.

Furthermore, it is not only improper, it is useless. Let us consider what will happen at the trial. The first questions which counsel for the accused will ask the police officer is, "What is the evidence you base your opinion on?" If the police officer says, "I'm sorry, I cannot tell you because of risk to our intelligence sources", almost inevitably the court, the judge having been trained in the judicial traditions of this country, will disregard the evidence as being unreliable and untrustworthy. In the unlikely event of the police officer saying what the grounds of his opinion are, counsel for the accused is entitled to say, "We want to hear the primary evidence from people who can give it, not evidence second hand from you, the police officer".

The clause was introduced in haste and should be repented of at leisure. It should never have been included in the 1998 Act; and it surely should be removed from the statute book now. I believe that Clause 108 should not stand part.

5.15 p.m.

Lord Lloyd of Berwick

I support the noble Lord. I can be brief because he has covered most, if not all, the arguments and I am in the process of losing my voice.

When the criminal justice Bill was before the House in September 1998, I was opposed to Clauses 1 and 2, which are reproduced in Clauses 108 and 109 of the Bill currently before the Committee, on the ground that they would achieve nothing in practice. However, I voted in favour of the Bill because in the aftermath of the bombing at Omagh it seemed to me that something was needed then, even if it were only a gesture. The time for gestures has now passed. There has been time to think again about Clauses 108 and 109. I had hoped that Clause 108 would have quietly disappeared never to be heard of again.

I shall not repeat the arguments which I sought to advance on the last occasion. They came to this: that no judge in Northern Ireland—I am lucky enough to know most, if not all, of them—would take account of the opinion of a police office, however senior, as to whether an accused was a member of a specified organisation unless he could back up that opinion with some evidence. Without evidence it is mere opinion, and mere opinion is worthless in a court of law except when it is given on expert grounds; and on this a police officer is not an expert.

The only evidence which a police officer could use to back up his opinion of the membership of an accused of a specified organisation would almost certainly be the evidence of an informer or other evidence from some secret source which could not be given in court. Therefore there could be no effective, meaningful cross-examination of the police officer on the opinion he had expressed.

If, perchance, a judge were to take account of an opinion of a police officer in these circumstances in convicting a defendant—let us bear in mind that the provisions apply to the conviction of a defendant as well as the committal of an accused for trial—such a conviction would almost certainly be upset on appeal because it would have been in part based on evidence which had not been given in open court and therefore would be contrary to any number of provisions of the Human Rights Act.

To make the opinion admissible in court is, I have to suggest to the Committee, a complete waste of breath. Earlier today the noble and learned Lord, Lord Falconer, described these two provisions as being hard hitting, additional powers. If by that description he refers to Clause 108, I can only disagree, sadly, with him. It hits, and will hit, nothing.

I am not surprised that Clause 108 has apparently not been used in a criminal court since it was enacted. In this Chamber one is not allowed even to think, "I told you so". I shall not say that but only that I am not in the least surprised it has not been used.

Lord Glentoran

I am sorry the noble Lord, Lord Richard, is not in his place. From this side of the Chamber, I rise to support the Government. Although we have an immense respect for the noble and learned Lord, Lord Lloyd, to say nothing of the noble Lord, Lord Goodhart, it would be inconsistent for me to attempt to persuade the Government to remoke these paragraphs in this part of the Bill which is clearly for Northern Ireland emergency situations.

Clause 108(3)(b) gives considerable protection. It states clearly that, the accused shall not be committed for trial, be found to have a case to answer or he convicted solely on the basis of the statement"— that is, the statement from the police officer. Those of us who work and live in Northern Ireland know only too well how unbelievably difficult it can be to get any evidence in time before a court. In that situation, and with the use of this part of the Bill that the Minister made clear, we support the Government.

Lord Falconer of Thoroton

The Government have never disguised the fact that these are serious provisions. As we acknowledged at the time they were introduced, they take the law to its very limits. Nevertheless, the Government believed then, and continue to believe now, that the provisions were an appropriate and proportionate response to the serious threat posed by active dissident groups opposed to the peace process.

That threat was demonstrated at its most deadly by the appalling events in Omagh on 15th August 1998. Despite all the existing legislation and the information and intelligence available to the security forces, it was not possible to prevent the bomb that detonated in the heart of Omagh on a busy Saturday afternoon, killing 29 innocent men, women and children. That atrocity reminded us all that there were extreme elements which were determined at all costs to frustrate the will of the people expressed in their support for the Good Friday agreement. It was vital that the governments took action, North and South.

Unfortunately, that threat has not gone away. Dissident groups remain violently opposed to peace. There have been a number of attacks in recent months in Northern Ireland and, although it is still too early to be definitive, last week's bomb attack at Hammersmith Bridge may also underline that the threat is still very real.

However, the Government also recognise the need to comply fully with our human rights obligations and with the natural requirements of fairness and justice. Our guiding principle is that where powers are introduced which go beyond the normal criminal law, as these undoubtedly do, appropriate safeguards must be built in to ensure that they are not used inappropriately.

I can assure the Committee that the judgments which were made in relation to the European Convention on Human Rights were made only after the fullest consideration, otherwise my noble friend Lord Bassam would not have made the declaration he did under Section 19 of the Human Rights Act. In that respect, it is important to note the safeguards which are in place in this clause.

First, Clause 108 requires that a police statement must be given by a senior officer of at least the rank of superintendent, and must be given orally, with the opportunity for cross-examination by either party or by the judge. That cross-examination can examine the basis on which the police officer makes his statement.

Secondly, subsection (3)(b) provides that an accused cannot be convicted solely on the basis of a police officer's statement. It must be corroborated by other evidence.

Thirdly, the clause provides only for the evidence of the admissible. It will be for the courts to determine what weight, if any, to give to such evidence and that will depend on the circumstances in particular cases. That is an important safeguard, as I hope that noble Lords will recognise.

Finally, as was discussed in relation to the earlier amendment, this provision is targeted very specifically at only a small number of organisations in Northern Ireland which remain wedded to violence. Currently, there are only four specified organisations to which Clauses 108 to 111 apply: the Real IRA, the Continuity IRA, the Orange Volunteers and the Red Hand Defenders.

I also remind Members of the Committee that these provisions are kept under review with regard to their continuing requirement. They can at any point be "switched off" by order. That review process will take account of the approach of the government of the Republic of Ireland to their equivalent provisions since cross-border co-operation has been an important factor in their history.

Like many noble Lords, I look forward to the day when stringent, indeed draconian, measures such as these can be removed from the UK statute book. I sincerely hope that that day is not far off. But I believe that it would be premature to dispose of an integral piece of our armoury at this stage. I commend Clause 108 to the Committee.

Lord Goodhart

I am grateful in particular to the noble and learned Lord, Lord Lloyd of Berwick, for his speech. He repeated the arguments which he persuasively addressed to the House in September 1998.

