§ (" .—(1) This section applies where a person is charged with an offence under this Part.
§ (2) Subsection (4) applies where evidence is given that—
- (a) at any time before being charged with the offence the accused, on being questioned under caution by a constable, failed to mention a fact which is material to the offence and which he could reasonably be expected to mention, and
- (b) before being questioned the accused was permitted to consult a solicitor.
§ (3) Subsection (4) also applies where evidence is given that—
- (a) on being charged with the offence or informed by a constable that he might be prosecuted for it the accused failed to mention a fact which is material to the offence and which he could reasonably be expected to mention, and
- (b) before being charged or informed the accused was permitted to consult a solicitor.
§ (4) Where this subsection applies—
- (a) the court, in considering any question whether the accused is guilty of an offence under this Part, may draw from the failure inferences relating to that question, but
- (b) the accused shall not be committed for trial, be found to have a case to answer or be convicted solely on the basis of the inferences.
§ (5) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.").
§ The noble Lord said: My Lords, in moving the amendment, with the leave of the House I speak also to Amendment No. 21. The amendment is based on Clauses 108 to 111 which form part of Part VII, relating to Northern Ireland. I propose that the redrafted Clauses 109 and 1l1 should be inserted after Clause 64.
As drafted at present, Clauses 108 to 111 apply,
where a person is charged with an offence under section 11".
Clause 11 states:
A person commits an offence if he belongs or professes to belong to a proscribed organisation".
§ In the light of that the individual is considered to be a serious terrorist and comes within the provisions of Clauses 108 to 1ll. For the purposes of the amendment, I speak only to Clauses 109 and 111. Clauses 108 to 111 refer to proscribed organisations and persons belonging to them.
§ However, terrorism is more than proscribed organisations or organisations which might be proscribed. There may well be individuals who are per se terrorists. They do not necessarily have allegiances or alliances, other than perhaps the odd financial contract, to any of the world's terrorist organisations. Those individuals could be specialists in a specific field. They could specialise in doing extraordinary things on the cybernet. They could be specialists in communication activities of a sophisticated nature. They could be specialist murderers. In arty sense of the word, they are terrorists.
I inquired in the Public Bill Office as to how an individual terrorist as opposed to a terrorist organisation could come within the scope of the Bill. It did not appear that he did. Therefore we propose this amendment which inserts the new clause as printed on the Marshalled List —I shall not read it; noble Lords have had the amendment for a day or two——after Clause 64, at the end of Part VI. Part VI relates to terrorist offences committed, presumably, by individuals. Clause 54 states:
A person commits an offence if he provides instruction or training in the making or use of"—
and there follows a list. Part VI lays down how an individual commits a terrorist offence under the Bill. That is good.
§ One of the issues about which I feel strongly is that we should not be talking about two or three different classes of terrorists. Part VII is an anomaly: it refers only to Northern Ireland or Irish terrorism. The Bill protects this nation against international terrorism from wherever it may come until such time as your Lordships and another place amend it or pass another Bill. I am anxious that because of inhibitions with regard to human rights, and so on, the Bill will not be strong enough; that we shall leave loopholes and will not make the best use of our experiences in particular in Northern Ireland, spilling over into this country, in legislating against terrorism.193
§ Clauses 109 and 111—they are rewritten in the amendment—are extremely useful and valuable in the fight against terrorism; otherwise they would not have been in the Bill in the first place. I can see no reason why Clauses 109 and 111 should apply to proscribed organisations and those within them but that another law should apply to those outwith currently proscribed organisations. That is mainly why I move the amendment.
§ When fighting terrorism, the terrorist knows no bounds. There is no Geneva Convention. Virtually no rules are accepted. We need to ensure that the security forces—they may be the police or specialist forces—have all the weaponry at their disposal that we can give them.
§ I can see occasions on which these provisions could be most useful. One of the most difficult things to do to a skilled terrorist, a specialist of the type at which the provisions might be aimed, is to arrest him. Unless one can operate within a Bill such as this, one must have evidence, a reason, for the arrest. I believe that if the amendment is agreed, your Lordships will have improved the Bill and increased the protection that it is able to give to the people of this nation against terrorism. I beg to move.
§ 5.30 p.m.
§ Lord Lester of Herne Hill
My Lords, we hope that the Government will not be in favour of the amendments. One of the changes that the Government have made to the Bill, which we welcome, relates to Clause 118. They have placed the legal burden of proof on the prosecution; it must prove its case beyond a reasonable doubt. In doing so, they have made it clear that the Bill will fully comply with Article 6 of the European Convention on Human Rights, the presumption of innocence and the privilege against self incrimination, commonly referred to as the right of silence.
The effect of the amendments is to permit the drawing of inferences in relation to offences in Part VI as a result of a failure to mention material facts during questioning. If the amendments were accepted, apart from the complex burdens they would place upon judges and juries in attempting to give effect to them, they would create serious inroads into the right to a fair trial, including the presumption of innocence and the privilege against self incrimination.
Of course we all want to use effective means to combat terrorism, but one means that none of us wants to see introduced is a means that results in unfair trials, the miscarriage of justice and the kind of disrepute into which the criminal justice system would no doubt be brought if there were miscarriages of justice. For those reasons, we hope that the Government will not be in favour of the amendments because in our view they would be incompatible with the Convention rights under Article 6.
§ Lord Molyneaux of Killead
My Lords, I want to make one brief point. I agree with the noble Lord, 194 Lord Glentoran, that, given the numerical increase in the number of terrorist groupings and then the further splintering of those organisations, we need to consider his amendment. I fear that we are about to enter a phase in which terrorists will be operating on a do-it-yourself, solo basis motivated by a grudge not against political parties, nations or governments but against someone of their own religious view. I have known of such cases and I am concerned about the numbers multiplying.
It is not even a case of being able to say, "Where two or three are gathered together", as is said in the Prayer Book. There does not need to be two or three; just someone with a burning desire to get at someone else. Whether there is one solo person or whether there are two or three people, we can be assured that they will be accorded a suitable title—the title which they claim themselves—whether Continuity or Real IRA.
However, I am afraid that the number of such organisations will multiply because there is money to be made. We have seen it happen in drug dealing and so forth and there are rich pickings for people who have the means—one or two guns—and the expertise which they obtained when serving in the larger organisations. They can pose a very real threat to society and to government. We need to project our thinking forward and to take the necessary measures. I can think of no better vehicle than this Bill which the Government have brought forward.
§ Lord Falconer of Thoroton
My Lords, the amendment would bring two of the "post-Omagh" provisions into Part VI of the Bill. The provisions referred to as "post-Omagh" were introduced in the special Sitting in the summer of 1998 in the wake of the Omagh atrocity in August that year. My noble and learned friend the Attorney-General described the post-Omagh provisions as pushing the law to its limits. We believe that we were justified in pushing the law to its limits and that we are justified in continuing to do so in order to deal with those people who still oppose the peace process.
However, we believe that those provisions remain necessary in response to that particular threat. As your Lordships are aware, they have been placed in Part VII of the Bill. That means that they extend only to Northern Ireland and that they are time-limited to five years, during which time they must be annually renewed by Parliament. We believe that that is the right balance.
We do not therefore support the inclusion of these provisions in the permanent UK-wide part of the Bill. They are a carefully targeted response to the particular problem of organisations opposed to the peace process in Northern Ireland. We see no basis on which they should be applied to other offences in the Bill. I therefore hope that the noble Lord will agree to withdraw his amendment.
§ Lord Cope of Berkeley
My Lords, perhaps I may respond on behalf of the Opposition. The noble and learned Lord quoted his noble and learned friend as saying that these provisions push the law to its limits.
195 However, he correctly stated that the Government are prepared to do so only as regards Northern Ireland, implying that Northern Ireland terrorism is worse than and different from other forms of terrorism in other parts of the world. But a large part of the point of the Bill is to extend the Northern Ireland laws against terrorism to the whole of the UK. It is to take the legal lessons that we have learnt in fighting terrorism in Northern Ireland and to apply them to the undoubted growth of terrorism in the rest of the world in respect of other causes.
We all know of the difficulty of obtaining convictions in Northern Ireland. There are two reasons for that. The first is the intimidation of jurors and witnesses which led to the Diplock courts. The second is the ability of trained terrorists to resist the legal process; to resist the police in their interrogations and to use every part of the law in favour of their case. Those are the lessons that we have learnt in fighting terrorism in Northern Ireland. It therefore seems to us right that. Amendment No. 20, which is based on Clause 109, should extend to the other serious offences in Part VI.
Amendment No. 21 is based on Clause 111 and deals with the forfeiture of money and property as discussed on previous occasions. Again, in relation to the very serious offences dealt with in Part VI, we believe that the provisions should apply to all kinds of terrorist and not only to those in Northern Ireland. If we are to learn the lessons of Northern Ireland in dealing with all types of terrorism in the world, then those provisions form part of the lessons. I believe that the House should support my noble friend Lord Glentoran in Amendment No. 20.
