Terrorism Bill

HL Deb 20 June 2000 vol 614 cc159-246

3.17 p.m.

Report received.

Clause 1 [Terrorism: interpretation]:

Lord Bach moved Amendment No. 1:

Page 1, line 7, leave out subsection (1) and insert—

("(1) In this Act "terrorism" means the use or threat of action where—

1. (a) the action falls within subsection (1A),
2. (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
3. (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(1A) Action falls within this subsection if it—

1. (a) involves serious violence against a person,
2. (b) involves serious damage to property,
3. (c) endangers a person's life,
160
4. (d) creates a serious risk to the health or safety of the public or a section of the public, or
5. (e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(1B) The use or threat of action falling within subsection (1A) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.").

The noble Lord said: My Lords, first, perhaps I may apologise for the absence of my noble friend Lord Bassam, who has taken the Bill through the House thus far. He will of course be in his place at Third Reading. He is not here because he has been asked to represent the Home Office today in Charleroi in Belgium. Before he agreed to do so, he sought the permission of the Opposition Front Bench spokesman. The House will be interested to hear that he was granted that permission.

Lord Cope of Berkeley

My Lords, I confirm that it seemed to me to be in the national interest that the noble Lord, Lord Bassam, should be about his duties as the Minister with responsibility for football hooligans, even though it meant that other Ministers had to look after the Terrorism Bill.

Lord Bach

My Lords, I am grateful to the noble Lord, Lord Cope of Berkeley. Perhaps he teaches some of his Front Bench a lesson in manners. I know not.

I have had placed in the Printed Pa per Office and handed to opposition spokesmen the definition of terrorism that would result if the government amendments to Clause 1 and other clauses were accepted.

I shall speak to Amendments Nos. 1, 3, 4, 24 and 49, as well as the others grouped with them. In the light of the debates on Second Reading and in Committee in your Lordships' House, we have looked again at the definition of terrorism in Clause 1. We have always said that we were prepared to listen to concerns raised about the definition and we have tabled amendments in response to two specific: lines of argument. I hope that they will find favour with the House.

The first change that we propose addresses action designed seriously to interfere with or disrupt an electronic system. It is included to ensure that serious disruption to computer systems to advance a political, religious or ideological cause is covered. Many noble Lords from all sides pressed us during earlier stages of the Bill to take that step, particularly in the wake of recent events. Our amendment is an important improvement to the Bill. As a consequence, the amendments to Clause 113 and Schedule 9 also add offences under the Computer Misuse Act 1990 to the list of scheduled offences in Schedule 9, so that those offences in Northern Ireland can be treated in the same way as other offences that terrorists commit.

We have also introduced an explicit requirement that for an action to be considered terrorism its purpose must, in most circumstances, be to intimidate the public or influence a government. The exception is when firearms or explosives are used. We have provided that to ensure that, for example, assassinations for political or other purposes are definitely covered. Of course, normally the terrorist use of firearms or explosives is a wicked attempt to put the public at fear, and often to influence a government as well, but we do not want the police to feel hindered in any way from acting in situations that most, if not all of us would regard as terrorism—such as assassinations—because it was not clear that either of those elements was present.

I hope that the introduction of this second new element to the definition will be welcome. Many have commented that our definition was seriously flawed because it lacked an explicit link with the concept of terror. That has been rectified. I should add in passing that we have moved, as some had suggested, from speaking of serious violence to serious damage to property. I beg to move.

The Chairman of Committees (Lord Boston of Faversham)

My Lords, as Amendment No. 3 is also being spoken to and is in this group, I must point out that if Amendment No. 2 is agreed to, I cannot call Amendment No. 3.

Lord Cope of Berkeley

My Lords, Amendment No. 2 stands in my name and that of the noble and learned Lord, Lord Lloyd of Berwick, who cannot be with us this afternoon. Those who have looked at the amendments will see that Amendments Nos. 1 and 2 are remarkably similar. The noble and learned Lord and I think that the government amendment is entirely satisfactory and will meet the wishes that were expressed earlier in our debates.

The Minister has drawn attention to some of the changes in the definition of terrorism that we and others asked for, starting with the insertion of terror and intimidation. One of the extraordinary features of the Bill's original definition of terrorism was that it did not include terror. I am glad to say that it is now rightly included. The amendment also extends the definition to cover what is known in the jargon as cyberterrorism—the destruction of electronic systems. That is very important, because great damage can be caused to public life and the public can be held to ransom by computer hacking of one kind or another. Terrorists have already begun to do that and may do so a great deal more in the future.

It is also clear from how the amendment is inserted in the Bill that terrorism involving overseas countries and governments is included. That is also important. We do not want the United Kingdom to be the base from which terrorists operate against foreign governments in pursuit of foreign aims.

Amendment No. 49 rightly brings offences under the Computer Misuse Act 1990 committed in Northern Ireland into the list of scheduled offences that can be dealt with by the Diplock courts and all the associated machinery, for as long as it is necessary. Financial rackets and rackets involving computers can be just as damaging as bombs and guns in the hands of terrorists in Northern Ireland. Given the difficulties that there have been in courts in Northern Ireland in the past, it is important that those offences should be included in the list of scheduled offences.

I am grateful to the Government for amending the definition of terrorism along the lines suggested in earlier debates. I support Amendment No. 1 and the others being discussed with it.

Lord Goodhart

My Lords, we would have given more or less unreserved support to Amendment No. 2. I discussed its drafting with the noble and learned Lord, Lord Lloyd of Berwick. We particularly welcome the introduction of the concept of intimidation as a necessary part of the definition of terrorism.

Our welcome for Amendment No. 1 is more qualified. It is unquestionably an improvement on the original definition, so we do not intend to oppose it, but we find aspects of it distinctly worrying. In particular, it includes actions that may influence the Government without intimidating any section of the public. That may be justified in certain cases, but the amendment is currently too wide. We accept that the definition needs to cover actions that are not directed specifically against the public, such as the assassination of leading members of the Government or people in similar positions, but it needs to be tightened up. I t is difficult to justify treating as terrorism an action that involves serious damage to property if it merely influences the Government and is not likely to intimidate the public. That is particularly relevant when we consider that we may be talking about not just the Government of the United Kingdom, but those overseas.

In principle, we support the exception for the use of firearms or explosives, but it leaves a gap, because it does not cover a situation in which a member of the Government is hijacked and then strangled rather than shot. That is perhaps an unlikely situation, but it is possible.

Our view of this is, therefore, that we cannot give unqualified approval to Amendment No. 1. As I said, we do not intend to oppose it because we regard it as an improvement, but we shall look at it carefully. It is more than likely that we shall want to bring back amendments to the redefined definition on Third Reading in order to be able to have a full debate on the issue. Therefore, for today, I simply say that we do not oppose the amendment.

3.30 p.m.

Lord Beaumont of Whitley

My Lords, some of the amendments in this group are in my name. I welcome the progress which the Government have made in producing a better definition of "terrorism".

It is not necessarily perfect. I echo the thoughts of the noble Lord, Lord Goodhart, that it is quite possible that we should look again at new subsection (1A)(b) which relates to serious damage to property, for the reasons that he has explained. My party and I are not happy with new subsection (1A)(c). We do not like the fact that the provisions include endangering the terrorist's own life. I would describe that as the "Swampy"/Emily Davison situation and it does not seem to me to call for this kind of legislation. When Britons are protesting against something and trying to persuade people to change their views and the law, they should be prepared to sacrifice themselves, if necessary, without that becoming a major offence. If they are risking their own lives, they are already risking a great deal. I do not believe that the Government should take that point of view.

I shall listen to what the Minister has to say when he replies to this part of the debate. But it would certainly he my intention to table an amendment to deal with that at Third Reading.

By listening and talking, the Government have achieved a much better situation than we had at the last stage of the Bill. I congratulate them on that. I support them in principle, although I have reservations on the detail.

Lord Hylton

My Lords, I am grateful for the government amendments. I noticed that when moving them the noble Lord, Lord Bach, mentioned recent events. Was he referring to the problems with the computers of the national air traffic control which occurred last Saturday? That may have caused some of your Lordships some inconvenience. It certainly caused me a six-hour delay in taking off on an internal flight within this country. Is the noble Lord able to say anything about the causes of those problems and whether they had any connection, however tenuous, with terrorism?

Baroness Park of Monmouth

My Lords, I am concerned that one of the serious aspects of life in Northern Ireland is the banishing of families. At the moment, I am glad to say that that is peculiar to Northern Ireland. But it has a terrible effect on a whole group of people.

Does the Minister consider that new subsection (1A)(d) of the government amendment covers that point? If not, I should like to talk to Members on my Front Bench and possibly bring forward an amendment at a later stage. If the Bill already covers that issue, obviously I shall not press it further; but I am concerned about it.

Lord Monson

My Lords, I had not intended to intervene on this amendment. The noble Lord, Lord Beaumont of Whitley, referred to new subsection (1A)(c) which deals with endangering a person's life. That leads one to suppose that a hunger strike could be interpreted as terrorism. When he replies will the Minister confirm whether or not that is so?