I am afraid that I am unable to accept that there are adequate safeguards in the Bill. First, the fact that the opinion must be that of a middle-ranking police officer—a superintendent—rather than someone more junior is not a form of safeguard. The safeguard in subsection (3)(b), that no one can be found to have a case to answer solely on the basis of the statement, is of little value, and it seems that there is a dilemma. If there is evidence to justify conviction without taking into account the opinion of the police officer, why give evidence of the police officer's opinion at all? If, on the other hand, the police officer's opinion is an essential piece of the jigsaw leading potentially to conviction, we shall run up against the problem pointed out by the noble and learned Lord, Lord Lloyd; namely, that no judge brought up in the traditions of the courts of Northern Ireland, which in this respect are plainly the same as those of Scotland, England and Wales, will accept that evidence as the basis for conviction. I talk about the "judge" because it is almost inevitable that such trials will be held under the Diplock procedure.

The fact is that any society which regards itself as governed by the rule of law, as we certainly do, must apply the rule of law even when it is inconvenient and frustrating for it to do so. And here I do not use the expression "human rights"; I use the expression "rule of law", which is a different and older tradition. It certainly goes back many centuries in this country. I do not believe that Clause 108 satisfies the tests of the rule of law.

It is not my intention today to seek to divide the Committee on Clause 108, but we may well return to the issue on Report. I withdraw my opposition to the Question that Clause 108 stand part of the Bill.

Clause 108 agreed to.

Clauses 109 to 115 agreed to.

Schedule 14 [Exercise of Officers' Powers]:

Viscount Bridgeman

moved Amendment No. 172: Page 139, line 19, leave out paragraph (e). The noble Viscount said: Amendment No. 172 refers to page 6, paragraph 32, of the report of the Delegated Powers and Deregulation Committee, which draws attention to the fact that Schedule 14 permits information obtained by authorised officers to be passed on to listed person or, to a person specified by order of the Secretary of State for use of a kind specified in the order". This is a probing amendment, but the Committee seeks an explanation of why these powers should be drawn in such wide terms. Our amendment seeks to restrict the width of those powers. I look forward to hearing the Minister's reply. I beg to move.

Lord Bassam of Brighton

I can well understand the thinking behind the amendment. Indeed, the Delegated Powers and Deregulation Committee in its report encouraged your Lordships' House to probe the need for such a wide provision allowing the Secretary of State to add by order to those to whom information acquired by examining or authorised officers might be made available and for what purpose. I hope that today I shall be able to allay any underlying concerns.

First, this type of provision is not novel. Indeed, a similar provision is to be found in Sections 21 and 22 of the Immigration and Asylum Act 1999 in relation to the supply of information acquired by immigration officers. I am sure that the noble Viscount is aware of that because I recall that his noble friend Lord Cope moved a similar amendment to that Bill when it was before your Lordships' House.

In the case of the Terrorism Bill, the provision concerns information acquired by an examining officer or an authorised officer. The point of the provision in both cases is, of course, to provide flexibility for the future, but with safeguards.

At the moment, the key frontier control agencies with which the police, as examining officers, work, and with which it makes good operational sense to exchange information, are Customs and Excise and the Immigration Service. Closer co-operation and working relationships between them are developing at all times. In addition, the police work closely with their colleagues in the National Criminal Intelligence Service and the National Crime Squad. All those organisations are named on the face of the Bill.

However, I believe that one can say fairly that in framing new anti-terrorist legislation we have tried as far as possible to be "future proof". We have added the new provision concerning the seizure of cash at borders by authorised officers. With that in mind, it seems prudent to us to provide the Secretary of State with a reserve power so that he can add extra agencies to the list if developments suggest that that might be operationally beneficial.

At the moment we do not plan to use the power. If we had other organisations in mind, of course we would name them on the face of the Bill. However, times change and links with other agencies may develop or relevant responsibilities may change. It could be to the general benefit of all concerned that the supply of information to other agencies is sanctioned.

The Bill proposes that the addition of a further agency to the list of those to whom information may be supplied should be subject to the affirmative resolution procedure. We consider that to be the appropriate level of scrutiny in these circumstances. It is an important power which concerns the passing of information to third parties and it is right that this level of safeguard is provided.

I hope that that explanation is clear and that the noble Viscount will not seek to press his amendment.

Viscount Bridgeman

I thank the Minister for that comprehensive reply, which we shall study carefully. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 14 agreed to.

Clause 116 agreed to.

Clause 117 [Consent to prosecution]:

5.30 p.m.

Lord Goodhart

moved Amendment No. 173: Page 54, line 36, leave out ("subsection (3)") and insert ("subsections (3) and (4)"). The noble Lord said: In moving Amendment No. 173, I shall speak also to Amendment No. 176, both of which stand in the names of my noble friends and myself. These amendments concern the question of whether it is appropriate for the Director of Public Prosecutions to consent to prosecutions in terrorist cases which are concerned mainly with overseas terrorism or whether that consent should be given, as we suggest, by the Attorney-General.

It will be a useful safeguard to require consent to be given at a high level to the prosecution of offences under the Bill. Of course, we welcome that. Clause 117 as it now stands requires that in all cases the consent be that of the Director of Public Prosecutions. Our view is that the consent of the DPP is indeed sufficient where the case relates to what I might describe as "internal terrorism". However, a prosecution, for example, for funding of allegedly terrorist activities outside the United Kingdom, or, to take another example, weapons training for overseas terrorism prosecuted under Clause 54, may raise very sensitive political issues.

If the organisation in question to which the accused person is said to belong is proscribed under the Bill, the decision is in some ways much simpler. The political decision regarding the justification of prosecution for membership of or activities under the aegis of that organisation will already have been taken by the Secretary of State when he made the proscription order. Therefore, we believe that in the case of prosecution for offences under Clauses 11 to 13, which come into play only when the relevant organisation is a proscribed organisation, the consent of the Director of Public Prosecutions is adequate. However, all the offences referred to in Amendment No. 176 can be committed by members of an organisation which is not proscribed.

At Second Reading of the Bill, I, as did a number of other speakers, touched on the difficulties concerning overseas terrorist organisations which conduct fundraising, organisational or other activities in this country. They raise the question of whether the activities of such an organisation are ones that we support to an extent which would make it inappropriate to prosecute, even if technically they come within the definition of terrorism. I do not believe, for example, that in this country we would have wished to prosecute someone who raised funds in the 1980s for the African National Congress, even though some of the activities carried on by the ANC during the course of its armed struggle undoubtedly came within any reasonable definition of terrorism. Therefore, a decision would have to be taken as to whether the ANC was an organisation whose members we should prosecute if they conducted fund raising or training in this country.