§ 5.40 p.m.
§ On Question, Whether the said amendment (No. 20) shall be agreed to?
§ Their Lordships divided: Contents, 87; Not-Contents, 163.197
|Anelay of St Johns, B.||Lucas, L.|
|Astor of Hever, L.||Luke, L.|
|Attlee, E.||Lyell, L.|
|Blaker, L.||Mackay of Ardbrecknish, L.|
|Blatch, B.||Marlesford, L.|
|Brabazon of Tara, L.||Marsh, L.|
|Brookeborough, V.||Mayhew of Twysden, L.|
|Brougham and Vaux, L.||Molyneaux of Killead, L.|
|Buscombe, B.||Montrose, D.|
|Byford, B.||Mowbray and Stourton, L.|
|Carnegy of Lour, B.||Moynihan, L.|
|Clark of Kempston, L.||Murton of Lindisfarne, L.|
|Colville of Culross, V.||Newton of Braintree, L.|
|Colwyn, L.||Northbrook, L.|
|Cope of Berkeley, L.||Northesk, E.|
|Crathorne, L.||Norton of Louth, L.|
|Crickhowell, L.||O'Cathain, B.|
|Dean of Harptree, L.||Onslow, E.|
|Deedes, L.||Palmer, L.|
|Dixon-Smith, L.||Park of Monmouth, B.|
|Eden of Winton, L.||Pearson of Rannoch, L.|
|Elliott of Morpeth, L.||Rawlings, B.|
|Ferrers, E.||Reay, L.|
|Freeman, L.||Renton, L.|
|Gardner of Parkes, B.||Roberts of Conwy, L.|
|Geddes, L.||Rogan, L.|
|Glentoran, L.||Saltoun of Abernethy, Ly.|
|Seccombe, B. [Teller]|
|Gray of Contin, L.||Selborne, E.|
|Hanham, B.||Sharples, B.|
|Hanningfield, L.||Shaw of Northstead, L.|
|Hayhoe, L.||Skelmersdale, L.|
|Henley, L.[Teller]||Stewartby, L.|
|Higgins, L.||Stodart of Leaston, L.|
|Hogg, B.||Strathclyde, L.|
|Hooper, B.||Swinfen, L.|
|Jenkin of Roding, L.||Taylor of Warwick, L.|
|Jopling, L.||Tenby, V.|
|Knight of Collingtree, B.||Tugendhat, L.|
|Lamont of Lerwick, L.||Willoughby de Broke, L.|
|Lang of Monkton, L.||Windlesham, L.|
|Acton, L.||Chandos, V.|
|Addington, L.||Christopher, L.|
|Ahmed, L.||Clarke of Hampstead, L.|
|Alli, L.||Cledwyn of Penrhos, L.|
|Amos, B.||Clinton-Davis, L.|
|Andrews, B.||Cohen of Pimlico, B.|
|Archer of Sandwell, L.||Crawley, B.|
|Ashley of Stoke, L.||Currie of Marylebone, L.|
|Ashton of Upholland, B.||David, B.|
|Avebury, L.||Davies of Coity, L.|
|Bach, L.||Davies of Oldham, L.|
|Barker, B.||Desai, L.|
|Barnett, L.||Dixon, L.|
|Bernstein of Craigweil, L.||Dormand of Easington, L.|
|Billingham, B.||Dubs, L.|
|Blackstone, B.||Elder, L.|
|Blease, L.||Evans of Parkside, L.|
|Borrie, L.||Evans of Temple Guiting, L|
|Bragg, L.||Evans of Watford, L.|
|Brennan, L.||Falconer of Thoroton, L.|
|Brett, L.||Farrington of Ribbleton, B.|
|Brooke of Alverthorpe, L.||Faulkner of Worcester, L.|
|Brooks of Tremorfa, L.||Filkin, L.|
|Burlison, L.||Fyfe of Fairfield, L.|
|Carter, L. [Teller]||Gale, B.|
|Gavron, L.||Milner of Leeds, L.|
|Geraint, L.||Mitchell, L.|
|Gibson of Market Rasen, B.||Morris of Castle Morris, L.|
|Gilbert, L.||Morris of Manchester, L.|
|Gladwin of Clee, L.||Murray of Epping Forest, L.|
|Goldsmith, L.||Newby, L.|
|Goodhart, L.||Nicol, B.|
|Goudie, B.||Northover, B.|
|Gould of Potternewton, B.||Patel of Blackburn, L.|
|Graham of Edmonton, L.||Paul, L.|
|Greaves, L.||Peston, L.|
|Grenfell, L.||Pitkeathley, B.|
|Hamwee, B.||Plant of Highfield, L.|
|Hardy of Wath, L.||Ponsonby of Shulbrede, L.|
|Harris of Greenwich, L.||Prys-Davies, L.|
|Harrison, L.||Puttnam, L.|
|Haskel, L.||Ramsay of Cartvale, B.|
|Haskins, L.||Randall of St. Budeaux, L.|
|Hayman, B.||Razzall, L.|
|Hilton of Eggardon, B.||Rea, L.|
|Hollis of Heigham, B.||Rendell of Babergh, B.|
|Howells of St. Davids, B.||Rodgers of Quarry Bank, L.|
|Hoyle, I.||Sawyer, L.|
|Hughes of Woodside, L.||Scott of Needham Market, B.|
|Hunt of Chesterton, L.||Sewel, L.|
|Hunt of Kings Heath, L.||Shepherd, L.|
|Hylton, L.||Shore of Stepney, L.|
|Islwyn, L.||Shutt of Greetland, L.|
|Janner of Braunstone, L.||Simon, V.|
|Jay of Paddington, B. (Lord Privy Seal)||Smith of Clifton, L.|
|Smith of Gilmorehill, B.|
|Jeger, B||Smith of Leigh, L.|
|Judd, L.||Stoddart of Swindon, L.|
|Kirkhill, L.||Stone of Blackheath, L.|
|Layard, L.||Strabolgi, L.|
|Lea of Crondall, L.||Taverne, L.|
|Lester of Herne Hill, L.||Taylor of Blackburn, L.|
|Lipsey, L.||Thornton, B.|
|Lockwood, B.||Tomlinson, L.|
|Lofthouse of Pontefract, L.||Tope, L.|
|Longford, E.||Tordoff, L.|
|McCarthy, L.||Turnberg, L.|
|Macdonald of Tradeston, L.||Turner of Camden, B.|
|McIntosh of Haringey, L. [Teller]||Walmsley, B.|
|McIntosh of Hudnall, B.||Warwick of Undercliffe, B.|
|MacKenzie of Culkein, L.||Wedderburn of Charlton, L.|
|Mackenzie of Framwellgate, L.||Whitaker, B.|
|McNally, L.||Wilkins, B.|
|Mason of Barnsley, L.||Williams of Elvel, L.|
|Massey of Darwen, B.||Williams of Mostyn, L.|
|Merlyn-Rees, L.||Winston, L.|
|Methuen, L.||Woolmer of Leeds, L.|
|Miller of Chilthorne Domer, B.||Young of Old Scone, B.|
On Question, amendments agreed to.
§ Resolved in the negative, and amendment disagreed to accordingly.
Lord Glentoran moved Amendment No. 21.
After Clause 64, insert the following new clause—
§ FORFEITURE ORDERS: OFFENCES UNDER THIS PART
§ (" —(1) This section applies if a person is charged with an offence under this Part.
§ (2) The court by or before which the person is convicted may order the forfeiture of any money or other property if—
- (a) he had it in his possession or under his control at the time of the offence, and
- (b) it has been used in connection with the alleged offence under this Part or the court believes that it may be used in that connection unless it is forfeited.
§ (3) Before making an order under this section the court must give an opportunity to be heard to any person, other than the convicted person, who claims to be the owner of or otherwise interested in anything which can be forfeited under this section.
§ (4) A question arising as to whether subsection (1) or (2)(a) or (b) is satisfied shall be determined on the balance of probabilities.
§ (5) Schedule 4 shall apply (with the necessary modifications) in relation to orders under this section as it applies in relation to orders made under section 23.").
§ The noble Lord said: My Lords, I beg to move.
§ 5.50 p.m.
§ On Question, Whether the said amendment (No. 21) shall be agreed to?198
§ Their Lordships divided: Contents, 81; Not- Contents, 156.199
§ 6 p.m.
§ Clause 107 [Specified organisations: interpretation]:
Lord Glentoran moved Amendment No. 22:
Page 51, line 5, leave out ("and") and insert ("or").
The noble Lord said: My Lords, Amendment No. 22 is part of the legislation on specified organisations within Part VII. Again, it seems to me that Clause 107(a) and (b) sets up three classes of terrorist. One is either a terrorist under Section 3(8) of the Northern Ireland (Sentences) Act 1998 or a terrorist proscribed for the purposes of this Act in Schedule 2 or a terrorist who comes under both those provisions because Clause 107 states that an organisation is a terrorist organisation if,
it is specified under section 3(8) of the Northern Ireland (Sentences) Act 1998, and (b) it is, or forms part of, an organisation which is proscribed for the purposes of this Act".