Baroness Blatch

My Lords, this is not a Bill in which I have taken an interest so far. At this stage, I do not declare a pecuniary interest, but very close to where I live is the site of the Huntingdon Life Sciences Company. The Minister will be aware that there has been an almost permanent gathering of people squatting at the gates of that company. They have been terrorising—and I use my words and not those of anybody else—the staff of that company.

Recently that has been taken a further stage and a new phenomenon has arisen in terms of terrorising people. Nowadays, people visit Companies House and they obtain lists of shareholders in particular companies. If a view is taken that, for one reason or another, there is a philosophical objection to the purposes and objectives of the company and the business with which it is involved, those shareholders are terrorised. That may be done through a written letter or, worse, things may be put through their letter boxes or their cars burned.

There may be direct action taken at the gates of a company. The staff of the company may be terrorised by being shouted at or worse; there may be physical damage to property or people's possessions. Even worse, harm may be done to the staff or shareholders of the company. Is such action encompassed within Amendment No. 1?

Lord Molyneaux of Killead

My Lords, I too support the government amendments. They are a vast improvement on what had gone before. In particular I note that subsection (1)(b) contains the two little words "or threat". I presume that, by implication, that includes the retention of the means of making a threat valid and effective. Therefore, the retention of arms and munitions falls within the scope of that provision.

There are other minor issues which one could raise but I wish to give broad support to the government amendments.

Lord Avebury

My Lords, the Government have recognised that there was a problem with the phrase relating to serious violence against persons and property and they have now split that so that the Bill deals with "serious violence" against persons and "serious damage to property".

But on the last occasion on which we discussed this matter, it was pointed out that the phrase "serious violence" occurs only in Section 60 of the Criminal Justice and Public Order Act 1994. There has been only one case brought under that provision which did not turn on the definition itself. Therefore, the courts will have to start with a blank sheet of paper in interpreting what "serious violence" against persons means; and the same is true, pari passu, of "serious damage" against property. I believe that we are placing an unfair burden on the courts in not spelling out exactly what we mean by either of those phrases.

However, I draw attention to another problem which struck me when I was reading Amendment No. 49. As the Minister pointed out, it makes offences under the Computer Misuse Act 1990 subject to the special provisions of Part VII of the Bill which provides for non-jury trials on account of the fact that the offences are terrorist-related. Those offences are unauthorised access to a computer either by itself or with a view to committing a further offence, and unauthorised modification. Therefore, that would cover, for example, pure hacking or hacking for the purpose of damaging the computer system, the transmission of a virus, or the use of computers for the purposes of the financial rackets, to which the noble Lord, Lord Cope, referred in Northern Ireland.

Can the Minister tell us whether the Bill catches only people who commit those offences within the Province? Computer hacking and computer interference may be committed from anywhere on the globe. Someone may have the intention of using computers for terrorist-related purposes in Northern Ireland but would not be physically located there. Would the provisions of Amendment No. 49 come into play only if the alleged offender was within the territory of Northern Ireland?

The Earl of Onslow

My Lords, I, too, was not going to take part in this. However, I am worried and curious about this amendment, which is in danger of being a catch all amendment. It is rather like that wonderful old phrase in the Army, prejudicial to good order and military discipline". It seems that almost anything, with a certain amount of imagination, can be described as terrorism. I completely understand the difficulty which everybody is in. Terrorism has to be defined. We all recognise it when we see it but, if we are not careful, the definition will be too wide. Perhaps I may leave that view with the Minister. It is a dilemma in which I find myself.

Lord Bach

My Lords, I am extremely grateful to noble Lords, as are the Government, for the assistance we have had in attempting to get right this difficult definition. As has been said, it clearly is not an easy task and there are dangers both ways in attempting to do so.

Some noble Lords gave almost unqualified support to our new definition. We are grateful to the noble Lord, Lord Cope of Berkeley, for what he said both on behalf of himself and of the noble and learned Lord, Lord Lloyd of Berwick, who was good enough to correspond with my noble friend yesterday and say that he was satisfied with the new Clause 1. That is an important consideration for noble Lords, if one bears in mind the expertise and experience of the noble and learned Lord in this field.

The Government are comforted by the fact that noble Lords around the House feel that this is an improvement—perhaps even a big improvement—on the stab we made at it in the original Bill that came to this House.

A number of questions have been asked which I shall do my best to answer. The noble Lord, Lord Monson, asked about hunger strikers or the terrorist risking blowing himself up. That point was also made by the noble Lord, Lord Beaumont. We do not believe that that would be covered. It would not, by reason only that such a person endangered his own life, fall within what we believe is the obvious sense of subsection (1A)(c). That person would also have to put the public at risk.

The noble Lord, Lord Hylton, asked a question about recent events which we were all sorry to hear caused him such inconvenience last weekend. The answer to his question as to whether we believe that was linked with terrorism is no. The recent events are apparently considered to be related to that famous animal, "The love bug", which the House knows about. There was no direct connection because there was not believed to be a terrorist motivation. However, considerable thought has been given to the reality of the difficulties last weekend.

The noble Baroness, Lady Park, asked a question about banishing families. A threat of violence may well be involved, coupled with a political motivation. We believe that banishing is caught by the provisions. I hope that that goes some way to satisfying her concern.

The noble Baroness, Lady Blatch, asked about matters close to home. We are aware of a campaign being conducted by animal rights supporters against Huntingdon Life Sciences Company and the criminal activities of a small minority directed at the employees and shareholders. As the noble Baroness will understand, this is an operational matter for the police. They, together with the courts, have the full support of the Government in dealing with those responsible for criminal acts.

Whether that is covered by this definition depends on the nature of the attack. If serious violence was used, the public was put at fear and the motivation was religious, political or ideological, I can tell the noble Baroness that it could be caught by the provisions set out in Clause 1 of the Bill.

I turn to the noble Lord, Lord Avebury, and his concern about the definition of the word "serious" connected with the word "violence". It seems to us that this is not a real problem. The noble Lord, Lord Avebury, is surrounded by noble Lords who have no doubt summed up to juries on the meaning of grievous bodily harm, a phrase used in the Offences Against the Person Act 1861. If I remember rightly, judges will sum up grievous bodily harm as meaning really serious bodily harm. There seems to be no difficulty with the courts defining grievous bodily harm, although it is almost lost in the mists of antiquity. I do not believe there will be any problem in sorting out serious violence from what is not serious violence. Magistrates and juries do it every day of their lives.

Perhaps I may reflect on the second point raised by the noble Lord, Lord Avebury, and write to him.

We have had a fairly brief debate on this important issue. The Government are grateful for the support they have received. We know that this is not necessarily the end of the story. However, we believe that we have gone a long way towards satisfying the House.

3.45 p.m.

Lord Monson

My Lords, before the Minister sits down perhaps I may raise one point. We are all grateful to the Minister for his lengthy and considered reply. However, would he not agree that a hunger strike is a threat of action designed to influence the Government which endangers a person's life? The Minister has not had much time to consider this point, which was raised by the noble Lord, Lord Beaumont of Whitley, and myself. I wonder whether he would agree to look at it again between now and Third Reading and possibly come back to us at that point.

Lord Bach

My Lords, of course we will.

Baroness Blatch

My Lords, before the Minister sits down, perhaps I may ask for clarification. I thank him for the detailed answer he gave about the staff of Huntingdon Life Sciences Company. As I understand it, the Minister said that where serious violence or the threat of serious violence caused distress to the public, it would be caught by the measures contained in Amendment No. 1. Can the Minister tell us whether, for the purposes of Clause 1, members of staff are members of the public?

Lord Bach

My Lords, I hope I was careful in the phrase I used. "If serious violence was used and the public was put at fear" was the expression I used. That includes members of staff. But it must be remembered that the motivation of those who put people at fear and use serious violence must be either religious, political or ideological.

On Question, amendment agreed to.

[Amendment No. 2 not moved.]

Lord Bach moved Amendments Nos. 3 and 4: Page 1, line 13, leave out ("subsection (1)") and insert ("this section"). Page 1, line 18, at end insert (", and (d) "the government" means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.").

On Question, amendments agreed to.

[Amendment No. 5 not moved.]

Clause 3 [Proscription]:

Lord Glentoran moved Amendment No. 6: Page 2, line 25, at end insert— ("(6) In exercising his powers to proscribe organisations under subsection (3), the Secretary of State must take into account the activities of any organisation engaging in terrorist activities (as defined in this Act) in countries other than the United Kingdom.").

The noble Lord said: My Lords, we have just had an interesting debate. But one point worries me in relation to this Bill, which I strongly support. The Bill has evolved from our experience of dealing with local terrorism during the past 30 years, both through legislation and sophisticated intelligence. But the world of terrorism has expanded and become equally sophisticated. In fact, the danger from terrorism today to this nation is considerably more than it was 30 years ago.