The Director of Public Prosecutions is a civil servant. He or she is and should be non-political. However, the decision to prosecute for involvement in overseas terrorism requires to be taken by someone who certainly has political experience and good political antennae. Of course, the decision must not be taken as a political decision. If that happened it could lead to disaster, as, indeed, happened with the decision of Sir Patrick Hastings, the Attorney-General in the first Labour government in the Campbell case in 1924.

However, we believe that the decision must be taken by someone who has a political background and, above all, by someone who sits in one or other House of Parliament and who can be called upon to explain himself in that House. I do not intend in any way to be disrespectful to Mr David Calvert-Smith, the present DPP, but I certainly believe that the noble and learned Lord, Lord Williams of Mostyn, would be admirably placed to undertake the difficult task of deciding whether or not prosecution should be authorised in these borderline cases.

The Conservative amendments propose to require all prosecutions under the Bill to have the consent of the Attorney-General. We do not object to that in principle but it seems to us that the decision in cases of domestic terrorism is likely to depend much more on nuts and bolts issues, such as whether there is sufficient evidence to justify a prosecution. Our own feeling is that those decisions can properly be taken by the DPP and thus save the time of the Attorney-General. However, I express the hope that the Government will be willing to accept the principle behind either our amendment or that of the Conservatives, which we would support in default of our own. I beg to move.

Lord Cope of Berkeley

As the noble Lord, Lord Goodhart, has just pointed out, we also have two amendments in this group, Amendments Nos. 174 and 175, which go slightly further than the Liberal Democrat Amendments Nos. 173 and 176, also being debated. First, I support what the noble Lord, Lord Goodhart, said with regard to his amendments concerning overseas terrorism and making the case that proceedings should not be instituted without the consent of the Attorney-General where they concern terrorism wholly or mainly outside the United Kingdom.

There is also a case for saying that, given the political nature of all terrorist offences, the Attorney-General is the right person to sanction prosecution for all these offences, whether or not they are concerned with foreign terrorism. That is obviously the effect of our amendments. However, apart from that, there is a potential difficulty in trying to distinguish between terrorism which is wholly or mainly outside the United Kingdom and terrorism which is not.

Much of the terrorism about which we have been speaking this afternoon, though by no means all, is in connection with Ireland. There is reason to suppose that a good deal of the capacity of PIRA and other related organisations exists outside the United Kingdom; that is, substantially in the Republic of Ireland and, to a small extent, further afield. Is PIRA terrorism, therefore, wholly or mainly outside the United Kingdom? When PIRA was active, the bombs it let off and the incidents it perpetrated were within the United Kingdom. The same can be said now of the Real IRA and the Continuity IRA. But there are other organisations at the Protestant end of the scale, the loyalist end, which have carried out attacks in the Republic of Ireland. I do not think they would claim to have carried out more offences in the Republic of Ireland than in Northern Ireland; nor would anyone point to that fact. Certainly, they are not doing so at present.

However, I mention that to draw attention to the potential difficulty of trying to distinguish in this way between terrorism wholly or mainly outside the United Kingdom and other terrorism; that is to say, within the United Kingdom. That is one reason for marginally preferring our Amendments Nos. 174 and 175 to those moved by the noble Lord on behalf of the Liberal Democrats. I believe the point is worth the consideration of the Committee.

5.45 p.m.

Lord Bassam of Brighton

I do not want Members of the Committee on the Benches opposite to get too excited, but my speaking note starts, "Resist-but".

It is common ground between us that there should be a consent provision in relation to the main offences in the Terrorism Bill. Clause 117 of the Bill provides for that. The issue is whether these offences in some or all circumstances should be subject to Attorney-General rather than Director of Public Prosecution consent.

Amendments Nos. 173 and 176 tabled by the noble Lord, Lord Goodhart, propose that where offences relate to terrorism wholly or mainly outside the United Kingdom there should be Attorney-General consent for a prosecution to go ahead. At Second Reading the noble Lord indicated that he supported such an approach because of the difficult and sensitive issues which can arise in connection with such cases. Perhaps I may say that he developed that argument very well this afternoon, with his usual talent. He said that political antennae were required. I believe that that is, indeed, the case.

The noble Lord also stressed the importance of the involvement of someone directly accountable to Parliament in issues which can touch on international relations and related matters. That is a wise observation.

I am sure that the Committee will recall that the noble Lord, Lord Bach, indicated on the first day of Committee that we have sympathy with those arguments. We recognise the particular sensitivities that may apply in international cases. However, we are not entirely persuaded that Amendments Nos. 173 and 176 quite do the trick. On a technical point, they do not cover Northern Ireland. We take the view that any change to the current consent provisions should also apply there.

More substantively, we should like to look carefully at the formula proposed for defining an international case. That may have some bearing on the comments made by the noble Lord. Lord Cope. It is important that the right ground is covered, and as clearly as possible. We need to reflect further on whether the phrase, terrorism wholly or mainly outside the United Kingdom", fully meets those tests. For instance, we are not sure that it is entirely clear whether the formula applies to acts that take place wholly or mainly outside the United Kingdom or to acts undertaken in the United Kingdom or elsewhere to advance a cause wholly or mainly connected with a place other than the United Kingdom, or both. This is far from straightforward territory. I am sure that the noble Lord will appreciate that we want to consider further whether the approach adopted in the amendments is the best one in all the circumstances.

As we have indicated, we have sympathy with the concern underlying the amendments, although we cannot accept them in their current form. We should like to take them away for further consideration with a view to tabling further amendments of our own at Report stage.

I turn to Amendments Nos. 174 and 175 tabled in the name of the noble Lord, Lord Cope. These amendments go further—although the principle is the same in terms of the major offences under the Bill—in arguing that they should be subject to Attorney-General rather than DPP consent.

We believe that the amendments perhaps go a step too far. We have indicated that we have sympathy with the point made by the noble Lord, Lord Cope. We accept the case for requiring the involvement of the Attorney-General in international cases because of the sensitivities which have been alluded to in the debate. However, we do not think that it is necessary to require his personal consent for prosecutions under the Bill which do not have an international dimension. That is not to say that we do not recognise the many delicate issues which may be involved in deciding public interest in such cases. However, the DPP is well used to making such decisions in complex and sensitive areas. It is always open to him to consult the Attorney-General on particularly difficult and sensitive cases. Indeed, the Attorney-General is informed as a matter of course of all serious cases. The Director of Public Prosecutions can and does raise individual cases of concern in their regular discussions.

It is important that Attorney-General consent to prosecution is reserved for the most sensitive and serious cases of all and that the numbers of categories of cases he has to consider personally are kept to a manageable number so that he can give them the sufficient detail of attention they require. I think the House will agree that a line has to be drawn somewhere.

We have indicated that we intend to table amendments at Report stage to provide for Attorney-General consent in international cases, but we are not persuaded that the case has been made also to require his personal involvement in cases without that international dimension.