§ I can see absolutely no logic in that wording. As I have said several times today, a terrorist is a terrorist is a terrorist; a terrorist organisation is a terrorist organisation is a terrorist organisation. All are a severe threat to this kingdom and the people within it and all should be treated equally severely. We should legislate to give the authorities the necessary powers to protect us.
In my opinion, Clause 107 would be much more sensible, reasonable and logical if it read that,
it is specified under section 3(8) of the Northern Ireland (Sentences) Act 1998, or … it is, or forms part of, an organisation which is proscribed for the purposes of this Act".
§ That means that the organisation is either specified or proscribed but either way it is a terrorist organisation and should be treated as such. I beg to move.
§ Lord Falconer of Thoroton
My Lords, the effect of this amendment is to seek to apply the post-Omagh provisions to all terrorist organisations proscribed in Schedule 2.
As I made clear in relation to the previous amendment, the Government's view in 1998 was that the post-Omagh provisions pushed the law to its limits but that it was appropriate to do so because of the consequences of not having such provisions in relation to those persons who still attacked the peace process.
We remain of that view. We believe that the effect of the post-Omagh provisions is that they must be targeted appropriately, and they are at the moment. We do not believe that it would be a positive step at this stage to seek to bring within their scope those organisations which are maintaining the ceasefire. In the light of those comments, I hope that the noble Lord will not press the amendment.
§ Lord Glentoran
My Lords, I thank the noble and learned Lord for that explanation which, he rightly says, he gave earlier.
I have much sympathy with the noble Lord, Lord Lester, in relation to complex burdens on courts, the risk of unfair trials and miscarriages of justice, I have no sympathy whatever—and I do not think they deserve our sympathy—with terrorists or would-be terrorists. It is wrong to set up two classes of terrorism. I believe that the Government are making a serious mistake in treating the Omagh legislation as something very special which took place after an extremely emotional event.
We are looking to the future which we can see. I hate to say that it is possible that there could be worse atrocities. There could be knowledge pending such an atrocity when we should like to use the post-Omagh legislative powers.
I believe that this Bill would be a better Bill had Amendments Nos. 20 and 21 been accepted and had the scope of this clause been widened. However, it has been made quite clear today that that is not the will of the House. I beg leave to withdraw the amendment.
201 Amendment, by leave, withdrawn.
§ Clause 108 [Evidence]:
Lord Goodhart moved Amendment No. 23:
Leave out Clause 108.
§ The noble Lord said: My Lords, I hope to be fairly brief because this amendment was debated at some length in Committee. However, it is an amendment of some importance.
§ This is another of the post-Omagh provisions. It is a provision which has pushed the law not only up to the limits but, in this case, beyond them.
§ In speaking to the previous amendment, the noble Lord, Lord Glentoran, said that he had no sympathy for terrorists. That is a statement with which we—indeed, I believe I speak for all noble Lords on these Benches—would absolutely concur. We have no sympathy for terrorists.
§ At the same time we recognise that in defeating terrorism we do not and should not allow ourselves access to the weapons of the terrorists themselves. In the fight against terrorism, it is absolutely essential to observe the rule of law.
§ We are concerned that Clause 108 does not observe the rule of law. The problem is that it treats the opinion of a police officer as evidence. The opinion of a police officer is not and cannot be evidence. He can give evidence as to the grounds on which he holds that opinion but the opinion as to whether the accused is or is not guilty of the offence with which he is charged—in this case, membership of a terrorist organisation—is a matter which is for the court to decide and not for the policeman.
§ Evidence of opinion is permissible in our courts only in the case of expert witnesses. The police officer is not an expert. This clause was introduced in the immediate aftermath of Omagh. It was a clause which did not receive the attention that it deserved. It was considered in surroundings of high emotion and at short notice when legislation was rushed through your Lordships' House in a couple of days.
§ The only justification for this clause is that it is necessary in order to bring the law of the United Kingdom, as in force in Northern Ireland, into line with the law in the Republic of Ireland where a legal provision of this kind has been in force for some years. Indeed, as I understand it, some convictions have been obtained under it.
§ We do not think that that is sufficient reason for departing from the longstanding traditions of British justice, which say that the decision on an issue of this kind is for the jury alone, or in the case of a Diplock court in Northern Ireland, for the judge alone. Furthermore, we believe that not only is this clause contrary to the principles and traditions of British justice, let alone the rules of the European Convention; it is also unlikely ever to have effect.
I am sorry that the noble and learned Lord, Lord Lloyd of Berwick, is unable to be here today. He spoke very effectively on this subject, both at Second
Reading and in Committee. Perhaps I may refer to something he said. His knowledge of the judiciary in Northern Ireland is far greater than mine. He said:
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 officer, 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".—[Official Report. 6/6/00; col. 1080.]
§ The view of the noble and learned Lord was that this clause would be wholly ineffective because no court would convict on the basis of the evidence of a police officer. I recognise that the clause provides that there can be no conviction solely on the basis of that evidence. However, it is clear that, if the other evidence is insufficient on its own to convict, no court would convict by adding the opinion of the police officer to that evidence.
§ The evidence on which the police officer bases his opinion is, no doubt, evidence which is admissible in the case. However, what will happen, unquestionably, is that the first question to be asked of the police officer by counsel for the accused is, "What is the evidence upon which your opinion is based?" The police officer may possibly say what that evidence is, in which case the question will be asked, "Why are not the witnesses brought who could give that evidence?"
§ What is much more likely is that for reasons of preserving the anonymity of informers or otherwise for the protection of security, the police officer will say, "I am not prepared to state the evidence on which my opinion is based". In that case it seems to me to be inevitable that the court will say, "We are not prepared to place any weight on this evidence". In those circumstances it seems to me that this clause is both wrong in principle and unlikely ever to produce the kind of results that the Government intended when the clause was introduced. I beg to move.
§ Lord Cope of Berkeley
My Lords, I had thought that I might leave it to the Government to defend the inclusion of this clause in their Bill, which I presume they will do in a moment. However, I should like to respond to one or two of the points made by the noble Lord in moving the amendment.
The noble Lord rightly said that this provision has been in force in the Republic of Ireland for some time and has led to some convictions. I understand that that is the case. I sometimes find it difficult to explain to the Republic why in Northern Ireland, in some respects, including this, we have weaker laws against terrorism than they do. In one sense we have the same problem; we are dealing with the same terrorists. But obviously it is a greater problem because the terrorists are much more active in Northern Ireland than in the Republic.
The noble Lord, Lord Goodhart, also stated that the decision should be one for the court, with which I agree, and would remain one for the court. However, the nub of the reason for my intervention is that the noble Lord said that a policeman is not an expert. I realise that he was speaking as a lawyer and expressing a technical view of who is an expert in a court and may 203 give an opinion. It is my view that in Northern Ireland the police are the real experts on terrorism and on who are the terrorists. This applies only to Northern Ireland. It is the police who have been so severely threatened for such a long time. It is they who have studied the terrorists most carefully.
§ 6.15 p.m.
§ Lord Goodhart
My Lords, I am grateful to the noble Lord, Lord Cope, for giving way. Perhaps he would accept that this was not so much my view as that of the noble and learned Lord, Lord Lloyd of Berwick. Perhaps he would also accept that the police are, in a sense, experts on terrorism in Northern Ireland. However, they are not experts in the legal sense. They are not experts on the subject of whether Mr X or Ms Y is or is not personally a terrorist. That is not an expert question in terms of the law.
§ Lord Cope of Berkeley
My Lords, I am not an expert in the law. I accept the expertise of the noble Lord and of the noble and learned Lord, Lord Lloyd of Berwick, as regards the legal position. However, I still believe that the police, particularly in Northern Ireland, are the ones who know the terrorists best, in every sense of the word, and in the deepest sense. They have every reason, both professional and personal, to do so. I believe that without other evidence—this cannot be done on a policeman's word alone—a court would sometimes find it valuable to have a senior policeman, a superintendent, as is laid down, express what seems to me to be, even if not in the legal sense, an expert opinion on the matter. I therefore support the clause.
§ Lord Lester of Herne Hill
My Lords, perhaps I may explain briefly some additional reasons for supporting the amendment. I hope that in his reply the noble and learned Lord will be able to explain why the Government consider Clause 108, read with Clause 109, because they are inter-related, to be compatible with Article 6 of the European Convention on Human Rights. I say that because the Government committed themselves, when asked, to provide their reasons for considering a provision to be compatible.
The Government will know that the Northern Ireland Human Rights Commission gave a full briefing on this matter and expressed particular concern about Clause 108. The commission pointed out that Clause 108 permits a court to admit police opinion evidence, that is, hearsay evidence, into evidence in criminal proceedings, although recognising that a defendant cannot be convicted solely on the basis of that evidence.