As I understand it, this Bill is an attempt to further assist the authorities in preventing terrorism and protecting the people of this country from terrorist atrocities. I do not want to see two classes of terrorism in the Bill. But I want to ensure that there is adequate cover to deal with, and be ready for, the international terrorist.

I hope that the Minister will say that Amendment No. 6 is already covered in the Bill. But I should like to be reassured that in the proscribing of organisations in Schedule 2 there is a bounden duty on the Secretary of State of the day to take note of terrorist organisations which are known throughout the world, which are active in other parts of the world, and which are occasionally listed by other governments, and to make the necessary decisions in the light of that serious appraisal. I beg to move.

Lord Molyneaux of Killead

My Lords, I support the amendment. If we expect other countries to co-operate fully in the elimination of terrorism worldwide, we in the United Kingdom must transmit to foreign governments and foreign courts that we are clear-headed about the control of terrorism in our own territory and reassure them that we will co-operate with them in their efforts to eliminate it.

Lord Hylton

My Lords, it occurs to me that this amendment may not be entirely necessary. I say that because this country ratified a whole number of international covenants attempting to deal with international terrorism. Also, it would be impossible for the Secretary of State to list every organisation which has been involved in terrorism at some time or other and in some part of the world or another. The situation changes frequently and the list would quickly become out of date. That is my view.

Lord Lester of Herne Hill

My Lords, I understand the object of the amendment. I am not sure that it is necessary because the Secretary of State's powers are already covered.

I want to make a point that was mentioned in a previous debate; that is, that we are in a murky area when we focus upon acts of terrorism (as defined in the Bill) committed outside this country. One need only think of the ANC during the years of apartheid. Some of my best friends may be regarded as having been guilty of terrorism when they were struggling against the dictatorship of apartheid and found it necessary, with ideological or political motives, to engage in acts which fall within this definition.

I pity the Secretary of State who, at some future date, may have to decide whether or not to add a foreign body, perhaps regarded as freedom fighters by some and terrorists by others, to the list. I can see that, even if we do not accept this amendment, there will be that kind of pressure on future Home Secretaries. I say simply that we are getting into murky waters, though that may be inevitable when one has a Terrorism Bill with extra-territorial scope.

Lord Avebury

My Lords, one does not need to go back in the past to the activities of the ANC to recognise where the difficulties mentioned by my noble friend arise. An example that occurs to me is the Sudan People's Liberation Army. We have dealings at an unofficial level with the SPLA. It is part of the process intended to lead to peace in Sudan between the government and the opposition, which has been demanding self-determination in the south. We have a certain amount of sympathy with those in the south who do not wish to be ruled by a fundamentalist and fanatical regime in Khartoum. Therefore we would not like to see such an organisation proscribed.

I should like to know more about the way in which the powers are to be exercised. I can think of other organisations which we would like to have considered by the Secretary of State which are involved in acts of terrorism overseas with which we do not sympathise and where, in this country, the organisation is involved in fund-raising and the soliciting of support of a political kind. An example I gave at an earlier stage was the Liberation Tigers of Tamil Eelam. Everybody knows that they collect money in this country. They have an organisation which explicitly claims to be a branch of the LTTE in London. They go round Tamil businesses asking for protection money. They make threats saying that people must subscribe to their cause. Obviously if we taxed them directly about it, they would say that they were collecting the money for the victims of war. One would have to go behind the collections to see what route the money took to produce the flow of weapons which undoubtedly sustains the conflict in northern Sri Lanka.

So there are circumstances where it could be argued that the powers could be used to proscribe an organisation, and that we would be fulfilling our duty to combat international terrorism in that way. But there are other cases where the power should not be exercised because of the political situation in the country where acts which could fall within the definition of this Bill might be committed. I am therefore not entirely happy about leaving a power of this kind in the hands of a Home Secretary who can say in any specific case whether or not an organisation should be proscribed. He would have been given no guidelines by Parliament; in fact, he would have a perfectly free hand as to how proscription was to be carried out.

Obviously, if it was the present Home Secretary, one would be quite happy as to the way in which the power would be exercised. But he will not be there for ever. This legislation will still be on the statute book when an entirely different government come into power. We do not legislate for the exercise of power by the people who are in office at the moment; we have to imagine that at some future date a far more authoritarian government might come into power who would have no sympathy with liberation movements overseas. That is why, to make the power as broad as it is in this Bill and not to place any restrictions on the exercise of it by the Secretary of State would be rather dangerous.

4 p.m.

Baroness Park of Monmouth

My Lords, I agree with the noble Lord, Lord Avebury, in the two instances he has given. As often happens, it is a question of one man's terrorist being another's freedom fighter. Nevertheless, I hope that some way will be found to recognise that we might have to take such action on new splinter groups of the IRA in the Republic of Ireland, which is another country. It is a problem which needs to be addressed. I agree entirely with the noble Lord on the other instances that he has given.

Lord Selsdon

My Lords, we are worrying about the question of definition. Like the noble Earl, Lord Onslow, I was brought up to believe that the English language is the richest language in the world. If we cannot define something, no one else can.

Historically, there has been a strange change in the world. At one time we had enemies which were countries and military mights. Suddenly, those enemies were replaced with words ending in "ism"—fundamentalism, communism, terrorism. It would be very helpful to me if someone could define the difference between a terrorist and a freedom fighter.

If one analyses the history of the Commonwealth, one finds that a very large proportion of the Commonwealth entered into a period of what may be defined as "terrorism", when the military were sent in to stabilise a situation, the key terrorist or freedom fighter was arrested, locked up for a while, let out, in democratic elections became head of state, and then appeared on the Commonwealth Christmas card.

For those of us who have come across the Baader-Meinhof, the Brigate Rosse, the Shining Path, it is a matter of definition, but we seem always to end up with the word "fundamentalism". We seem to be seeking an enemy, but we need a definition. The definition used to be available through the Foreign Office. It was able to tell us the countries in which acceptable or unacceptable organisations existed. I am afraid that in British political history we have been as duplicitous as everyone else. One day someone is a terrorist, the next day he is an ally. It is the difference in definition of "freedom fighters" and "terrorism" which causes me concern.

If it is not possible to incorporate it in the Bill, perhaps the Minister would be kind enough, if I write to him, to list the world organisations which the Government currently regard as terrorist and those which they currently regard as freedom fighters.

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

My Lords, I am not sure that we would necessarily want to receive such a letter. As your Lordships are well aware and as the noble Lord, Lord Glentoran, has pointed out, this Bill provides for the first time the power to proscribe organisations concerned in terrorism other than that connected with the affairs of Northern Ireland. Throughout the whole process of this Bill your Lordships have quite rightly taken a very detailed interest in this proposal and have sought to examine in detail the Government's intentions in relation to its use.

I do not believe that anyone has been more assiduous in this endeavour than the noble Lord, Lord Glentoran. Not only did he raise this issue in Committee on 16th May (Official Report, cols. 250–253) but he has also asked a series of detailed parliamentary Questions on the subject, which my noble friend Lord Bassam answered on 5th June (Official Report, WA cols. 121–122). My noble friend has again highlighted the issue by proposing this amendment today.

Throughout the passage of the Bill we have said, first, that, we are considering which organisations concerned in international terrorism should be added to Schedule 2 and, secondly, that final decisions as to the content of the first order adding international terrorist organisations to Schedule 2 will not be made until the power to make the order is in force. That is because we need to take full account of the circumstances obtaining at that stage—in particular the security assessment.

I am happy to reassure the noble Lord, Lord Glentoran, that, in exercising his powers to proscribe organisations, the Secretary of State will, of course, take account of all relevant information, including information available to him about organisations engaging in terrorist activities, as defined in this Bill, in countries other than the United Kingdom. I cannot go further than that. The effect of the noble Lord's amendment is that the Secretary of State will be obliged to consider every organisation throughout the world, which nobody would necessarily consider to be sensible. It is important, however, that I should give a reassurance about including information available to him concerning organisations engaging in terrorist activities in countries other than the United Kingdom.

With regard to the point made by the noble Lord, Lord Lester, we recognise that these are, in his description, "murky waters". We fully support people's right to peaceful protest, where there may be an oppressive regime at home. At the same time, however, we cannot allow the United Kingdom to be a safe haven for terrorists. In this respect, balance is very important.

We have provided a number of safeguards, one of which is that the Attorney-General's consent would be required to prosecute any international cases. We fully recognise the sensitive issues which arise in relation to international cases. We agree that everyone has his own views on who should and should not be proscribed. The Secretary of State will have to consider cases very carefully. His order will have to be approved by an affirmative resolution procedure before anyone is proscribed.

In the light of the reassurances that I have given, I trust that the noble Lord will feel able to withdraw his amendment.

Lord Glentoran

My Lords, I thank the Minister for his detailed explanation. I have also heard what noble Lords from the Liberal Democrat Benches have said. In the world in which we are now living, I feel that we can all trust our Home Secretaries of the day, from whatever party, to do what is right so far as terrorism is concerned. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Deproscription: appeal]:

Lord Goodhart moved Amendment No. 7: Page 2, line 39, at end insert— ("( ) Where an order has been made under section 3(3)(a), the organisation, or any person affected by the organisation's proscription, may appeal to the Commission.").