The fact that some cases under the PTA are currently subject to DPP consent—primarily Sections 16A and B concerning the possession of articles or information for terrorist purposes—indicates that the DPP will not be taking on an area of work with which he is entirely unfamiliar.

In the light of our undertaking to table the amendments I have described at Report stage, I trust that noble Lords will not seek to press their amendments.

Lord Goodhart

I am grateful to the noble Lord, Lord Bassam, for what is certainly a more than moderately encouraging reply. I am grateful that he has accepted the principle behind our amendments. I have enough knowledge of the problems of parliamentary drafting to recognise that opposition amendments are rarely perfect. I am sure that ours could be improved upon. I shall look forward with interest to seeing what is proposed at Report stage. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 174 to 176 not moved.]

Clause 117 agreed to.

Lord Bassam of Brighton

moved Amendment No. 176A: After Clause 117, insert the following new clause—


(".—(1) Subsection (2) applies where in accordance with a provision mentioned in subsection (5) it is a defence for a person charged with an offence to prove a particular matter. (2) If the person adduces sufficient evidence to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. (3) Subsection (4) applies where in accordance with a provision mentioned in subsection (5) a court—
  1. (a) may make an assumption in relation to a person charged with an offence unless a particular matter is proved, or
  2. (b) may accept a fact as sufficient evidence unless a particular matter is proved.
(4) If sufficient evidence is adduced to raise an issue with respect to the matter mentioned in subsection (3)(a) or (b) the court shall treat it as proved unless the prosecution disproves it beyond reasonable doubt. (5) The provisions in respect of which subsections (2) and (4) apply are—
  1. (a) sections 39(5)(a), 54, 57, 58. 77 and 103 of this Act, and
  2. (b) sections 13, 32 and 33 of the Northern Ireland (Emergency Provisions) Act 1996 (possession and information offences) as they have effect by virtue of Schedule 1 to this Act.").

On Question, amendment agreed to.

Clause 118 [Crown servants, regulators, &c]:

[Amendment No. 177 not moved.]

Lord Bassam of Brighton

moved Amendment No. 178: Page 55, line 7, at end insert ("any of"). The noble Lord said: Before addressing the amendments in this group in detail, it may be helpful for me briefly to explain Clause 122.

The clause lists the Bill's order-making powers and provides that they should be made by statutory instrument and may contain savings and transitional provisions. Importantly, it also says which orders are subject to affirmative or negative resolution. An urgency procedure is provided by subsections (4) and (5).

During the Report stage of this Bill in another place, my right honourable friend Mr Adam Ingram advised that, although the Government felt that the delegated powers in the Bill were subject to the appropriate scrutiny, the powers would of course be looked at carefully by the Select Committee on Delegated Powers and Deregulation of this House.

Lord Cope of Berkeley

I am sorry to interrupt the Minister, but it seemed to me that he may be talking about the subsequent amendment. Is he talking about Amendment No. 178 and thus Clause 118?

Lord Bassam of Brighton

Perhaps I should have indicated that I am talking to Amendment No. 178 and working through the other amendments which are similarly grouped. I thought I made it clear that I was addressing the grouping.

If the Delegated Powers and Deregulation Committee felt that any of the procedures were inappropriate, we would have regard to its recommendations.

Amendment No. 178 is a minor and technical drafting amendment. It gives more flexibility in the making of regulations under Clause 118. Amendments Nos. 178, 190, 191 and 208 are also minor and are technical drafting corrections.

Amendment No. 180 corrects an error which was spotted by the DPSC at paragraph 42 of its report. Amendment No. 181, tabled by the noble Lord, Lord Cope, addresses the same point, but I trust that he will agree to withdraw his version.

The more substantive amendments in this group concern whether certain order-making powers in the Bill should be subject to the negative or affirmative procedure. Paragraph 17(4) of Schedule 7 requires the kind of passenger information which carriers may be required to provide to be specified by order by the Secretary of State. Paragraph 21 of Schedule 8 requires provision to be made, by order, for Scotland, allowing a solicitor to be present at interviews, subject to any conditions set out in the order.

Those two powers are currently subject to the negative procedure. The DPSC recommended, at paragraphs 39 and 41 of its report, that they should be subject to the affirmative procedure on the first occasion that they are made. We considered the committee report carefully and decided to accept those recommendations. Amendments Nos. 179 and 185 put that decision into effect.

Amendments Nos. 183 to 188, tabled by the noble Lord, Lord Cope, would make those two powers subject to the affirmative procedure on every occasion when they are used. We are not persuaded of the need to go that far; we do not believe that is necessary. So having started from a proposal that the powers should be subject to negative resolution, and having considered the concerns outlined in the DPSC report, we believe that the "first-time only" affirmative procedure strikes the right balance. I beg to move.

Viscount Bridgeman

We are pleased that the Government accepted the requirement that a first-time order should be subject to affirmative resolution. We regard that opinion by the committee to be important and constructive and are pleased that the Government are accepting it.

Lord Goodhart

As a member of the committee, I join with the noble Viscount, Lord Bridgeman, in saying that we are happy that the Government accepted the recommendation.

On Question, amendment agreed to.

Clause 118, as amended, agreed to.

Clauses 119 to 121 agreed to.

Clause 122 [Orders and regulations]:

The Deputy Chairman of Committees (Lord Ampthill)

The noble Lord, Lord Bassam, has already spoken to Amendment No. 179. But I should remind the Committee that, if it is accepted, I cannot call Amendments Nos. 183, 184, 187 and 188 as they will have been pre-empted.

Lord Bassam of Brighton

moved Amendment No. 179: Page 57, line 30, at beginning insert ("Subject to subsection (2A),"). On Question, amendment agreed to.

Lord Bassam of Brighton

moved Amendment No 180: Page 57, line 40, leave out ("118(2)") and insert ("118(1) or (2)"). On Question, amendment agreed to.

[Amendment No. 181 not moved.]

Lord Bach

moved Amendment No. 182: Page 57, line 41, after ("52(1)") insert ("(a) or (b)"). The noble Lord said: With the leave of the Committee. I shall move Amendment No. 182 on behalf of my noble friend Lord Bassam of Brighton. This is a drafting amendment, but I am happy to explain it more fully than usual as it has been requested, properly, that it be dealt with on its own.

Paragraphs 45 to 52 deal with insolvency in relation to forfeiture and restraint orders—this relates to Schedule 4 of the Bill—and cover the whole of the United Kingdom. Paragraph 51 provides protection for insolvency practitioners who seize or dispose of property subject to a restraint or forfeiture order. The key provision is paragraph 51(2), which says that, provided the conditions in 51(1) are fulfilled, The insolvency practitioner shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his negligence". However, paragraph 51 only works for insolvency practitioners in the United Kingdom. But it is also possible that property may be seized or disposed of by an insolvency practitioner based outside the United Kingdom.