The commission also pointed out that Clause 109 further permits a court to draw adverse inferences from a defendant's failure during questioning to,mention a fact which is material to the offence and which he could reasonably be expected to mention".Again, a defendant cannot be convicted solely on the basis of such evidence. However, the commission pointed out that it appears that a defendant may be 204 convicted using a combination of evidence admitted under Clauses 108 and 109. That seems to be the position.
The existing equivalent power comes in Section 30A of the Emergency Powers Act, which to date does not seem to have been relied on according to the commission in Northern Ireland. The commission understands that the police in Northern Ireland are reluctant to use that section in court.
The relevant provision of the European convention is Article 6(3):Everyone charged with a criminal offence has … the right … to examine or have examined witnesses against him'".In its briefing the commission points to a well-known line of judgments of the European Court of Human Rights in cases like Engel, Kostovski, Doorson and Van Mechelen, which essentially say that convictions should not be based solely or decisively on hearsay evidence. The safeguard in the Bill is that they should not be based "solely" on that evidence.
The commission points out that it holds the same view as that held by the noble and learned Lord, Lord Lloyd of Berwick, in the debate to which my noble friend Lord Goodhart referred on the Criminal Justice (Terrorism and Conspiracy) Bill 1998; that is, that a violation of Article 6 is likely to occur when a conviction is based not solely on police opinion evidence but decisively under Clause 108, or a combination of police opinion evidence and adverse influences under Clauses 108 and 109.
If the Minister has not seen the brief from the Northern Ireland Commission of Human Rights, and had those points drawn to his attention, I understand that he may wish to deal with this matter by way of letter or at Third Reading. But if he is ready to explain his answers to those points I shall be grateful. Otherwise, this may be another example where we are legislating in a way that will have to be put right afterwards in litigation, if ever the point arises.
As my noble friend Lord Goodhart said, it seems unlikely that Clause 108 will ever be able to be applied in practice. It will therefore be a provision written in water as regards the law. And although we may draw great satisfaction from such legislation, if that is the true position and it will not be enforced in practice by the courts, the House is entitled to know that.
§ Lord Beaumont of Whitley
My Lords, in his attempt to establish that senior police officers are experts, the noble Lord, Lord Cope, demolished his own case. One of his arguments was that they were experts because they had been on the receiving end of terrorism for so long. I hope that does not misconstrue what he said.
The last thing one wants in an expert is someone who is emotionally or personally involved. The reason one wants an expert in a court of law is that he is someone who will put forward the facts and the arguments as they exist without personal bias. The noble Lord, Lord Cope, shot himself in the foot, if I may say so, and I support the amendment as it stands.
§ Lord Dubs
My Lords, it would be difficult to find anybody in Northern Ireland who was not emotionally 205 involved in the tragic events at Omagh. That had a traumatic effect on everybody. I doubt it is possible to find any member of the RUC, professional and disciplined as they are, who was not involved in that event because it had such a cataclysmic impact on the whole community.
Having said that, we are all aware that there are many terrorists in Northern Ireland who are known to the RUC—or in southern Ireland known to the Garda—who are never brought to justice because there is insufficient evidence to convict them. In some instances they may not be guilty of the offence which the police believe they perpetrated. But I am fairly confident that in many instances both the Garda and the RUC know who the guilty people are and do not have the evidence to bring them before the court. With the exception of one person who was charged, to date none of the perpetrators of the Omagh atrocity has been charged, and yet there is reason to believe that many of them are known to the Garda and the RUC. Again, there is no evidence.
I say that simply as an introductory comment to this debate on Clause 108, given that I was involved as a Minister with the original Bill when it was brought before this House, along with my noble and learned friend the Attorney-General. When we are dealing with difficult matters and pushing democracy as far as it is safe so to do, the question is whether the response is proportionate to the evil we are trying to tackle. Although for many offences I would not want a Clause 108, in the case of terrorism as extreme as Omagh the response contained in that clause is proportionate to the evil done to society in Northern Ireland, given the safeguard.
The noble Lords, Lord Lester and Lord Goodhart, referred to the safeguard, but I feel that subsection (3)(b) is significant. It says,the accused shall not be committed for trial, be found to have a case to answer or be convicted solely on the basis of the statement".I have more faith in the discernment and objectivity of the judiciary in Northern Ireland than suggested by the speeches we have heard this evening.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble Lord for giving way. Does he realise that we were not in any way disparaging the judiciary in Northern Ireland? On the contrary; we were attempting to explain that, such is the commitment of the Northern Ireland judiciary to the presumption of innocence and the right to a fair trial, it is highly improbable that Clause 108 as it stands will ever be able to be invoked. That is why I described it as a provision written in water and therefore one which ought not to be made part of our law.
§ Lord Dubs
My Lords, I appreciate that comment. In that case we are both agreed as to the high standards of the judiciary in Northern Ireland. I suggest that is an additional safeguard for those who have doubts about Clause 108.
206 I repeat, of course we are not overenthusiastic about having to have such a clause on the statute book. But it is proportionate to the evil with which we are dealing and that is a justification for including it in the Bill.
§ Lord Avebury
My Lords, the noble Lord, Lord Dubs, took us back to the events of 1998 and the Bill which was introduced when he was still a Minister in the Northern Ireland Office. I remember the speed with which that legislation was rushed through your Lordships' House and I warned at the time how dangerous it was to enact far-reaching legislation of this kind in response to an event, however terrible, which caused tremendous concern among the public. But that was the wrong way in which to enact legislation.
The fact that we are adopting provisions contained in the Criminal Justice (Terrorism and Conspiracy) Act is not a convincing argument to those of us who objected to the process in the first place. Not only is my noble friend's example of the advice given to us by the Northern Ireland Human Rights Commission relevant in considering this matter, but so also is the similar briefing we received from Amnesty International, which I am sure the noble and learned Lord, Lord Falconer, must have seen.
I suspect that the noble and learned Lord will not need to make use of my noble friend's suggestion that he may wish to defer a definitive answer to these points until he has had an opportunity of writing. The department must have apprised him not only of what Professor Brice Dickson said but also of the opinions of Amnesty International; that is, that conviction could be obtained on the basis of the opinion of a police officer supported by inferences drawn from a failure to disclose material information under the provisions of Clause 109. They say that this is not only a violation of Article 6 of the European Convention, as my noble friend pointed out, but that it breaches Articles 14(2) and 14(3) of the International Covenant on Civil and Political Rights.
The noble Lord, Lord Dubs, said that in the circumstances we faced in Northern Ireland following the Omagh atrocity, we pushed democracy as far as it was safe to do so. That was a very telling and revealing phrase. In my opinion, we should always have a safety margin in defending democracy. Just as in designing a building so that it exceeds any load that might conceivably be placed on it by a factor of several orders of magnitude, so, in defending democracy, we must have a sufficient margin between the legislation that we enact and the limits to which democracy is fully tested—
§ 6.30 p.m.
§ Lord Avebury
With respect, the legislation that the noble Lord, Lord Dubs, piloted through the House in the Summer Recess of 1998 did not give us that safety margin. As I pointed out at the time, it is the only time 207 in the history of Parliament that criminal law has been enacted in the middle of the Summer Recess. It has never happened before. Yet your Lordships rushed that provision through the House, and we are now enacting it in permanent law.
We should think not once but several times before we insert this provision into a Bill which is going to stand the test of time, but which may test not only the ability of the courts in Northern Ireland but democracy itself. It has never been used, as the Human Rights Commission of Northern Ireland has pointed out, and the police in Northern Ireland must have good reasons for not using it in that context. If it is going to lie on the statue book as a dead letter, we are making the mistake, which Parliament should never do, of putting measures on to the statue book as a gesture when we know that they are never going to be used by the courts.
§ Lord Marlesford
My Lords, in relation to any offence, however heinous, wherever committed, it is surely axiomatic that conviction must depend upon evidence. I recognise that in the special circumstances of terrorism generally, and terrorism in Northern Ireland in particular, it may perhaps be necessary to change the rules relating to the obtaining of evidence and how it is obtained, and to change the procedures by which the sources of evidence are protected. I recognise that. What I cannot find myself persuaded to accept is that there should be a different level of quality of evidence.
I sympathise with the noble Lord, Lord Goodhart. The essence of his point is that we are seeking to write into legislation something which proscribes a different quality of evidence which would or might lead to conviction.
§ Lord Molyneaux of Killead
My Lords, I intervene very briefly, not to contradict or differ from what the noble Lord has just said, but for the benefit of those of your Lordships who have a fixation about the reliability of RUC officers. The suggestion is that, because they have been murdered in their hundreds, they might have a built-in resistance or enmity towards certain types of criminal.
I realise that the noble and learned Lord has enough on his plate at present, but perhaps he can give some thought in the future to whether it would be more acceptable if the powers that be invited the Deputy Director of MI6 to give the evidence rather than an RUC officer? It would possibly be even more detailed than anything that an RUC officer might produce. To those who may say that MI6 is not supposed to operate within the United Kingdom, I say that anyone who believes that will believe anything.