The noble Lord said: My Lords, in moving this amendment, I also speak to Amendments Nos. 7 to 10 and Amendment No. 31, which is consequential.

The purpose of this group of amendments is to provide for the possibility of an appeal against the making of a proscription order. As the Bill now stands, an organisation which believes that it has been wrongly proscribed has to go through a wholly artificial process of applying for a deproscription order. If that order is refused, it can go through the appeal process to the proscribed organisation's appeal committee and, on a question of law, can to go a higher court, and indeed ultimately to the House of Lords.

As the Bill now stands, if the appeal succeeds and as a result the organisation is deproscribed, arty conviction for membership of that organisation and any forfeiture order made before the date on which the Secretary of State refused to deproscribe stands. So indeed does a conviction or order made where the urgency procedure under Clause 122(5) is used but the order lapses because it is not approved by both Houses of Parliament within 40 days.

This creates a wholly irrational and improper legal situation. It means that even if, on the appeal against the Secretary of State's deproscription order, the appeal committee decides that the organisation ought never to have been proscribed in the first place, a conviction or forfeiture order made as a result of the proscription order would still remain valid.

I introduced an amendment on the same subject at Committee stage which would have deferred the coming into force of the proscription order. I accept that that is not the best way of dealing with it. There may well be cases in which a proscription order should come into effect immediately. If that is not done, there is every likelihood of property disappearing before anyone can lay their hands on it, and there may be very considerable delays if the organisation fully exploits the possibility of delaying the procedure for appeals.

The present amendment does not suspend the operation of the proscription order. However, it does provide for an appeal. As a consequence, if the appeal is allowed, or if the order falls because the urgency procedure has been used and the order is not approved within 40 days, the conviction or forfeiture order made in reliance on that proscription order is automatically quashed and ceases to have effect.

It is surely absurd that a conviction or forfeiture order would be allowed to stand even though the proscription order has been made unreasonably or on the wrong legal basis. Further, the absence of any appeal provision for proscription orders is plainly in breach of natural justice. An organisation is being criminalised without being allowed to be heard in its own defence. I suggest that the fact that this artificial procedure of applying for a deproscription order is possible is no defence to the original breach of the right to natural justice. If an order is allowed to come into force before there is a decision on appeal, I see no reason for the Government to object to conferring a right of appeal against the original proscription order and many reasons why they should allow it. I beg to move.

Lord Lester of Herne Hill

My Lords, my name has been attached to these amendments and, therefore, I should like to add a few words to what my noble friend has said on the question of legislative method. When the Human Rights Act comes into force on 2nd October of this year, all existing and future legislation, including this Bill, must, as far as is possible, be read and given effect to in accordance with the rights contained in the European Convention on Human Rights.

I should declare a professional interest here. As I am still in practice at the Bar, I suppose that I shall earn money arguing cases under the Human Rights Act. However, if it is possible to persuade the Government to make it fit on the face of the Bill, I should be happy not to earn my living by making this Act fit with convention rights. It seems to me to be in the interests of legal certainty and proportionality, if not in the interests of the legal profession, for us to get the Bill right at this stage.

My noble friend Lord Goodhart referred to natural justice, which is embodied in Article 6 of the European Convention on Human Rights. Thus there is European natural justice, as well as good old English natural justice. I believe it to be desirable to introduce a right of appeal for all the reasons given by my noble friend but, additionally, so as to avoid unnecessary conflict with convention rights. The last thing I should like to see is a court having to grant a declaration of incompatibility under Section 4 of the Human Rights Act because it was found impossible to read and give effect to Clause 5 in accordance with convention rights. I very much hope that those considerations will be taken into account, as well as those outlined by my noble friend Lord Goodhart.

Lord Cope of Berkeley

My Lords, it is most generous but characteristic of the noble Lord, Lord Lester, to give up the opportunity of earning legal fees by pointing out that such a problem might arise and might ultimately come before the courts. I have some sympathy with the case put forward by the noble Lord and his noble friend. If these appeals are likely to arise in any event through an attempt to be deproscribed—presumably that can start immediately after the organisation concerned has been proscribed—it might be wise to provide for an appeal procedure in the first place.

However, my caution in this respect arises from the fact that I do not wish to see a situation where some causes which in many cases are deeply offensive to people in this country give rise to a proscription being introduced in respect of a terrorist organisation. That, in turn, could be used as an excuse for an appeal hearing in which the terrorists or their representatives from overseas argue their case in this country in an attempt to justify their actions and thereby gain support. The Secretary of State and the Government could be placed in an awkward situation if we moved forward in the way suggested. But perhaps it is inevitable, given the appeal against a deproscription refusal and the background of the human rights legislation to which the noble Lord drew our attention. It is a dilemma.

4.15 p.m.

Lord Falconer of Thoroton

My Lords, since our discussions on this part of the Bill in Committee, the Government have reflected further on the whole area of proscription. We have concluded that the Bill is right as it stands. I am happy to explain why this is the case, but I should say at the outset of my remarks that we remain unable to accept these amendments. There are two key proposals in these amendments: first, that the Bill should allow for a straight appeal against proscription, as opposed to an appeal against a refusal to deproscribe; and, secondly, that a safeguard should be built in against the abuse of the urgency procedure.

Perhaps I may begin with the issue of appeal against proscription. As my noble friend Lord Bassam said in Committee, the system in the Bill has the advantage that, on receiving an application to deproscribe, the Secretary of State may choose to do so. That would avoid the need for a costly and perhaps lengthy appeal hearing. In explaining how we have arrived at the application, refusal, appeal process, I must emphasise that we are not starting from a blank sheet of paper. In Schedule 2 we have a list of organisations that are already proscribed and in some cases have been proscribed for many years.

However, let us suppose that one of those organisations—perhaps rightly proscribed in the mid-1970s—were to turn away from terrorism at some point in the future. It could happen. In such a case, as my noble friend Lord Bassam said in Committee, an appeal against proscription would not produce the right result because the decision to proscribe was right at the time that it was made. The advantage of the system in the Bill is that the application requires the Secretary of State to make a fresh decision based on the up-to-date situation. It is his assessment at that point in time that is to be reviewed by the commission if the Secretary of State decides to refuse the application.

In recognition of that line of argument, the noble Lord, Lord Goodhart, said in Committee that there might be a time limit of between 14 and 28 days from the initial proscription during which the relevant organisation could appeal. That would not be helpful to any organisation which was concerned in terrorism when it was proscribed but which, more than a month later, changed its spots. In particular, it would not work at all for any of the organisations already listed in Schedule 2. Therefore, for those two categories we would have to retain the system of application, refusal and appeal against refusal for them. That would mean ending up with two parallel systems. As has been observed, the drafting of one system is already complex. Therefore, the drafting of two systems would greatly multiply those complexities. More importantly, as the additional system would work only for newly-proscribed groups, we would not be treating in the same way those organisations already included in Schedule 2 and those to be added to it at a later date. We see it as important that all organisations should be treated in the same way under the Bill.

I have mentioned two practical reasons why we do not favour an appeal against proscription. We need to be able to deal with organisations that change their spots, so we need the application/refusal regime; and we need to treat all organisations in the same way, whether they are already listed in the schedule or are newly proscribed under the Bill. All groups should have the same avenues of appeal open to them. However, we reject the noble Lord's proposals, above all, because we believe them to be unnecessary.

A power to proscribe organisations has been on the statute book in its present form for over 25 years. The Bill adds the important safeguard of the application, refusal, appeal mechanism. Any organisation in Schedule 2 can apply for deproscription at any time and can, under the system in the Bill, ultimately be deproscribed. That in itself is an effective remedy as far as the organisation is concerned.

Of course there are further spin-offs of a proscribed organisations appeal commission (POAC) decision in an organisation's favour. Clauses 7, 8 and 29, together with paragraphs 10, 24 and 40 of Schedule 4, make provision for the consequences of a finding that the Secretary of State's refusal to deproscribe was unlawful. Such a finding means that on the date of that refusal the organisation should not have remained proscribed. It does not say anything about the lawfulness or otherwise of the original proscription of the organisation, or about the standing of the organisation before the refusal to deproscribe. Clause 7 therefore provides only that convictions relating to activity on or after the date of the refusal can be overturned.

But the purpose of Clause 7 is not to signal that if you, as an individual, believe that your organisation should not be proscribed, you may carry on participating in the organisation's activities, in the hope of eventually getting the benefit of Clause 7. On the contrary, if an order proscribing the organisation has been made, the organisation is proscribed. You should dissociate yourself from the organisation, irrespective of the progress of any application or appeal.

For these reasons, we see no need to provide for an appeal against proscription. The system of application, refusal and appeal treats all terrorist organisations the same: those that are already proscribed and any that may be proscribed in future. It is there to give organisations an effective remedy. It is not there to excuse those who choose to break the law.