Paragraph 52, which replicates paragraph 34 of Schedule 4 to the Prevention of Terrorism (Temporary Provisions) Act 1989, therefore provides that: An order may be made … to secure that an Islands or external insolvency practitioner has the same rights [in relation to property in the UK] … as he would have if he were an insolvency practitioner in that part of the United Kingdom". The procedure for making the order under paragraph 52 depends on which part of the UK the property is situated in—and this is where we come to the amendment.

Under paragraph 52(2), if the property is in Great Britain, the order is made by the Secretary of State. Such orders are to be subject to the negative resolution procedure by virtue of Clause 122. But if the property is in Northern Ireland, the order is made by the Department of Economic Development in Northern Ireland. The procedure for an order of this kind is set out in paragraph 52(3). It is to be subject to negative resolution within the meaning of Section 41(6) of the Interpretation (Northern Ireland) Act 1954. That replicates the provision in subparagraph (7) of paragraph 34 of Schedule 4 to the Prevention of Terrorism (Temporary Provisions) Act 1989, which was added to the 1989 Act by the Insolvency (Northern Ireland) Order 1989.

Because the procedure for orders under paragraph 52(1)(c) is set out in paragraph 52(3), it follows that the procedure in Clause 122 should not apply here; that is, in Clause 122. But the present wording of Clause 122(2)(letter "i") suggests that all of paragraph 52(1) is included. That overlap could cause uncertainty. That is why we have tabled the amendment. It clarifies that for orders under paragraph 52(1)(c), the procedure to be followed is that in paragraph 52(3) of Schedule 4, not Clause 122. I hope that that is sufficiently clear to explain to the Committee why the Government are moving this particular amendment.

6 p.m.

Lord Cope of Berkeley

I thought that was a very clear explanation of this highly complex matter. My only quibble is that I think it is actually (i) rather than (1).

On Question, amendment agreed to.

[Amendments Nos. 183 and 184 not moved.]

Lord Bassam of Brighton

moved Amendment No. 185: Page 57, line 44, at end insert— ("(2A) In the cases of—

  1. (a) the first order to be made under paragraph 17(4) of Schedule 7, and
  2. (b) the first order to be made under paragraph 21 of Schedule 8,
the order shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament (and subsection (2)(j) or (1) shall not apply)."). On Question, amendment agreed to.

[Amendment Nos. 186 to 188 not moved.]

Viscount Bridgeman

moved Amendment No. 189: Page 58, line 19, after ("opinion") insert ("and his reasons for holding that opinion"). The noble Viscount said: This subsection allows the Secretary of State to override Parliament in matters of urgency. The amendment seeks to require him to give the reasons for his opinion when making such an order. I beg to move.

Lord Avebury

The amendments in my name, Amendment Nos. 189A and 189B, are grouped with this amendment. The clause as it stands requires the Secretary of State to get an affirmative resolution from each House of Parliament in order to proscribe an organisation. However, as we discussed at an earlier stage at Clause 122(4), the Secretary of State has the power, if he is of the opinion that it is a matter of urgency, to proscribe an organisation without the approval of Parliament, and that proscription remains in force for a period of 40 days after which, if it has not then received the approval of both Houses of Parliament, it lapses.

I objected to this on the first day of Committee and I gave the example that the Secretary of State could proscribe an organisation one morning at 10 o'clock and that a person going out and collecting subscriptions on behalf of the organisation at 10.05 would be committing an offence which might land him in prison, even though he had no knowledge that the order had been made. This is fundamentally unjust. Proscription is such a serious measure that it should always be sanctioned by Parliament and we should not extend that power to the Secretary of State the power an organisation at five minutes' notice and without the knowledge of the members of that organisation.

When we were discussing this previously, I do not believe that the Minister gave the Committee much of an indication of how or in what circumstances the urgency power would be used. As far as I am aware, that power that has not been used in Northern Ireland. Perhaps the Minister will explain what circumstances the Government envisage might occur in the Province which justify the use by the Secretary of State of such an extreme power. What is the justification for extending it to the whole of the United Kingdom? Terrorism has flourished in Northern Ireland in the past. There may have been new organisations of an extremely dangerous character springing up which may theoretically have justified the Secretary of State acting urgently in order to prevent those activities from continuing over the next 40 days until an order was made by Parliament. But can we imagine that such a development would occur on the mainland of the United Kingdom? Is it not always within the power of Parliament, if it sees that the circumstances justify it, to make emergency legislation extending the powers that have already been granted to the Secretary of State and to say that it is not enough to have an affirmative resolution and that we must give Ministers this power of urgency which did not exist before?

In the Criminal Justice (Terrorism and Conspiracy) Act which came before your Lordships in the summer of 1998, we went through every stage of the Bill in a single day. So, it is not that Ministers cannot take powers if they really need them to deal with terrorist threats as a matter of extreme urgency. If there is no proper justification for the power, it should not be included in the Bill. I hope that the noble Lord who is to reply will either give us a thorough explanation or say that this will be reconsidered on Report.

Lord Goodhart

Perhaps I may raise another point which arises from these amendments in my noble friend's name. It seems to me that there is a problem as regards what happens if an order is made under the urgency procedure relating to the proscription on an organisation and that order is not then approved within the 40-day period. Clause 122(5)(b) states: an order's ceasing to have effect shall be without prejudice to anything previously done". I understand why there is that provision. Obviously you do not want people who have taken actions on behalf of the Government in reliance on that order to be subject to prosecution for what was done under an order that had legal authority at the time. But it seems to me that there is a particular problem if anybody has been convicted. I think it unlikely, in practical terms, that anybody would be convicted within 40 days, but it is possible. In those circumstances, if Parliament has not seen fit to endorse the order by an affirmative resolution, it would be inappropriate for somebody who has been convicted under that order to have that conviction standing on the record. While this seems to me to be a pretty improbable circumstance, should not there be a provision in the Bill to ensure that, in such circumstances, that conviction does not stand?

Lord Bach

Clause 122(4) provides for an urgency procedure for most of the affirmative powers in the Bill. Amendment No. 189 in the name of the noble Viscount, Lord Bridgeman, would add to this procedure a requirement that an order made in this way should include a declaration of the Secretary of State's reasons for his opinion that the urgency procedure is necessary. Although we recognise that Parliament has a legitimate interest in seeing that such procedures are not misused, we cannot accept the need for, or the value of, this particular amendment.

As the Delegated Powers and Deregulation Committee said in its report on the Bill: The use of emergency or urgency procedures is a well-trawled concept, and Parliament only agrees to these where they are considered strictly necessary. The appropriateness of the use of such powers is no doubt one which the future Human Rights Committee will keep under review". That is right but it is a much broader issue than we can properly address in the context of this Bill. The noble Viscount's proposal should be considered in that broader context. Meanwhile, of course, I give an assurance that no Secretary of State under the present Government will use the procedure without proper reasons and obviously the same would be true of any other likely government.