§ Lord Hylton
My Lords, I should like to say how much I agree with the noble Lords, Lord Avebury and Lord Marlesford.
§ Baroness Park of Monmouth
My Lords, I very strongly support what has been said by the noble Lord, Lord Dubs. I recognise the difficulties. However, it 208 seems to me that the people of Omagh—and by extension the people of Northern Ireland—need to have justice done and to see it done. We know that at present the RUC has decided that, were it to proceed as the Act of 1998 allows, it would indeed be taken to the Court of Human Rights and overruled.
Nevertheless, given the provision in this draft legislation, I cannot understand why it is improper because it would not be only on the basis of the evidence of an officer. I cannot understand why the existence of evidence that someone is a terrorist, who was in a place at the right time, should not be brought to court. It just may give courage to witnesses to come forward. They have not come forward, but they have not been given an opportunity to do so. In my opinion, it would be wrong to leave any stone unturned which would enable those people to be brought to justice. Given the provision of the safeguards in the legislation, I cannot see how that could be regarded as improper. It is more likely to secure justice than doing nothing at all.
§ Lord Desai
My Lords, 1 find myself in a dilemma. I have heard what has been said by my noble friend Lord Dubs, for which I have a lot of sympathy. I have also heard what the noble Lord, Lord Goodhart, has said. It may be that a very stringent law was necessary to catch the killers of Omagh. Nobody has yet been caught. That may be because sufficient evidence has not been obtained, for which we shall have to wait patiently, or because the police have decided that this particular piece of legislation which was passed in 1998 is not of much help either way, and therefore they have not invoked the provisions of this particular clause. I should like to know which of the two is the real explanation.
If it is an ineffective but stringent piece of legislation which pushes democracy beyond the limits that we would like to set, we should not have it. If it is both ineffective and creates a serious violation of human rights, there is greater reason for not having it. It would therefore be very helpful to know whether this will be an effective weapon in the hands of the authorities and whether there is any evidence for this.
§ Lord Falconer of Thoroton
My Lords, my noble friend Lord Dubs described the effect of the atrocity at Omagh. It is right that the Government should respond to that atrocity in a way that is proportionate and appropriate. We believed at the time that this response was proportionate and appropriate, and we continue to believe that that is the position. Indeed we believe that it would be wrong to change the provisions now.
In the course of this short debate, these provisions have received considerable support from all sides of the House. As I understand it, the argument for saying that they should be withdrawn is threefold. First, it is said that the provisions go too far. They go, as the noble Lord, Lord Goodhart, put it, "beyond the limits of the law". Secondly, they infringe the Human Rights Convention and/or the Civil and Political Declaration by the UN, referred to in the Amnesty International 209 Report. Thirdly—and perhaps contradictory to the first two points—they will in any event be of no avail at any stage.
With regard to the first point that it goes too far, I should point out that the effect of the provision contained in Clause 108 is that an officer above the rank of superintendent can give evidence of someone's membership of a proscribed organisation. That officer can be cross-examined on the evidence that he gives. The effect of the clause is only to make the evidence admissible; it is entirely for the judge to determine what weight to attach to that evidence. The weight that he attaches to it will, presumably, depend upon such answers as the officer gives in the course of cross-examination. Like everyone in this House, I am second to none in my admiration for the Northern Irish judiciary. I am quite sure that they would be as good as any judiciary in the world in ensuring that the provision is properly applied.
Secondly, that evidence alone cannot be the basis of a commitment for trial or a conviction: it must be supported by other evidence. Thirdly, in relation to the combination of silence, on the one hand, and the evidence on the other, this could, on the face of it, provide a conviction. However, before any adverse inference in relation to silence can be drawn, the defendant must have had the opportunity to take the advice of a solicitor. Again, the evidence of the officer and the evidence of silence do not compel a conviction. It is entirely a matter for the court to determine what the right conclusion is in relation to such cases. I do not think that the provision goes too far. I believe that there are appropriate safeguards in place. If one looks at the matter from a standing start, as it were, it seems to be an entirely appropriate response.
Does it infringe the convention or the declaration? Those two arguments have been advanced in relation to why it infringes the convention or the declaration. First, it is hearsay and, therefore, there must be a proper opportunity to test the evidence. That opportunity is there from the legal system that permits appropriate, proper and testing cross-examination of the evidence. Secondly, it has been said—
§ Lord Goodhart
My Lords, I am grateful to the noble and learned Lord for giving way. Surely the police officer concerned cannot be compelled, for security reasons, to answer questions in cross-examination that might disclose the sources of his opinion. Will that not make cross-examination an ineffective defence? Alternatively, is it the intention that the police officer should be compelled to disclose the source of his information?
§ Lord Falconer of Thoroton
No, my Lords. I should imagine that the usual rules in relation to public interest immunity would not apply in that respect. However, that does not affect my basic point. The case must be made out. If the case is not made out as a result of a refusal to answer questions on perfectly legitimate grounds, no doubt the court will so find. But, in each case, it will depend on whether or not the evidence is sufficient to found a conviction.
210 I return to the position under the convention and under the declaration. Is it possible to test the evidence? Yes it is, because it is subject to cross-examination under our system, which plainly complies in principle with Article 6. The other point made by the noble Lord, Lord Lester of Herne Hill, was that a person should not be convicted solely and decisively on hearsay evidence. Safeguards have been built in to the provision in that respect. The legislation specifically says that a person cannot be convicted on that evidence alone. I believe that the position under the convention is dealt with by those points. It is a perfectly robust position for the Government to take.
§ Lord Lester of Herne Hill
My Lords, I should point out that there is no difference between the covenant and the convention, so we can forget about the covenant. I shall concentrate on the convention. Does the noble and learned Lord agree that the principle of equality of arms means that no witness must have a decisive weight—an unfair advantage—in the course of a criminal trial, or, for that matter, of a civil trial? If we have a position where opinion evidence (which is hearsay) given by a police officer could be tested by cross-examination ineffectually because he cannot be compelled to disclose his sources for security reasons, that would run the risk of rendering the trial one in which there is inequality of arms and, therefore, unfairness. If that is so, does the noble and learned Lord agree that a judge would have no alternative but to find that the prosecution case had not been made out? It means that the extreme nature of the provision could lead to an ineffectual result. Therefore, there is no contradiction in saying that this is extreme and, for that reason, ineffective.
§ Lord Falconer of Thoroton
My Lords, that takes us back to the essential point: it will depend upon what answers the officer gives in cross-examination. This would certainly be a Diplock trial and, therefore, the judge would then have to proceed on the basis of that evidence. He would have to ask himself, "Is there enough here which makes it possible for me to conclude that I should convict the defendant beyond reasonable doubt?". If there is insufficient material available to reach such a conclusion, I have no doubt that the Northern Irish judiciary would reach that conclusion.
The final point made by the noble Lord was that this provision will be of no avail because it will never be used. It is very difficult for us to put together all the possible circumstances in which a charge might be brought. There may well be cases where this provision, and the one regarding silence, would be of value to the prosecuting authorities in Northern Ireland. If there is a realistic chance that it could be of value to the prosecuting authorities, then, both for the reason of its effectiveness and also for the reason given by the noble Baroness, Lady Park, it should be in the armoury of the criminal justice authorities in Northern Ireland. Therefore, the reasons advanced by noble Lords do not hold water. We believe that the provision should 211 stay. In the light of my remarks, I very much hope that the noble Lord will be minded to withdraw his amendment.
§ 6.45 p.m.
§ Lord Goodhart
My Lords, again, I obviously regret that the noble and learned Lord has been unable to offer any movement on the part of the Government in the direction required. Before I deal briefly with the Minister's response, I should like to comment on the remarks made by the noble Lord, Lord Dubs. I believe that everyone in the House has the highest admiration for the work carried out by the noble Lord, Lord Dubs, in Northern Ireland. Therefore, it gives me no pleasure to have to disagree with him on this issue.
However, there is a problem here and one which was illustrated by the noble Lord's remarks. He talked about the fact that there have been terrorist outrages in Northern Ireland where the police have known who committed them but have not had the evidence that would lead to a conviction. Nothing in this amendment would affect that position as regards conviction for the commission of an outrage, because Clause 108 applies solely to the one offence of membership of a terrorist organisation. More often than by anything else, miscarriages of justice are perhaps caused by the very cases where the police think they know who committed the offence, but where they do not have the evidence to prove it.
In the general principle, it is plain that there is no case to justify extending the ability of the police to give evidence as to who committed an offence simply as a matter of opinion—or to state something as a matter of their opinion—when that opinion is not based on evidence that will stand up in court. Therefore, I do not think that the argument put forward by the noble Lord could justify the provisions of Clause 108.
I turn now to the defence of the noble and learned Lord of Clause 108. The reference to PII is really the nub of the matter. In a sense, the purpose of Clause 108 is to get around the problem of public interest immunity indirectly by giving power to bring in evidence through a police officer's opinion which the Government could not bring directly to court because they are not prepared to compromise their sources. I do not think that this is a legitimate way of handling a matter of this kind.