Perhaps I may turn now to the urgency procedure. I must first emphasise that this procedure is a necessary feature of the regime. Most of the entries which have been added to the list in recent times have been added using it. When a bomb goes off and is claimed by an organisation, an immediate proscription using the urgency procedure order immediately gives the police a valuable tool in pursuing the perpetrators and bringing them to justice. It is also an important way for the Secretary of State to express, in a very tangible way, society's abhorrence for that organisation's methods of pursuing its objectives (although the objectives themselves may be perfectly legitimate, of course).

The noble Lord, Lord Avebury, suggested in Committee that the urgency procedure could lead to injustice because it would be possible to proscribe an organisation at five minutes' notice without the knowledge of the members of that organisation. This is a misunderstanding of the position.

As your Lordships know, it is a general legal principle that, although ignorance of the law is not a defence, the law should be available to the citizen. So it would be quite wrong to make an order at 10 a.m. coming into force at 10.5 a.m. The right thing to do would be to provide for the order to come into force the next day. This will give time for the Government to publicise the proscription (which after all, is part of the reason for having the power) and to allow people to dissociate themselves from the organisation or to cease to participate in its activities.

This has been the procedure in the past and I can assure your Lordships that this Government will continue to follow this approach in future. There is no question of using the power to "round up" people on the basis that they did not know that the organisation was proscribed. To return to a suggestion that was made in Committee, I do not therefore see any need to add the word "knowingly" to the membership offence.

Subsection (5A) in Amendment No. 10 proposes that convictions should be annulled if an organisation is proscribed by the urgency procedure but Parliament withholds its consent—a point which was raised by the noble Lord, Lord Avebury, in Committee. We have considered this matter carefully and we do not agree that such provision should be made.

Once the Secretary of State has proscribed an organisation, membership of the organisation, fundraising for the organisation, and so on become criminal offences. Whatever happens when Parliament debates the order, for those 40 days that is the law, and we expect people to obey it. Every individual has choices to make. In the circumstances we are discussing, a member of the organisation has to decide whether to break the law or observe it. We do not think that it is too much to expect of an individual that he observe the law during those 40 parliamentary sitting days.

It is true that if the organisation is removed from Schedule 2 by virtue of Clause 123(5)(b), a convicted person will not get the benefit of Clause 7. So a person cannot go on participating in the organisation's activities in the hope of appealing successfully and ultimately getting the benefit of Clause 7. But it is right that this should be the case.

When the urgency procedure is used, it is right that Parliament should have the option of withholding its consent so that the order falls. From the point of view of the organisation that must be an acceptable outcome.

But Parliament can and must be able to withhold its consent for any number of reasons. It follows that a failure of Parliament to endorse a proscription order is not the equivalent of a POAC ruling in the organisation's favour. In particular, it does not necessarily mean that at any time the organisation should not have been proscribed. From the point of view of the individual convicted of a proscription offence, therefore, the analogy with the POAC process breaks down.

In the POAC scenario there is a finding that the refusal to deproscribe was flawed. In the urgency scenario there is no comparable finding. In both cases we consider that the individual has chosen to break the law, but we recognise that where POAC has made a favourable determination, convictions should not necessarily stand.

It has been suggested that this power could be abused. It is a very heavy power. We have acknowledged this repeatedly and we make no apology for it. But for the reasons I have given, we believe that the urgency procedure, in the form proposed in the Bill, is necessary. We believe that the safeguards we have provided are correct and sufficient; and so, through the Bill, we are asking Parliament to trust the Secretary of State with this powerful tool in the fight against terrorism.

The Bill before your Lordships this afternoon is an important Bill and proscription is an important power. The amendments which have been tabled have probed the workings of this power in detail, and have caused us to think long and hard about whether we have the detail right. The Government believe that the drafting of these powers and procedures is right. I apologise for the length of my reply but the issues raised by the noble Lord, Lord Goodhart, are important. In the light of the explanations I have given, I sincerely hope that those noble Lords who have tabled amendments will agree to withdraw them.

Lord Goodhart

My Lords, I found the noble and learned Lord's reply extremely depressing and unsatisfactory. I do not think that any of his arguments supported the position which he has taken. First, he said that the fact at present that you have to apply for a deproscription order means that the Secretary of State may change his mind, decide to make a deproscription order, and that that makes the procedure cheaper and simpler. Where an appeal is allowed, if the Secretary of State comes to the conclusion that he ought not to have made the order in the first place—perhaps as a result of new evidence which is shown to him—it is perfectly possible for him to indicate that he would not oppose the appeal. If he does so, any additional costs of the appeal would be absolutely minimal. Therefore, I do not see that there is any substance in saying that this procedure is cheaper.

Secondly, it is said that the appeal against a proscription order would not be appropriate because it would create two parallel systems and a multiplication of complexities. This is simply not true. The legislative complexity will be minimal, as seen from the fact that the amendments which I have drafted, and which I believe would be adequate for the purpose, take up no more than a few lines of text. So far as procedure is concerned, there is no reason why any different procedure should be followed before the POAC in the case of an appeal against the original proscription order from the procedure which would be followed in the case of an appeal against a refusal to deproscribe.

Thirdly, the noble and learned Lord said that it was appropriate for all organisations to be treated in the same way. That, again, seems to me to be a wholly irrelevant issue. The fact is that we have a number of organisations which have been proscribed, which could have appealed against a refusal to deproscribe, and have not done so. It seems to me that that is no argument whatsoever for depriving any future organisations which may be proscribed of the right to appeal against a proscription order.

Finally, and particularly, the noble and learned Lord said that this amendment was not necessary because the right to apply for deproscription was a sufficient remedy.

First, there is the point raised by my noble friend Lord Lester in regard to the Human Rights Act. That Act is not yet in force but will no doubt come into operation before this Bill becomes law.

There is also the question that proscription orders are now likely to be made against organisations whose main focus of activities is overseas. Those activities perhaps will be less familiar to the authorities in this country than the activities of those organisations which take part in terrorism in Northern Ireland, and therefore a more extensive look at the evidence may well be extremely important.

It seems to me there is a real difference of substance between a "change of spots" case and a case where an organisation should never have been proscribed in the first place. The present procedure will require an organisation, by applying for a deproscription order, in effect to admit that it was a terrorist organisation in order to be released from proscription.

I am very tempted to seek to divide the House on this important issue. The Government have been wholly unable to produce any convincing arguments to support the refusal of an appeal, with all that that means in terms of natural justice. However, this is something which can and probably will be dealt with under the Human Rights Act—if a case arises. I am therefore prepared to leave the Government to face the consequences of the Human Rights Act. With great reluctance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8 to 10 not moved.]

4.30 p.m.

Clause 12 [Support]:

The Deputy Speaker (Lord Murton of Lindisfarne)

My Lords, within this group, if government Amendment No. 12 is agreed to I cannot call Amendment No. 13 owing to pre-emption.

Lord Goodhart moved Amendment No. 11: Page 7, line 9, leave out paragraph (c).

The noble Lord said: My Lords, at Committee stage we objected to paragraph (c) of Clause 12(2) and paragraph (b) of subsection (3). Of these the more important of the two was subsection (3)(b), which provided that a person committed an offence if he addressed a meeting and knew that the meeting was, to be addressed by a person who belongs or professes to belong to a proscribed organisation".

That would have made it an offence for a person to address such a meeting, even if his or her reason for addressing the meeting was to express their fundamental opposition to the activities of the proscribed organisation. For that reason I welcome, without reservation, government Amendment No. 12, which removes subsection (3)(b) and renders unnecessary my Amendment No. 13.

However, that still leaves subsection (2)(c), and we have some concerns about that. I have no objection to providing that it is an offence for a person to arrange a meeting to support a proscribed organisation or to further the activities of a proscribed organisation. However, the question of making it illegal to arrange a meeting which is to be addressed by a person who belongs or professes to belong to a proscribed organisation is something which one needs to look at very carefully.

In subsection (4) a "meeting" is defined as, a meeting of three or more persons, whether or not the public are admitted".

So potentially one is not looking at a public meeting but simply a meeting of a group which has been called for a specific purpose and for some discussion.

But what would happen if, let us say, an organisation in this country were to arrange a meeting here between the Tamil Tigers organisation—assuming that it had been proscribed—and the Government of Sri Lanka, with a view to trying to settle the violence, the civil war effectively, in Sri Lanka? It would be most inappropriate if the arrangement of any such meeting were to be treated as a criminal offence. The Government may wish to say that a round-table conference of this kind does not involve anyone addressing a meeting—that it is a matter of discussion—but I have difficulty seeing that as a certain defence to a prosecution under the subsection.

It seems to me that Clause 12(2)(c) is still potentially objectionable because it covers meetings arranged for wholly praiseworthy purposes. I shall be interested to hear what the Minister has to say. I beg to move.

Lord Monson

My Lords, I support government Amendment No. 12 for the reasons already given. It is somewhat better drafted than the Liberal Democrat Amendment No. 13, and no more needs to be said about that.