I turn to Amendments Nos. 189A and 189B in the name of the noble Lord, Lord Avebury. We are grateful to him for raising the issue of what happens if an organisation is proscribed by an order made under the urgency procedure and Parliament subsequently withholds its consent for the order.

We do not believe that an amendment along these lines is necessary. We can see that the noble Lord's amendments are intended as a safeguard against abuse of the urgency procedure. We believe that we have already provided an important safeguard in the appeals process set out in Part II. Our view currently is that an organisation which believes that it should not be proscribed should rely on that process rather than seeking to use Parliament as a kind of appeal court.

We accept that not for the first time the noble Lords, Lord Avebury and Lord Goodhart, have raised an important and interesting point.

Lord Goodhart

I am grateful to the noble Lord for giving way. We are not suggesting that the organisation will use Parliament. That is a most unlikely scenario. We are suggesting that, for whatever reason, Parliament declines to pass a resolution to approve the order. The result of that is that the appeals process never comes into existence so that somebody who has been convicted cannot rely on that process of deproscription and the right to appeal following a deproscription order. There is nothing left to be done. It seems to me that that is a small but not unimportant lacuna in the Bill.

6.15 p.m.

Lord Bach

I have said that noble Lords on the Liberal Democrat Benches have raised an important and interesting point. No doubt we shall consider again on Report the whole area of proscription. Therefore I give an undertaking that we shall think further on this matter before then. I believe that that is really what the noble Lord, Lord Avebury, wanted from me today. We shall come back either with an amendment or with a fuller reassurance as to why such an amendment is not needed.

I was asked whether the urgency procedure has ever been used in Northern Ireland. The answer is that it has. If a new organisation made itself known by means of a terrorist outrage, the public would obviously expect any government to act immediately. The noble Lord used the phrase "proscription at five minutes' notice". That may have been a form of words but it is a misapprehension on his part. "Urgency" is not five minutes' notice. It is well established and already used for the whole of the United Kingdom.

As the Committee will probably be aware, those orders are made to come into force on the following day. That is a detail only but perhaps it is worth putting it on the record.

Lord Cope of Berkeley

The question was raised as to whether a prosecution could reach that point within the 40 days. I am not quite sure whether it is 40 days full stop or 40 sitting days. Clearly, the Summer Recess is relevant to that. There may be times when it is difficult for the Government to act if Parliament is not sitting and not likely to be sitting for some weeks, as occurs during the Summer Recess. It may be necessary to use the power in those circumstances.

Lord Bach

I am grateful to the noble Lord for that. I can tell him that it is 40 sitting days.

Lord Cope of Berkeley

In which case, it is more likely that a prosecution may proceed far enough for the amendment to be relevant.

Lord Avebury

I am grateful to the Minister for his assurances. In view of the undertaking that we can look again at this matter on Report, I certainly shall not press my amendment.

Viscount Bridgeman

I am grateful to the noble Lord, Lord Bach, for his response to Amendment No. 189 which I shall read with care in Hansard. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 189A and 189B not moved.]

Lord Bassam of Brighton

moved Amendments Nos. 190 and 191: Page 58, line 36, leave out paragraph (b). Page 58, line 38, at end insert— ("( ) Subsections (1)(a) and (3)(d) do not apply to an order made under regulations made under section 96."). On Question, amendments agreed to.

Clause 122, as amended, agreed to.

Clauses 123 and 124 agreed to.

Schedule 15 [Consequential Amendments]:

Lord Bassam of Brighton

moved Amendments Nos. 192 to 202: Page 140, line 2, at end insert— ("Criminal Justice Act 1967 (c.80) .—(1) The Criminal Justice Act 1967 shall be amended as follows. (2) In section 67(7)(b) (computation of sentences) 1 or "section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989" substitute "section 41 of the Terrorism Act 2000"."). Page 140, line 30, leave out ("paragraphs 1(1), 2 and 5 of Schedule 8 to") and insert ("any provision of"). Page 140, line 45, leave out sub-paragraph (7) and insert— ("(7) For section 61(9)(b) (fingerprinting: disapplication) substitute— (b) applies to a person arrested or detained under the terrorism provisions." "). Page 141, line 3, leave out sub-paragraph (8) and insert— ("(8) For section 62(12) (intimate samples: disapplication) substitute— (12) Nothing in this section applies to a person arrested or detained under the terrorism provisions; and subsection (1A) shall not apply where the non-intimate samples mentioned in that subsection were taken under paragraph 9A of Schedule 8 to the Terrorism Act 2000." "). Page 141, line 7, leave out sub-paragraph (9) and insert— ("(9) For section 63(10) (non-intimate samples: disapplication) substitute— (10) Nothing in this section applies to a person arrested or detained under the terrorism provisions." "). Page 141, line 22, leave out sub-paragraph (12) and insert— ("(12) For section 118(2)(a) (definition of police detention) substitute— (a) he has been taken to a police station after being arrested for an offence or after being arrested under section 41 of the Terrorism Act 2000, or"."). Page 141, line 33, after ("74(2)(d)") insert ("and (e)"). Page 141, line 35, at end insert ("or (e) an order under section 111 of the Terrorism Act 2000 (forfeiture orders),"."). Page 142, line 23, leave out from ("substitute") to ("to") and insert (""sections 37 and 38 of, and Schedules 5 and 6"). Page 142, line 28, leave out ("paragraphs 1(1), 2 and 5 of Schedule 8 to") and insert ("any provision of"). Page 142, line 37, leave out from (""(b)") to ("applies") in line 38. Page 142, leave out lines 41 to 43 and insert— (""(12) Nothing in this Article applies to a person arrested or detained under the terrorism provisions; and paragraph (1A) shall not apply where the non-intimate samples mentioned in that paragraph were taken under paragraph 9A of Schedule 8 to the Terrorism Act 2000.""). Page 142, line 45, leave out from ("Article") to ("applies") in line 46. On Question, amendments agreed to.

[Amendment No. 202ZA not moved.]