I am not happy with the continuation of Clause 108 in this Bill. Nevertheless, despite the fact that we have received support from several Members of your Lordships' House who do not sit on our Benches, it is clear that both the Government Front Bench and the Conservative Front Bench would oppose any attempt to remove Clause 108 from the Bill. Any attempt to do so would therefore clearly be heavily defeated. Even so, I would be tempted to press the amendment were it not for the fact that I am convinced that for the reasons given by the noble and learned Lord, Lord Lloyd of Berwick, on previous occasions, this is a clause which in practice is most unlikely to be used. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 113 [Transitional provisions]:
Lord Bach moved Amendment No. 24:
Page 54, line 9, at end insert—
("( ) Paragraph 18A of Schedule 9 shall have effect only in relation to an offence alleged to have been committed after the coming into force of that Schedule.").
§ The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.
§ Clause 117 [Consent to prosecution]:
§ [Amendments Nos. 25 and 26 not moved]
Lord Bach moved Amendment No. 27:
Leave out Clause 117 and insert the following new clause—
§ CONSENT TO PROSECUTION
§ (".—(1) This section applies to an offence under any provision of this Act other than an offence under—
- (a) section 36,
- (b) section 51,
- (c) paragraph 18 of Schedule 7,
- (d) paragraph 12 of Schedule 12, or
- (e) Schedule 13.
§ (2) Proceedings for an offence to which this section applies—
- (a) shall not be instituted in England and Wales without the consent of the Director of Public Prosecutions, and
- (b) shall not be instituted in Northern Ireland without the consent of the Director of Public Prosecutions for Northern Ireland.
§ (3) Where it appears to the Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland that an offence to which this section applies is committed for a purpose connected with the affairs of a country other than the United Kingdom—
- (a) subsection (2) shall not apply, and
- (b) proceedings for the offence shall not be instituted without the consent of the Attorney General or the Attorney General for Northern Ireland.").
§ The noble Lord said: My Lords, in moving Amendment No. 27 I wish to speak also to Amendment No. 34. I shall be brief.
§ In Committee I said that the Government would bring forward an amendment at Report stage covering similar ground to that in Amendment No. 27 and similar ground to that in the amendments then before the Committee moved by the noble Lord, Lord Goodhart, concerning consent to prosecutions in what might be termed "international" cases. This we have done. Our amendments speak for themselves. As far as international cases are concerned, it should be the Attorney General who has to give his consent to a prosecution taking place. I beg to move.
§ Lord Goodhart
My Lords, we on these Benches are most grateful to the Government for taking on board the points we made in Committee. We are happy to support the Government's amendment.
§ Lord Cope of Berkeley
My Lords, we also made similar remarks earlier in our debates. I support the amendment.
On Question, amendment agreed to.
§ Clause 118 [Defences]:
Lord Bach moved Amendment No. 28:
Page 55, line 10, leave out ("sufficient evidence") and insert ("evidence which is sufficient").
§ The noble Lord said: My Lords, in moving Amendment No. 28 I wish to speak also to government Amendment No. 29. These are minor and technical amendments to make sure that Clause 118, which was added to the Bill in Committee, works for Scotland. The reason they are needed is that Clause 118 as presently drafted uses the expression "sufficient evidence". I am advised that this expression can have a technical meaning under Scots law and, quite simply, could itself require a shift in the burden of proof to the prosecutor. In the context of Clause 118, noble Lords will appreciate that the confusion which this could cause for Scotland is certainly not what we intended—which was to refer to evidence which is good enough to give rise to issues about the matter before the court.
§ Fortunately, by simply turning the words round from "sufficient evidence" to "evidence which is sufficient" we have been able to keep the meaning the same as it is at present for England and Wales and Northern Ireland while at the same time removing the risk of any confusion regarding the application of the clause in Scotland. I beg to move.
Lord Bach moved Amendment No. 29:
Page 55, line 19, leave out ("sufficient evidence is adduced") and insert ("evidence is adduced which is sufficient").
§ Clause 123 [Orders and regulations]:
Lord Bach moved Amendment No. 30:
Page 58, line 33, leave out ("1(2)(b)") and insert ("2(2)").
§ The noble Lord said: My Lords, in moving Amendment No. 30 I wish to speak also to Amendments Nos. 32, 33, 36 and 37.
§ The substantive amendments in this group are to Schedule 1 to the Bill. Noble Lords will recall that Schedule 1 is a mechanism for keeping alive the Northern Ireland (Emergency Provisions) Act between Royal Assent and the commencement of Part VII of the Bill next year.
§ When the Bill was introduced, we had to bear in mind two possibilities. The first—perhaps a rather optimistic one—was that Royal Assent would be received before 15th June, the second that Royal Assent would be after that date. Schedule 1 was therefore drafted to cover both scenarios.
§ Now that Royal Assent will obviously be after 15th June, we consider that these technical provisions are best redrafted so as to proceed on that basis. We hope that in doing so we have made Schedule 1 easier for the reader to follow. I beg to move.
§ [Amendment No. 31 not moved.]214
§ Clause 128 [Commencement]:
Lord Bach moved Amendment No. 32:
Page 59, line 33, leave out ("2(2)") and insert ("2(1)(b) and (2)").
§ The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.
§ Clause 129 [Transitional provisions]:
Lord Bach moved Amendment No. 33:
Page 60, line 3, leave out subsection (2) and insert—
- (a) a person is detained by virtue of a provision of the Northern Ireland (Emergency Provisions) Act 1996 (as continued in force by virtue of Schedule 1 to this Act), and
- (b) the provision ceases to have effect,
§ The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.
Lord Bach moved Amendment No. 34:
Page 60, line 29, at end insert—
("(8) Section (Consent to prosecution) shall apply to the institution of proceedings after commencement of that section whether the offence to which the proceedings relate (which may, by virtue of subsection (4) above, be an offence under a provision repealed by this Act) is alleged to have been committed before or after commencement of that section.").
§ The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 27. I beg to move.
§ [Amendment No. 35 not moved.]
§ Schedule 1 [Northern Ireland (Emergency Provisions) Act 1996:
Lord Bach moved Amendments Nos. 36 and 37:
Page 61, line 5, leave out paragraphs 1 to 3 and insert—
("1.—(1) This paragraph applies to any of the following if and in so far as it is in force immediately before the passing of this Act by virtue of an order under section 62(3) of the Northern Ireland (Emergency Provisions) Act 1996 (duration)—
- (a) a provision of the Northern Ireland (Emergency Provisions) Act 1996 (other than one mentioned in sub-paragraph (2)),
- (b) a provision of the Prevention of Terrorism (Temporary Provisions) Act 1989, and
- (c) section 4 of the Criminal Justice (Terrorism and Conspiracy) Act 1998 (forfeiture orders).
- (a) section 26(1)(b) (power of entry on authority of Secretary of State),
- (b) section 35 (wearing of hoods), and
- (c) section 50 (explosives factories).
§ 2.—(1) A provision to which paragraph I applies shall continue in force for the period of 12 months starting with the day on which this Act is passed.
§ (2) The Secretary of State may by order provide for a provision to which paragraph 1 applies to continue in force for the period of 12 months immediately following the period mentioned in sub-paragraph (1).215
§ 3.—(1) The powers under section 62(3)(a) and (c) of the Northern Ireland (Emergency Provisions) Act 1996 shall continue to he exercisable in relation to a provision to which paragraph 1 applies in respect of any period falling within—
- (a) the period mentioned in paragraph 2(1), or
- (b) a period specified in relation to that provision under paragraph 2(2).
§ (2) The power under section 62(3)(b) of the Northern Ireland (Emergency Provisions) Act 1996 shall continue to be exercisable in relation to a provision to which paragraph 1 applies at any time during—
- (a) the period mentioned in paragraph 2(1), or
- (b) a period specified in relation to that provision under paragraph 2(2).
§ 3A. The Secretary of State may by order provide for a provision to which paragraph 1 applies—
- (a) to cease to have effect on a specified day;
- (b) to cease to be capable of being the subject of an order under section 62(3) of the Northern Ireland (Emergency Provisions) Act 1996.
§ 3B. The continuance in force of a provision by virtue of paragraph 2 is subject to any order made by virtue of paragraph 3 or 3A.
§ 3C.—(1) A provision of the Northern Ireland (Emergency Provisions) Act 1996 to which paragraph 1 does not apply shall continue to have effect for the purposes of, or in so far it relates to, any provision to which that paragraph does apply.
§ (2) While Part I of Schedule 1 to that Act (scheduled offences) has effect by virtue of this Schedule, the following shall also have effect—
- (a) Part III of that Schedule (extra-territorial offences), and
- (b) sections 3, 10 and 11 of that Act so far as they relate to offences which are scheduled offences by virtue of that Part.").
§ Page 61, line 41, leave out ("paragraph 1(2)") and insert ("this Schedule").