I also strongly support the noble Lord, Lord Goodhart, in regard to Amendment No. 11. It is funny to think that if this Bill had been enacted in its present form 30 years ago, the long arm of the law might have descended on the shoulders of certain Cabinet Ministers—both Labour and Conservative—during all their cosy, secret chats with the Provisional IRA in Downing Street and elsewhere.

On a more general point, is it not a good thing that terrorists, or apologists for terrorism, should be encouraged to try and justify themselves in front of a sceptical or hostile audience? If the audience in question were not sceptical or hostile but supportive and enthusiastic, then the organisers of the meeting would be caught by subsection (2)(a) and, in certain circumstances, by subsection (2)(b) as well. So there is no danger on that score.

For that reason, and the reasons advanced by the noble Lord, Lord Goodhart, I hope that the House will support the amendment.

Lord Lester of Herne Hill

My Lords, the amendment stands in my name as well as that of my noble friend Lord Goodhart. I simply add two points.

The marginal note to Clause 12 is "Support". The whole thrust of these offences—which are punishable on conviction on indictment by a term of imprisonment not exceeding 10 years—is that in some way they are to do with supporting terrorism. We welcome what has been said and the fact that the Government have decided to delete Clause 12(3)(b)— no doubt because they appreciate, on consideration, that someone may be guilty of an offence under that provision without in any way supporting the aims of the proscribed organisation—but exactly the same applies to Clause 12(2)(c). In arranging, managing or assisting in arranging or managing a small meeting, the fact that one knows it is, to be addressed by a person who belongs or professes to belong to a proscribed organisation", does not automatically mean that one has any support at all for the aims of that organisation. As the noble Lord, Lord Monson, indicated, one might be utterly opposed to everything that organisation stands for. Therefore, surely logic and principle suggest that symmetry and consistency should be demonstrated in the Government's approach. Given the decision to delete Clause 12(3)(b), one must ask what on earth is the reason for keeping in place Clause 12(3)(c).

Finally—I promise that I shall not repeat this too often—it seems to me that Clause 12(2)(c), as applied, could create serious difficulties under the Human Rights Act as regards convention rights governing speech and association. I very much hope that the Government will be able to accept the amendment.

Lord Desai

My Lords, in the debate on Second Reading I expressed my worries about certain aspects of the Bill. I have many academic colleagues who study terrorism as a subject. Much of the knowledge we have acquired about Hezbollah, the IRA, the Tamil Tigers or any other such group is the result of study undertaken by academics, who also make it their business either to meet with representatives of those organisations or, sometimes, to invite them to present a seminar at a university. I can easily imagine my colleagues in the Department of International Relations at the London School of Economics arranging such events.

First, it would be very wrong to assume that my colleagues, by inviting such people to address seminars at the LSE, are in some way sympathising with or supporting the activities of a terrorist organisation. Secondly, unless we allow academics to continue with their work on these rather obscure topics, the Government themselves will have access to far less information about the extent of terrorism. Their own information-gathering systems are insufficient for the task.

A great many academics pursue these topics out of a desire for academic knowledge. It is important that such activities, based on a sincere desire to further knowledge and understanding, should not be stopped. I should not wish to see my colleagues go to gaol.

Lord Avebury

My Lords, it is not only academics who might fall foul of the provisions of the Bill. Members of your Lordships' House or those of another place might be similarly affected if they undertook meetings for the same purposes.

When considering certain organisations which function only overseas, it must be remembered that those governments themselves engage in dialogue. For example, officials at the Foreign Office held a meeting to discuss Plan Colombia, a £1,600 million dollar programme being launched by the United States in an effort to assist the Colombian Government in combating terrorism and the trafficking of narcotics. One element of that effort is the need to deal with the FARC. That is an armed organisation which opposes the government and controls a large section of Colombian territory. Noble Lords may have seen the details of this in the review section of yesterday's Guardian. A two-page article reported on the so-called Farclandia which is controlled by these terrorists—for that is what they are according to the definition in the Bill. However, they are terrorists with whom the Colombian Government must deal. Over the past few years, President Pastrana has been trying hard to agree a formula of some kind whereby those terrorists can be drawn back into the political process.

Would it not be nonsensical, therefore, to declare that interested parties in this country would be unable to engage in such a process? According to the provisions of the Bill, it would be impossible to invite representatives of the FARC to come here and hold talks with a gathering of MPs or noble Lords to investigate how that peace process might operate and whether the United Kingdom would be able to play a part in it.

The subsection which my noble friend seeks to delete will inhibit the United Kingdom from playing any role in the solution of crises and internal armed conflicts in many other parts of the world.

Viscount Brookeborough

My Lords, I have been unable to take part in the proceedings on the Bill until now because of my committee work and because I have had to be out of the country.

I should like to express my welcome for government Amendment No. 12, as well as to support Amendment No. 11. In today's world, it is of key importance that we address the challenges of modern conflict resolution. Conflict resolution is all about talking, all about discussion and all about persuasion. Quite clearly, if we do not permit meetings to be held which may be set up in an effort to persuade those allied closely to proscribed organisations away from them, then we shall be heading up the wrong track, leading to even longer conflicts than is presently the case.

4.45 p.m.

Lord Bach

My Lords, the noble Lord, Lord Goodhart, was the first to acknowledge that the Government have moved in this area. However, we cannot move quite as far as the noble Lord would like to take us. Having said that, we are of course impressed by the arguments that have been put from all sides of the House.

Perhaps I may deal first with Amendment No. 13, which the noble Lord has intimated that he will not later move because he has accepted government Amendment No. 12. Both amendments seek to remove the offence of addressing a meeting which a person knows is to be addressed by, a person who belongs or professes to belong to a proscribed organisation". We believe that this offence would help to deprive terrorist organisations of the oxygen of publicity, but we also recognise the concerns that have been raised both in this House and in another place, as well as elsewhere. We take those concerns seriously and have decided, after careful thought, to remove the offence from the Bill.

As regards the proposal contained in Amendment No. 11 tabled by the noble Lord, we do not see such a strong case—I am choosing my words carefully—for removing Clause 12(2)(b). We are of the view that the offence of arranging or managing a meeting, knowing that it is to be addressed by a person who belongs to or professes to belong to a proscribed organisation, is qualitatively different from the offence of "addressing" which we have now decided to drop.

The activity of "addressing" a meeting raises issues of freedom of speech in a rather more direct way than that of "arranging" a meeting. At the same time, "arranging" or "managing" requires a positive intention to help the speaker from the proscribed organisation in a way that "addressing" perhaps may not.

That would be the case even if the meeting is to be held predominantly for another purpose altogether. Even if it was known that a member of a proscribed organisation intended to speak on a subject unconnected with the organisation itself, we think that there is a possibility that such a meeting could be hijacked by the member of the proscribed organisation.

I hardly need to remind noble Lords that the point of proscription is to deprive terrorist organisations of any spurious legitimacy which they may claim. We believe that such organisations should not be given a platform. For that reason, people should not arrange or manage a meeting for them to address. We think that the offence should remain in place.

However, we have listened to what the noble Lord, Lord Goodhart, pointed out by way of his example. It is a difficult issue and the Government acknowledge that. We would say that Crown immunity would of course apply and that, perhaps more significantly in this field—it arises elsewhere in the Bill—consent must be given for a prosecution before such a prosecution can be put in train. That decision would lie either with the Director of Public Prosecutions or, as we shall debate later, with the Attorney-General. That is something of a safeguard in response to the example referred to by the noble Lord.

Lord Lester of Herne Hill

My Lords, that point was made by the Home Secretary in another place. He recognised the threat to free speech posed by this provision, but stated that the safeguard lay in the discretion to be given to the prosecuting authorities, who would exercise that discretion sensibly. Perhaps I may ask the Minister a question. Since we are not dealing here with the oxygen of publicity in the sense of a public meeting, but rather a much smaller form of meeting, surely we run the danger of introducing a feeling of great uncertainty if it were simply left to a future discretionary decision on a very serious criminal offence?

Would it not be more sensible to achieve legal certainty and proportionality now by deleting this provision, thus ensuring that freedom of speech could not be chilled in a way that would clearly breach Article 10 of the European Convention of Human Rights? We cannot leave this to prosecutorial discretion because of that chilling effect. Can the Minister take that into account and think again on the matter?

Lord Bach

My Lords, I would say to the noble Lord that the oxygen of publicity—the phrase that is used so often—can apply as much to a small private meeting which "gets out", as it were, into the public world as to an orthodox public meeting.

However, we concede that there is a problem here. We do not want to go as far as saying that to call a public meeting and invite a member of a proscribed organisation should be lawful, but we should like to consider between now and Third Reading whether there is a way round the dilemma which has been set for us by the noble Lord, Lord Goodhart. He talked about, for example, a meeting organised perhaps by HMG here between a terrorist group and a national government of another country, with the sole purpose of trying to bring them together. I think that was the example he gave. I hope he will understand that I cannot promise anything, but we should like to consider the point he has made.