Lord Bassam of Brighton

moved Amendments Nos. 202A to 205: Page 143, line 18, leave out paragraph (b) and insert— ("(b) for paragraph (f) there shall be substituted— (f) section 111 of the Terrorism Act 2000 (forfeiture orders)." "). Page 144, line 34, at end insert— ("Northern Ireland (Sentences) Act 1998 (c.35) .—(1) The Northern Ireland (Sentences) Act 1998 shall be amended as follows. (2) In section 5 (fixed term prisoners: special cases)—

  1. (a) in subsection (2) for "section 16(2) of the Northern Ireland (Emergency Provisions) Act 1996" substitute "section 80(2) of the Terrorism Act 2000",
  2. (b) in subsection (3)(a) for "section 16(2) of the 1996 Act" substitute "section 80(2) of the 2000 Act",
  3. (c) in subsection (4) for "section 16(2) of the 1996 Act" substitute "section 80(2) of the 2000 Act", and
  4. (d) at the end of subsection (4)(b) insert ", and
  5. (c) section 16(2) of the Northern Ireland (Emergency Provisions) Act 1996."
(3) For section 14(3)(a) (inadmissibility of evidence or information in certain proceedings) substitute— (a) be admissible in proceedings on applications made under paragraph 1, 2, 5. 11, 13, 22, 28 or 30 of Schedule 5 to the Terrorism Act 2000.". .—(1) This paragraph applies to a reference in section 14(2) of the Northern Ireland (Sentences) Act 1998 (inadmissibility of evidence or information in certain proceedings) to an offence under a provision ("the old provision") of—
  1. (a) the Prevention of Terrorism (Temporary Provisions) Act 1989, or
  2. (b) the Northern Ireland (Emergency Provisions) Act 1996.
(2) The reference shall be taken as including a reference to an offence under this Act which is committed in circumstances which would have amounted to the commission of an offence under the old provision before it ceased to have effect."). Page 144, line 43, leave out ("(g)") and insert ("(h)"). Page 145, line 1, leave out ("(h)") and insert ("(i)"). On Question, amendments agreed to.

Schedule 15, as amended, agreed to.

Schedule 16 [Repeals]:

Lord Bach

moved Amendments Nos. 205A and 205B: Page 145, line 46, column 1 leave out ("Paragraph 2") and insert ("Part I"). Page 145, line 46, column 3, at end insert— ("Part I of Schedule 2.") On Question, amendments agreed to.

Schedule 16, as amended, agreed to.

Clause 125 [Report to Parliament]:

Lord Cope of Berkeley

moved Amendment No. 205C: Page 59, line 4, after ("report") insert ("prepared by a professional legal adviser who is independent of the Government"). The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 206 and 207. Clause 125 provides for a report to be prepared on the workings of the Bill, or the Act as it will become. That is in line with what has happened in recent years in relation to the emergency legislation which is being replaced by the provisions of this Bill.

To a certain extent the amendments are probing but they are intended to get on the record a little more detail about what the Government have in mind as regards that report. There are three points listed in the various amendments.

First, it is important that we continue to have the benefit of an independent report on the working of this legislation. We all know that, as has been said this afternoon, we are passing draconian provisions to apply in circumstances when we all accept that draconian provisions are necessary. Nevertheless, it is right that we should ponder them from two points of view: first, to make sure that draconian provisions are still required and that the necessity for them still exists. There is no doubt about that in my mind at the moment but, nevertheless, that should he reviewed and in detail. But, secondly—and more importantly—we must make sure that they are working properly so that we do our best to defeat terrorism, while also ensuring that proper regard is being paid to human rights and everything that we, as a civilised country, hope to keep in mind in applying draconian legislation.

Such reports have been prepared for the past few years by Mr John Rowe QC, to whom we paid tribute earlier. Indeed, his work was much quoted in some of our previous debates. Formerly the reports were produced by other distinguished lawyers, notably by the noble Viscount, Lord Colville of Culross, for quite a few years. It is important that such reports should continue to be prepared by a "professional legal adviser" who is independent of the Government and is of similar standing to those distinguished gentlemen.

Secondly, Amendment No. 206 provides that the reports should cover not just the legislation itself, as specified in the Bill, but all the orders and regulations that are made under it. It has been absolutely apparent throughout our discussions that a great deal of the important detail of these provisions lies in orders and regulations made under the Act. Therefore, it is the way that the orders and regulations are being applied which is important, as well as the Act in general.

My third point is made in a slightly sideways sense in Amendment No. 207. This amendment would ensure that, as at present, such reports should be debated in "each House of Parliament". That is currently achieved by way of the relevant legislation expiring unless it is debated, which is an extremely fierce form of guillotine to ensure a parliamentary debate. We do not propose such a process, but we suggest that there should at least be a trip-wire in the provision to ensure that the Government do lay the reports before Parliament and gain its approval for the way in which the draconian legislation is applied. I beg to move.

Lord Molyneaux of Killead

It gives me great pleasure to support both the amendment and the remarks of the noble Lord, Lord Cope of Berkeley. In a previous incarnation I had the privilege of appearing before many of these distinguished persons. Although their conclusions were sometimes a little inconvenient to some of us—and even more inconvenient for some governments—their reports instilled confidence in the community in general. They disarmed critics of the legislation from abroad—usually people with very little real knowledge of the situation with which we were dealing. We have benefited greatly from the views and services of those distinguished persons. I warmly support the comments made by the noble Lord, Lord Cope of Berkeley.

Lord Bassam of Brighton

I thank the noble Lord, Lord Cope, for his explanation of the amendments and especially for drawing attention to their probing nature. This is both a necessary and an important discussion.

It has long been the case that annual reporting on the operation of the Prevention of Terrorism Act and the Emergency Provisions Act has greatly assisted both this and another place in our respective consideration of the annual renewals. The Government accepted at an early stage of the Bill that an annual report to both Houses of Parliament would be welcomed, and brought forward an amendment to that effect which now appears in Clause 125.

I shall work through each amendment in turn, and begin with Amendment No. 205C. It is our intention here that the report will continue to be prepared by someone entirely independent of government; in other words, someone with an independent mind and an independent view. I am happy to place that on record. With that clear commitment, I see no need for the matter to be placed on the face of the Bill.

However, I should not be so happy to accept the other proposition in Amendment No. 205C; namely, that the reviewer must have a legal qualification. I see no reason for the proposition, although a legal background could undoubtedly be beneficial. I yield to no one in my admiration for the legal profession—I dare not, I live with a lawyer. But, having said that, such an absolute requirement might rule out other individuals equally suited to the post who may bring to bear different but equally valuable experience—experience, indeed, which in a sense guarantees their independence. To use a well-worn phrase, we want to find the right person for the job.

Amendment No. 206 would require all orders and regulations made under the Act to be covered by the annual report. I see the aim behind the amendment, but I do not believe that such a provision is entirely necessary. After all, the report is intended to cover the operation of the Act. In our view, this will catch the operation of powers exercisable under secondary legislation. The term "working of this Act" is deliberately wide to enable the report to cover the operation of the powers to whatever extent the reviewer wishes. For example, in his annual reports on the counter-terrorist legislation that is currently in force, Mr John Rowe QC goes to the trouble of looking at letters of complaint to central government on the operation of the Acts.

I ask the noble Lord to bear in mind a further point. In Northern Ireland, the holding centres are subject to a separate review mechanism; and, under this Bill, there is a mechanism for the independent review of the military complaints procedures. So it would not be necessary for these matters to be covered in the annual report, though the reviewer could, as I explained, look at them if he or she wished to do so. I believe that it is far better for us to leave it to the discretion of the independent reviewer to decide what specific ground should apply. As drafted, Clause 125 gives him or her the latitude to cover the noble Lord's point.