§ The noble Lord said: My Lords, these amendments were both spoken to with Amendment No. 30. I beg to move.
Lord Bach moved Amendment No. 38:
Page 62, line 2, leave out ("(4)") and insert ("(5)").
§ The noble Lord said: My Lords, in moving Amendment No. 38 I wish to speak also to Amendments Nos. 42, 43, 44, 45, 52 and 53. This amendment and the others in this group are minor and technical drafting amendments. They do not change the effect of the Bill in any way. Of course I would be happy to explain each of them further if noble Lords wish. I beg to move.
Lord Bach moved Amendment No. 39:
Page 62, line 38, leave out from ("may") to ("appeal") in line 39.
§ The noble Lord said: My Lords, in moving Amendment No. 39 I wish to speak also to Amendments Nos. 40, 50 and 51.
§ One of the improvements this Bill makes to the EPA is to introduce a right of appeal against a refusal by the Secretary of State to grant a licence to a person wishing to provide private security service in Northern Ireland. A refusal to issue a licence may be based on sensitive 216 intelligence—the purpose of the licensing regime is to prevent funds being raised for paramilitary organisations.
§ The Bill ensures a right of appeal to the High Court but where there is a need to protect intelligence material the Secretary of State may certify that the refusal to issue the licence was to prevent funds reaching the paramilitaries. When such a certificate is issued, the High Court proceedings stop and the appellant may, if he chooses, appeal to the tribunal established under the 1998 Northern Ireland Act. That tribunal's proceedings are governed by rules made by the Lord Chancellor. Amendments Nos. 40 and 51 provide for those rules to have effect with the changes necessary to reflect the expansion of the tribunal's remit, subject to any later changes to the rules themselves.
§ Amendments Nos. 39 and 50 are minor drafting changes to clarify the position that the tribunal rules are indeed the rules which will apply in private security services cases. Without these amendments, we are concerned that the impression might be given that we intend to make separate rules. I trust that these are uncontroversial amendments. I beg to move.
Lord Bach moved Amendment No. 40:
Page 62, line 42, at end insert—
("(8) Rules made under section 91 or 92 of that Act which are in force immediately before the passing of this Act shall have effect in relation to a certificate under sub-paragraph (5)—
- (a) with any necessary modifications, and
- (b) subject to any later rules made by virtue of sub-paragraph (7)(b).").
§ The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 39. I beg to move.
§ Schedule 2 [Proscribed Organisations]:
§ [Amendment No. 41 not moved.]
§ 7 p.m.
§ Schedule 4 [Forfeiture Orders]:
Lord Bach moved Amendments Nos. 42 to 45:
Page 75, line 3, leave out ("in any case").
Page 77, line 21, leave out ("or") and insert ("and").
Page 77, line 37, leave out ("within the meaning of section 14").
Page 88, line 35, leave out ("Economic Development") and insert ("Enterprise, Trade and Investment").
§ Schedule 7 [Port and Border Controls]:
Lord Bach moved Amendment No. 46:
Page 109, line 9, at end insert ("as soon as is reasonably practicable").
§ The noble Lord said: My Lords, Amendment No. 46 responds to a point raised by the noble Viscount, Lord Simon, and the noble Lord, Lord Brabazon of Tara, during the Committee stage. I agreed to consider this further and report back to the House.217
§ The Government believe that there are sound reasons for the United Kingdom to carry out checks at ports to prevent and detect terrorists and terrorist activity at our borders. The provision of passenger and crew details is a very important part of that process. But the Government also recognise that requirements on carriers to co-operate have to be reasonable, proportionate and conducted sensitively so as to minimise the impact on the travelling public and business. We also recognise that we need to work closely with carriers and operators at ports to achieve this. A partnership approach is required.
The amendment provides that owners and agents of ships or aircraft should provide the police with passenger information,
as soon as is reasonably practicable".
§ It was, of course, never the Government's intention in drafting this provision that carriers would be asked to provide information within unreasonable time scales. We felt that it went without saying that the police would ask for information to be provided within reasonable time frames, bearing in mind the particular circumstances of the case.
§ But I recognise that there has been some concern on this point and that an explicit reference to "reasonableness" on the face of the Bill may provide additional comfort. As part of our on-going partnership approach in combating terrorism, I am happy to bring forward this amendment today. I beg to move.
§ Lord Greenway
My Lords, I am sure that the Minister did not wish to omit my name on purpose, but I moved a similar amendment at an earlier stage. On behalf of the other noble Lords, who were not in their places a moment ago, I thank the Government for taking our point on board and for bringing forward this amendment, which achieves what we were asking.
§ Viscount Simon
My Lords, in speaking to Amendment No. 46A, which is grouped with this amendment, like the noble Lord, Lord Greenway, I am grateful for the government statement made in Committee that carriers would not be prosecuted for passing on information that turned out to be false. However, this still leaves the air and sea carriers without the statutory defence accorded to the financial institutions in Schedule 6. I am at a loss to understand why the Government should consider this disparity of treatment acceptable. Transport operators certainly find it exceedingly odd.
I understand that the board of airline representatives has invited the Home Office officials involved to view its reservation systems in order to ensure a proper understanding of what information is contained about passengers and what is not. Had the carriers been consulted prior to the introduction of the Bill, as the banks were, I suspect that the defence would have been granted to them earlier. Regrettably, consultation did not take place.
218 I should make it clear that the carriers seek only to have the defence in cases where they are unable to provide the information because they simply do not have it. It is not a case of being obstructive by withholding information. The banks have been allowed this defence in similar circumstances, and I am simply proposing that the air and sea carriers should be treated equally when the police come to invoke their powers.
At the beginning of my remarks I praised the Government for their assurances in respect of carriers passing on information which turned out to be bogus. There is no way in which carriers can verify passenger information because passengers are not required to carry passports with them when travelling within the common travel area. Transport operators' experience suggests that celebrities are among the most loyal of customers, even to the extent of appearing several times on the same passenger list.
The worth of such passenger information must obviously therefore be questioned. I ask my noble friend to consider how information of this kind could be of any help to the police in countering terrorism.
§ Lord Brabazon of Tara
My Lords, I support the amendment. I apologise for being slightly late; things have moved on rather quickly.
I thank the Government for introducing Amendment No. 46, which is very helpful from the point of view of the carriers. The words used by the noble Lord, Lord Bassam, in Committee—which are now recorded in Hansard—are also very helpful to carriers.
The Minister will of course recognise the wording of Amendment No. 46A in that it is taken precisely from Schedule 6 to the Bill which gives the financial institutions exactly this kind of defence. If it is allowable for the financial institutions, why should it not also be allowable for the carriers? It seems to me that it is the same kind of information, and the noble Viscount has explained the difficulties that the carriers can have in providing it. As we said in Committee, there is absolutely no requirement within the common travel area for any papers to be carried by passengers. It would seem perfectly reasonable to give the carriers exactly the same defence as the financial institutions have in Schedule 6.
As I understand it—and as the noble Viscount said—the carriers were not consulted during the drafting of the Bill. Had they been so, they would have been able to inform officials from the Home Office exactly how they go about issuing their tickets and run their reservation systems. I understand that that is now happening, but perhaps it is a little late in the day.
I urge the Minister to give serious consideration to the noble Viscount's amendment and to explain why the financial institutions should have this defence and the shipping and airline companies should not.
§ Lord Greenway
My Lords, on behalf of the ferry companies, I, too, should like to be associated with the sentiments behind this amendment, having moved a 219 similar amendment at Committee stage. I do not think the Government will have changed their minds in the interim, but it would be nice to know that they have thought about it again.
§ Lord Cope of Berkeley
My Lords, we had some discussion on these general matters in Committee. The case has been made again by my noble friend Lord Brabazon, the noble Viscount, Lord Simon, and the noble Lord, Lord Greenway. I rise to express some sympathy with the points that lie behind Amendment No. 46A and to thank the Government for responding in the way that they have done in bringing forward Amendment No. 46.
§ Lord Bach
My Lords, I am grateful to the noble Lords who have spoken on this issue. I apologise to the noble Lord, Lord Greenway, for not having mentioned his name in the context of those who have helped us to come to the view expressed in our amendment as a result of what they said at Committee stage.
In Committee we discussed the need for a partnership approach between industry, the police and government in combating terrorism, and the important part that the provision of passenger information can play in this. We debated an amendment very much along these lines. Our amendment, to which I have already spoken, which specifies that passenger information should be provided by carriers and ownersas soon as is reasonably practicableprovides, we believe, a measure of reassurance that we are sensitive to industry concerns on this issue—and noble Lords have been kind enough to agree with that belief.
However, I am afraid that we do not think that the amendment brought forward by my noble friend Lord Simon, which is supported by other noble Lords, adopts the right approach in seeking to provide, in addition, a statutory defence that the information requested was not in the carrier's possession or that it was not reasonably practicable for the carrier to comply with the requirement.