Lord Cope of Berkeley

My Lords, has it occurred to the noble Lord the Minister, as it did to me, that perhaps noble Lords on the Liberal Democrat Benches should have proposed an amendment which is rather different from the one they have moved, which would delete the words, a meeting of three or more persons and insert "public meeting", or some phrase to that effect. That seemed to be what lay behind much or their concern.

Viscount Brookeborough

My Lords, could I ask the Minister to explain why we have no prohibition or talking to the press? Years ago we had such a prohibition on the IRA or other terrorists talking to the press. That was a public platform, and really in the case of this amendment it is very much less of a public platform than appearing on television. Therefore I would still like to see this amendment accepted, whereby such people should be allowed to talk to controlled audiences in the right circumstances.

Lord Bach

My Lords, obviously, anything that the noble Viscount says on these matters is taken very seriously by the Government, but I have to say that what the noble Lord, Lord Cope, has suggested as a possible amendment is again something we should like to look at and see whether it could satisfy all parties here, together with the legitimate question raised by the noble Lord, Lord Goodhart, I hope that in the meantime he will feel able to withdraw his amendment.

Lord Goodhart

My Lords, I am of course grateful for what the noble Lord, Lord Bach, has said about the possible reconsideration of Clause 12(2)(c). We take the view that it is acceptable to come back with a more limited amendment. It could be argued that simply removing Clause 12(2)(c) would be too broad. Our intention will be that, to be on the safe side, we ourselves will draft a rather narrower amendment and bring it back for consideration on Third Reading, in case the Government think better of bringing back an amendment of their own. Taking that into account, in the meantime I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendment No. 12: Page 7, line 13, leave out from ("activities") to end of line 15.

On Question, amendment agreed to.

[Amendment No. 13 not moved.]

Clause 19 [Disclosure of information: duty]:

Lord Goodhart moved Amendment No. 14: Page 9. line 12. at end insert ("other than journalism").

The noble Lord said: My Lords, this is a very simple and brief amendment but it raises a very important issue. Clauses 15 to 18 create a number of offences. Basically, those offences are concerned with fund-raising and money laundering for terrorist purposes. Clause 19 requires that anyone who suspects someone else of committing an offence under Clauses 15 to 18 should report their suspicions to the police if those suspicions are based on information which has come to them in the course of a trade, profession, business or employment. Failure to report those suspicions to the police is a criminal offence, punishable by imprisonment of up to five years.

It is obvious that this clause is mainly directed to financial businesses or professions, such as banks and accountants, which are likely to be able to see from the audit of their books or accounts that money has been coming in in circumstances which make it likely that it is for terrorist purposes, or else the money is being laundered. We have no objection to the clause in so far as it affects banks, accountants and so on but, as drafted, this clause extends to journalists as well, and we very strongly object to that. That objection, I believe, is shared very widely by the media. Certainly I have received letters from the Society of Editors and a joint letter on behalf of the BBC, ITN, ITV and Channel 4, objecting to the restrictions on journalism.

I believe there are two reasons why extending Clause 19 to journalism is wrong. First, it inhibits freedom of speech or, as the International Covenant on Civil and Political Rights put it,

the right to seek and impart information".

The importance of journalism is indeed specifically recognised in the Human Rights Act.

Secondly, we believe that the extension of Clause 19 to journalism will be counterproductive. Investigative journalism can be useful. Press investigation into terrorist fund-raising can be helpful to the Government, but plainly it will be inhibited by this clause. What will happen if the clause is enacted as it stands? No journalists will be prepared to investigate terrorist fund-raising on the basis that they will have to tell the police how they got their story, who it came from and what was said by whom about whom. Journalists may either refuse to pass that information on to the police and risk prosecution under Clause 19 or, more likely perhaps, they will refuse to investigate and report on terrorist fund-raising. Either way, the police will get no useful information.

It is true that Clause 19 allows a "reasonable excuse" defence but the history of decisions in the courts of this country show that protection of sources is not likely to be regarded as a reasonable excuse. I also recognise that Clause 19 is based upon a section of the Prevention of Terrorism Act, which does not exclude journalists. However, we are now replacing that Act with permanent legislation and that gives us a chance to think again. There is no presumption that Clause 19 should be identical with a previous section of an Act.

I believe that the application of Clause 19 to journalists inhibits freedom of speech. I believe that the application of this clause to journalists will confer no benefit on the police or on the Government. They will get no information which they would not otherwise have received. I believe that the application of Clause 19 to journalists does not advance the main purpose of the clause, which is directed to obtaining financial information from banks, accountants and other similar businesses and professions. It is not necessary for the protection of a democratic society. I believe that there is an overwhelming case for excluding journalists from the operation of Clause 19. I beg to move.

Lord Lester of Herne Hill

My Lords, perhaps I may add a couple of words in support. This is, as my noble friend has said, an extremely important matter. The noble and learned Lord, Lord Falconer, may remember that during the passage of the Human Rights Bill the press made an enormous fuss about the potential threat, as they saw it, in the Human Rights Bill to freedom of speech and freedom of the press. The noble and learned Lord, Lord Falconer, and his colleagues very wisely decided collectively on including a media clause in the Human Rights Act that would give enhanced protection to freedom of speech.

At one stage in my career I acted in a case which challenged the broadcasting ban on Sinn Fein, where we had the conflicting interests of national security on the one hand and freedom of speech on the other. The Law Lords were unable to give direct effect to the free speech guarantee in Article 10 of the convention because it had not been incorporated into our domestic law.

The Government have now incorporated the convention directly into our law and, to quote my old colonel when I was in the Army, I would bet the Bank of England against a blood orange that if there were a challenge in an actual case by journalists under this clause the court would have to re-read this provision compatibly with Article 10 of the convention in the particular case. Again, it means more money for my profession, and it is quite pointless. An exception of this kind achieves legal certainty, proportionality and the freedom of the press without causing any serious harm to any facet of the public interest. Therefore, we very much hope that the Government will accept this modest but crucial amendment.

5 p.m.

Lord Desai

My Lords, I support the amendment. It is extremely important. As I have often said, I have colleagues who do similar things for the sake of knowledge. That knowledge is useful for society, and even for preventing terrorism. But if, in the course of acquiring it, journalists are to be prosecuted, that will be a great blow.

Lord Falconer of Thoroton

My Lords, as was explained in Committee, we do not support a specific exemption for journalists from the reporting requirement in Clause 19. The clause replicates an existing provision which in effect makes it an offence not to give information about, for example, fundraising for proscribed organisations.

As was said in Committee, we fully accept the integrity and professionalism of the journalistic profession as a whole and of individual journalists. But with that integrity and professionalism must also go a degree of responsibility to society. It is a matter, as ever, of striking the right balance.

We believe it is important to retain the old Section 18A of the Prevention of Terrorism Act, and this is the provision now replicated in Clause 19 of the Bill. We regard this as an essential provision of permanent counter-terrorist legislation.

Of course, the Government recognise that the journalistic profession takes its responsibilities extremely seriously. But your Lordships will understand, I am sure, that to provide a specific exemption for journalists would leave a potential loophole in this essential provision. It would also carry a risk of making it easier to launder terrorist finance through press and media companies, a result which I am sure noble Lords would not intend.

I do not accept the accusation made in Committee that our approach shows that we do not understand how journalism works. This is not about how journalism works. It is about how terrorism works.

As has been referred to by the noble Lord, Lord Goodhart, there is the "reasonable excuse" defence in Clause 19(3). That is an important safeguard in relation to this provision. How it will work in relation to journalism is a matter to be decided in each individual case.

Perhaps I may go further in offering reassurances to the journalistic profession as to our intention in the Bill as a whole. We have had various representations from various parts of the media expressing concern that a number of provisions in the Bill will inhibit the legitimate reporting of the media on matters to do with terrorism. These concerns have been expressed not only in the area of reporting requirements, which we have just discussed, but also in relation to the "collection of information" offence in Clause 58 and to the investigatory powers in Schedule 5.

We have been asked on a number of occasions whether anything in the present wording of the Bill is intended to alter the balance between, on the one hand, the vital responsibility of a government to protect their citizens from terrorism and, on the other, the freedom of expression of the media in the reporting on, and scrutiny of, these groups.

The answer is that all the provisions in the Bill which are of particular concern to journalists are directly modelled on provisions in existing legislation. Indeed, Section 18 of the Prevention of Terrorism Act, which is also of concern, is repealed by the Bill. The provisions which are replicated by the Bill will need to be read with the new definition of terrorism in Clause 1, which, unlike that in the existing legislation, extends to all forms of terrorism.

However, I should like to emphasise that, other than ensuring that an equivalent provision is in place to deal with all forms of terrorism, it is certainly not the intention of the Government that anything in this Bill should change the current balance between the freedom of expression that the British media enjoy and the responsibility to assist in combating terrorism. With those assurances, I very much hope that the noble Lord will feel able to withdraw his amendment.

Lord Lester of Herne Hill

My Lords, before the Minister sits down, perhaps I may ask him two questions. Am I right in recollecting that the noble and learned Lord, Lord Lloyd of Berwick, specifically recommended in his report against retaining this offence in relation to journalism? I do not have the report in front of me but that is my recollection.