I turn finally to Amendment No. 207, which would require an annual debate on the report, with a move to quarterly reporting if Parliament does not approve the most recent report. Clause 125 will ensure that the Secretary of State should lay a report before "both Houses of Parliament" about the working of the Act as a whole. But we believe that the question of whether to hold a debate on that report should be left to the proper procedures of this and, indeed, another place, where this clause was added to the Bill.

Many reports are laid before Parliament each year and, clearly, it would not be possible for them all to be debated. It is for this Chamber and another place to decide which reports should be the subject of a specific debate. We do not want to bind Parliament or fetter its discretion, as this amendment would do, to have to debate this report every year; or, as the amendment suggests, more frequently if there were concerns about the content of the report. In the final analysis, we believe that the decision would be best taken year on year in respect of each report, through the usual procedures of the House. With that explanation, I trust that the noble Lord will not press his amendment.

Lord Cope of Berkeley

There was a crumb or two in the Minister's response. First, so far as concerns Amendment No. 205C, we now know that the report will be prepared by an independent adviser. However, the Minister also said that it would not necessarily be prepared by a lawyer. At that point, the noble and learned Lord the Lord Chancellor came into the Chamber. I was not quite sure whether he had done so in order to intervene on behalf of his profession, but perhaps his entry relates to later business.

I must admit that I was surprised by what the Minister said in that respect. It seems to me that it is essentially a legal job to report on this legislation. I cannot recollect off the top of my head all those who previously prepared reports, but I believe that I am right in saying that all of them have been distinguished lawyers—

Lord Molyneaux of Killead

I am grateful to the noble Lord for giving way. I shall be brief. My only connection with the legal profession was when I served for many years as a justice of the peace, but I was then "holding the ring", so to speak, and not necessarily on anyone's side.

I believe that the noble Lord, Lord Cope of Berkeley, made a valid point earlier. We need to reassure the public. The public perception is that a person who is learned in the law, for example, can be trusted to act impartially and to give an impartial view.

6.30 p.m.

Lord Cope of Berkeley

I agree with those comments. It is important that a distinguished lawyer should prepare the report. Perhaps the Minister can tell me whether under the previous legislation the report was prepared by someone who was not a leading lawyer. However, as far as I can recall, a leading lawyer has always prepared it.

I received more than a crumb, as it were, on Amendment No. 206 as the Minister assured me that all orders and regulations were covered by the provision. As regards Amendment No. 207, I received, if more than a crumb, only half a loaf. The Minister said that it was for Parliament to decide whether to discuss the report. Strictly speaking, that is correct. However, I hoped that the Minister would say that it was the Government's intention to suggest that both Houses of Parliament should discuss the report. We all know that the Government have a great deal of influence over what is discussed in both Houses of Parliament. The Government have extensive, although not complete, control over the time allocated to business in both Houses of Parliament. I thought that I would be given an undertaking that it was the Government's intention that the report should be discussed in both Houses of Parliament. I certainly think that it should be.

However, I shall not press the matter at this stage. We shall consider it further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 206 and 207 not moved.]

Clause 125 agreed to.

Clause 126 agreed to.

Clause 127 [Commencement]:

Lord Bassam of Brighton

moved Amendments Nos. 207A and 208: Page 59, line 10, leave out ("section 2(2)") and insert ("sections 2(2) and (Defences)"). Page 59, line 13, leave out subsection (2). The noble Lord said: I beg to move Amendments Nos. 207A and 208 en bloc.

On Question, amendments agreed to.

Clause 127, as amended, agreed to.

Clause 128 [Transitional provisions]:

Lord Bach

moved Amendment No. 209: Page 59, line 15, leave out subsections (1) and (2) and insert— ("( ) Where, immediately before the coming into force of section 2(1)(a), a person is being detained by virtue of a provision of the Prevention of Terrorism (Temporary Provisions) Act 1989

  1. (a) the provisions of that Act shall continue to apply to him, in place of the corresponding provisions of this Act, until his detention comes to an end, and
  2. (b) nothing in paragraph 4 or 7 of Schedule 15 shall have effect in relation to him during his detention.").
The noble Lord said: In moving Amendment No. 209, I wish to speak also to Amendments Nos. 210 and 211. These are technical amendments to do with the transitional provisions in the Bill.

As the Committee knows, the Bill replaces the Prevention of Terrorism Act 1989, (the PTA). Subsections (1) and (2) of Clause 128 deal with what happens to people who are being detained under the PTA at the moment when the Bill takes over.

The effect of the Bill as currently drafted is that, if someone is arrested under the arrest power in Section 14 of the PTA, the police will have to apply the Bill regime to their detention as soon as the Bill comes into force. But if someone is arrested under the ports powers in Schedule 5 to the PTA, the PTA regime continues for them up to the end of their detention. We believe that this position is anomalous in that it could lead to different regimes applying to people who were detained at the same time. We are also concerned that the idea of switching to the "Bill" detention regime half-way through someone's detention, as contemplated by Clause 128(1), could be difficult in practice.

We have therefore decided that it will be simpler and just as effective to allow for the PTA detention regimes to continue to the end of the detention period for anyone arrested under the PTA, whether under the arrest power or the ports powers. This is achieved by Amendment No. 209. I remind the Committee that the maximum period any detention could last under this transitional regime is one minute short of seven days.

I should stress that this is very much a belt and braces provision for use in the circumstances where someone is being detained when the Bill comes into effect. We do not envisage that it will be used much—and, of course, it has an extremely limited shelf life.

Amendment No. 210 is a general transitional proposition. It is immediately intended to deal with any problems which might arise in Schedule 15 where the Bill substitutes references to detention under provisions of the Bill for references to detention under provisions of the PTA, but where the policy intention is that references to the former should include references to the latter.

Amendment No. 211 clarifies transitional arrangements for the specific case of Section 14 of the EPA. I beg to move.

On Question, amendment agreed to.

Lord Bach

moved Amendments Nos. 210 and 211: Page 59, line 32, at end insert— ("( ) A reference in this Act or any other enactment or instrument to a provision of this Act shall (so far as the context permits) he taken to include a reference to a corresponding provision repealed by this Act."). Page 59, line 32, at end insert— ("( ) The repeal by virtue of this Act of section 14 of the Northern Ireland (Emergency Provisions) Act 1996 (young persons convicted of scheduled offences) shall not affect its operation in relation to offences committed while it was in force."). The noble Lord said: I beg to move Amendments Nos. 210 and 211 en bloc.

On Question, amendments agreed to.

Clause 128, as amended, agreed to.

Remaining clauses agreed to.

House resumed: Bill reported with amendments.