A particular concern is that the first leg of the statutory defence—namely, that the information was not in the possession of the carrier—could at least, on a literal reading, allow a carrier to make no attempt at all to collect the requested passenger information. The carrier could then put forward a defence that that information was never in his possession. I am sure that that is not the intention here. An excellent record of co-operation is held between the carriers and the police. But that could he the effect were this amendment to be agreed.
Moving to the second limb of the proposed statutory defence, the debate on the order under the Bill will provide the opportunity to decide what types of information it will be reasonable to require of carriers. Once Parliament has agreed what types of information should be provided, and given that our amendment stipulates that that information should be 220 provided as soon as "reasonably practicable", we do not think that it is either necessary or right in addition to provide a statutory defence in the Bill to the effect that it is not practicable to collect the information.
The police will ask for this information in the context of on-going counter-terrorist inquiries and investigations. The police will not do this lightly. But when information is requested, information that Parliament has agreed the police may request, and to a reasonable timescale, we think it only reasonable to expect that information to be collected. Surely that reflects exactly what should be the partnership approach in tackling terrorism.
I hope that I have made it clear that we are committed to making the passenger information provisions work for all concerned: for the industry, for the travelling public and for the police. We all agree that the focus should be on working together to combat terrorism.
Before I sit down, I have been asked by a number of noble Lords a question about the defence set out in Schedule 6 to the Bill. In Committee a noble Lord suggested that it might have been an oversight on our part not to provide such a statutory defence regarding the non-provision of passenger information, because a similar provision existed under Schedule 6 in relation to the provision of financial information.
However, no oversight has taken place here. The provisions are different; that is why the related offences are constructed differently. The financial information schedule concerns approaching banks to see whether they hold accounts in certain names. If they do not, clearly they cannot provide the information, which is why that statutory defence is provided. Frankly, it makes less sense in the context of passenger information and could be abused, as I have already pointed out.
As regards the second proposed statutory defence—namely, that it is not reasonably practicable to comply with the requirement—this is provided for in the context of financial information primarily because the police may approach the banks with requests for them to search back through their records for historic information. Depending on the information systems in place, it simply may not be practicable to check that the information is available or to provide it.
However, we believe that the situation regarding passenger information is different. The police will be asking for information about passengers who are about to travel or who have just done so. Thus the wherewithal for collecting information will be to hand. Moreover, the police will be requesting that information,as soon as is reasonably practicable".In these circumstances we do not think it either necessary or right in addition to provide a defence that it was not reasonably practicable to collect and pass on the information. For those reasons, we cannot accept my noble friend's amendment. I hope that he and those who have spoken in support of the amendment will realise that, through their efforts, they have already achieved a great deal.
221 On Question, amendment agreed to.
Viscount Simon moved Amendment No. 46A:
Page 109, line 33, at end insert—
("(1A) It is a defence for an owner or agent of a ship or aircraft charged with an offence under paragraph 17(2) to prove either—
- (a) that the specified information requested was not in his possession; or
- (b) that it was not reasonably practicable for him to comply with the request.").
§ The noble Viscount said: My Lords, I thank my noble friend for his words regarding Amendment No. 46A. I am sure that we shall all study with interest what he has had to say. The chances are that I shall return to this point. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 8 [Detention]:
§ 7.15 p.m.
Lord Goodhart moved Amendment No. 47:
Page 114, line 42, at end insert—
("( ) Any part of the consultation heard by the qualified officer shall be treated as subject to legal privilege binding on the qualified officer.").
§ The noble Lord said: My Lords, we have now reached the final group of amendments. In speaking to Amendment No. 47, I should like to speak also to Amendment No. 48. However, since I tabled Amendment No. 48, I have discovered that the expressions "legal privilege" and "legal professional privilege" are not appropriate expressions in the law of Scotland. For that reason, Amendment No. 48 is defective.
§ Amendment No. 47 raises an issue on which I hope to receive a reassurance from the Government. The reason why a police officer may be required to listen to what is being said during the course of an interview between someone charged with an offence or who is being held under investigation and his or her solicitor is that there may be cases where, regrettably—although it certainly has happened—the accused might wish to pass on to the solicitor information which would enable evidence to be hidden or other damage to be done to the investigatory process. We accept that that is a legitimate excuse for providing a requirement that the interview should take place within the hearing of a police officer.
§ However, a problem arises where what is being overheard may perfectly well be the normal substance of an interview between client and solicitor in which the client gives to his solicitor an account of the facts as he sees them. In that case, if the police officer is not bound by professional privilege, that officer would be entitled to pass on to other members of the police force and ultimately to the prosecution the substance of what he has overheard. That information might in due course be of use to the prosecution in the trial because it would allow the prosecution to say that the accused's 222 evidence on a certain point was inconsistent with the original story as told to the accused's solicitor. That seems to us to be improper.
§ The legal professional privilege that attaches between a client and a solicitor—which does not of course extend to matters such as requesting assistance in hiding evidence—should also bind the police officer, so that that officer is equally prevented from passing on to the prosecution information about what he has overheard during the course of the consultations between client and solicitor. I hope that the Minister will be able to reassure me that this amendment is not necessary, but, if it is, it seems to me to be a point that should be covered by the legislation. I beg to move.
§ Lord Bach
My Lords, we believe that there are technical and policy reasons why we cannot accept these amendments. As regards the technical point, the noble Lord, Lord Goodhart, got there before me in his comment on the expression "legal privilege" in the language used in Scottish legal circles.
I shall turn directly to the policy issues here. On a substantive level, as we understand it, the concern of the noble Lord is to ensure that nothing passing between a person detained under Schedule 8 to the Bill and his solicitor should be available for use by the prosecution in subsequent criminal proceedings against the detainee.
§ Lord Goodhart
My Lords, that does not quite cover the burden of the amendment. It seeks to ensure that nothing which could be the subject of legal professional privilege as between client and solicitor should be capable of being passed on by the police officer who overhears the consultation. Matters that range outside professional privilege, which would undoubtedly cover an instruction to the solicitor to dispose of evidence, would not be covered by the privilege.
§ Lord Bach
My Lords, we believe that such a provision is unnecessary. The way the provisions in the Bill are framed, in that they provide that the officer in the interview must be uniformed and a uniformed member of the force, not connected with the detained person's case, indicates that the intention is not to collect information which may be later used in evidence against the detainee. Rather, the purpose is, as detailed in Schedule 8—in paragraph 8 so far as England and Wales and Northern Ireland are concerned and paragraph 17 so far as Scotland is concerned—is to prevent the compromise of terrorist investigation. These paragraphs make it clear that this is the only reason that a police officer may sit in on such an interview. That purpose is reinforced by the fact that such communications between the detainee and his solicitor under common law would be protected by legal privilege or its equivalent in Scotland, confidentiality. Thus we do not believe the amendments to be necessary In any event we think they are rather widely drawn. They appear to suggest, although the noble Lord has made it clear that they do not, that anything which is 223 discussed between a solicitor and his client should attract legal privilege. That is not so in ordinary cases and we do not think it should be the case in terrorist ones.
We accept that the prosecution must not be provided with legally privileged material. That does not mean of course that the police are prevented from taking any action in connection with anything overheard in an interview. For instance, if a detainee provides information, to take an extreme example, about an imminent terrorist attack, of course action may be taken to disrupt the bomb.
As I said in Committee, it is acutely uncomfortable to contemplate circumstances in which such provision may be needed. I emphasise to the House that it is only for the most exceptional cases; but it is important for it to be there. For the reasons that I have explained, we believe that the concerns of the noble Lord about the provisions are unfounded. I hope he will feel able to withdraw his amendment.
§ Lord Goodhart
My Lords, I am grateful to the Minister. I think that my worries have been disposed of by what he has said, and I am grateful that he has now put that on the record. In the circumstances I am happy to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 48 not moved.]
§ Schedule 9 [Scheduled Offences]:
Lord Bach moved Amendment No. 49:
Page 127, line 37, at end insert—
- (a) section 1 (unauthorised access to computer material),
- (b) section 2 (unauthorised access with intent to commit further offence), and
- (c) section 3 (unauthorised modification).").
§ Schedule 13 [Private Security Services]:
Lord Bach moved Amendments Nos. 50 and 51:
Page 138, line 45, leave out from ("may") to ("appeal") in line 46.
Page 139, line 2, at end insert—
("(4) Rules made under section 91 or 92 of that Act which are in force immediately before this paragraph comes into force shall have effect in relation to a certificate under this paragraph—
- (a) with any necessary modifications, and
- (b) subject to any later rules made by virtue of sub-paragraph (3)(b).").
§ Schedule 15 [Consequential Amendments]:
Lord Bach moved Amendments Nos. 52 and 53:
Page 147, leave out lines 13 to 17.
Page 148, line 12, at end insert—
§ (2) In section 88(2)(b) (meaning of "remanded in custody") for "section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989" substitute "section 41 of the Terrorism Act 2000".
§ (3) In section 101(12)(b) (meaning of "remanded in custody") for "section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989" substitute "section 41 of the Terrorism Act 2000".").