Secondly, the Minister referred to the defence of "reasonable excuse". How does that fit with Article 10 of the European human rights convention as interpreted by the European Court of Human Rights in the Goodwin case where the court emphasised that the confidentiality of sources of journalists was fundamental to the freedom of the press? Is it the Government's view that the effect of Clause 19(3) is intended to be that, where the press has confidential sources, that confidence must be upheld and respected by the courts and therefore must constitute a reasonable excuse. If that is not the position, how are we complying with the Goodwin judgment in framing an offence of this character which puts the burden of proof not upon the state but upon the newspaper to prove a reasonable excuse?

This matter is of vital importance to the press because of the chilling effect that it will otherwise have on freedom of speech. It will certainly very much affect my view to know the answers to these questions: first in relation to the noble and learned Lord, Lord Lloyd of Berwick, and secondly, what brief the Minister has in relation to compatibility with the convention rights, especially in regard to the Goodwin case and confidentiality of sources. I am deliberately speaking slowly so that these points may be fully considered.

Lord Falconer of Thoroton

My Lords, perhaps I may deal first with the point relating to the report of the inquiry into legislation against terrorism chaired by the noble and learned Lord, Lord Lloyd. I do not think that I am in a position to agree with the noble Lord that he did recommend an exception in relation to journalists. I am told that his recommendation was in relation to Section 18 of the Prevention of Terrorism Act. We are not dealing with that section; as I understand it, it has been repealed. So I do not think the position is as the noble Lord recalls it. Perhaps may write to him on this point.

So far as concerns "reasonable excuse" and its relationship to the Goodwin case, we believe that Clause 19 does not offend against the convention. "Reasonable excuse" is plainly one part of that. It will be one part of the way in which the section operates. I do not know what was the significance of "betting a blood orange", but it seems to us that, looked at overall, including the "reasonable excuse" defence, the clause complies with the convention.

Lord Lester of Herne Hill

My Lords, I thank the Minister for that reply, but I am still in the dark. The offence is committed if the newspaper does not disclose to the police certain information which has come to the attention of the newspaper in the course of following its profession of journalism. The provision therefore imposes a severe criminal penalty on freedom of expression and in a way that would require the disclosure of confidential information unless there were "reasonable excuse" for not doing so. Respectfully, therefore, I repeat the question. Is it the Government's intention that the confidentiality of sources will be overridden? If so, how does that comply with the Goodwin case?

Lord Falconer of Thoroton

My Lords, one must look at the whole of Clause 19, including subsection (3). The noble Lord selects the beginning of the clause but does not look at it as a whole or its background.

Lord Goodhart

My Lords, I regret that I have not been persuaded by the response of the noble and learned Lord. He was unable to point to any real reason why the Government or police should obtain a benefit from including journalists within Clause 19. The idea that a loophole will be created by excluding journalists is wholly fanciful. Journalism does not involve itself in money-laundering. Therefore, if nominally a journalist organisation goes in for money-laundering that is not an activity that it undertakes in the course of the trade, profession or business of journalism. That means that it will not be caught anyway under Clause 19 unless a particular organisation can be regarded as carrying on some other business.

Be that as it may, we on these Benches regard Clause 19, in so far as it applies to journalists, as a serious infringement of freedom of speech and the press. That being so, we believe that it is appropriate to seek the opinion of the House.

5.11 p.m.

On Question, Whether the said amendment (No. 14) shall be agreed to?

Their Lordships divided: Contents, 65; Not-Contents, 145.

Division No. 1
CONTENTS
Addington, L.	Darcy de Knayth, B.
Avebury, L. [Teller]	Desai, L.
Barker, B.	Dundee, E.
Beaumont of Whitley, L.	Eden of Winton, L.
Bradshaw, L.	Ezra, L.
Clark of Kempston, L.	Ferrers, E.
Clement-Jones, L.	Geddes, L.
Cox, B.	Geraint, L.
Crickhowell, L.	Goodhart, L.[Teller]

Gray of Contin, L.	Northover, B.
Greaves, L.	Oakeshott of Seagrove Bay, L.
Hamwee, B.	Phillips of Sudbury, L.
Harris of Greenwich, L.	Razzall, L.
Holme of Cheltenham, L.	Redesdale, L.
Hooper, B.	Rennard, L.
Hooson, L.	Roberts of Conwy, L.
Hylton, L.	Rodgers of Quarry Bank, L.
Jenkins of Hillhead, L.	Roper, L.
Lester of Herne Hill, L.	Russell, E.
Lucas, L.	Ryder of Wensum, L.
Lyell, L.	Sandwich, E.
	Scott of Needham Market, B.
McConnell, L.	Shutt of Greetland, L.
Mackie of Benshie, L.	Smith of Clifton, L.
McNally, L.	Taverne, L.
Marlesford, L.	Taylor of Warwick, L.
Methuen, L.	Thomas of Walliswood, B.
Miller of Chilthorne Domer, B.	Thomson of Monifieth, L.
Monson, L.	Tope, L.
Montrose, D.	Tordoff, L.
Moynihan, L.	Tugendhat, L.
Newby, L.	Walmsley, B.
Newton of Braintree, L.	Wigoder, L.
NOT-CONTENTS
Acton, L.	Gavron, L.
Ahmed, L.	Gibson of Market Rasen, B.
Alli, L.	Gladwin of Clee, L.
Amos, B.	Goudie, B.
Andrews, B.	Gould of Potternewton, B.
Archer of Sandwell, L.	Graham of Edmonton, L.
Ashley of Stoke, L.	Greengross, B.
Ashton of Upholland, B.	Grenfell, L.
Bach, L.	Hardy of Wath, L.
Barnett, L.	Harris of Haringey, L.
Bernstein of Craigweil, L.	Harrison, L.
Billingham, B.	Haskel, L.
Blackstone, B.	Haskins, L.
Blease, L.	Hayman, B.
Bledisloe, V.	Hilton of Eggardon, B.
Blood, B.	Hogg of Cumbernauld, L.
Borrie, L.	Hollis of Heigham, B.
Bragg, L.	Howells of St. Davids, B.
Brennan, L.	Howie of Troon, L.
Brett, L.	Hoyle, L.
Brooke of Alverthorpe, L.	Hughes of Woodside, L.
Brookeborough, V.	Hunt of Chesterton, L.
Brooks of Tremorfa, L.	Hunt of Kings Heath, L.
Burlison, L.	Irvine of Lairg, L. (Lord Chancellor)
Carter, L.[Teller]
Chandos, V.	Islwyn, L.
Christopher, L.	Janner of Braunstone, L.
Clarke of Hampstead, L.	Jay of Paddington, B. (Lord Privy Seal)
Cledwyn of Penrhos, L.
Clinton-Davis, L.	Jeger, B.
Cohen of Pimlico, B.	Judd, L.
Colville of Culross, V.	Kirkhill, L.
Crawley, B.	Layard, L.
David, B.	Lea of Crondall, L.
Davies of Coity, L.	Lipsey, L.
Davies of Oldham, L.	Lockwood, B.
Dixon, L.	Lofthouse of Pontefract, L.
Dormand of Easington, L.	Longford, E.
Dubs, L.	Lovell-Davis, L.
Elder, L.	McCarthy, L.
Evans of Parkside, L.	Macdonald of Tradeston, L.
Evans of Temple Guiting, L.	McIntosh of Haringey, L. [Teller]
Evans of Watford, L.
Falconer of Thoroton, L.	McIntosh of Hudnall, B.
Farrington of Ribbleton, B.	MacKenzie of Culkein, L.
Faulkner of Worcester, L.	Mackenzie of Framwellgate, L
Filkin, L.	Marsh, L.
Fyfe of Fairfield, L.	Mason of Barnsley, L.
Gale, B.	Massey of Darwen, B.

Merlyn-Rees, L.	Shepherd, L.
Milner of Leeds, L.	Shore of Stepney, L.
Mitchell, L.	Simon, V.
Molloy, L.	Smith of Gilmorehill, B.
Molyneaux of Killead, L.	Smith of Leigh, L.
Morris of Castle Morris, L.	Stewartby, L.
Morris of Manchester, L.	Stoddart of Swindon, L.
Murray of Epping Forest, L.	Stone of Blackheath, L.
Nicol, B.	Strabolgi, L.
Palmer, L.	Taylor of Blackburn, L.
Patel of Blackburn, L.	Tenby, V.
Paul, L.	Thornton, B.
Peston, L	Tomlinson, L.
Pitkeathley, B.	Turnberg, L.
Plant of Highfield, L.	Turner of Camden, B.
Ponsonby of Shulbrede, L.	Warner, L.
Prys-Davies, L.	Warwick of Undercliffe, B.
Puttnam, L.	Wedderburn of Charlton, L
Ramsay of Cartvale, B.	Whitaker, B.
Randall of St. Budeaux, L.	Wilkins, B.
Rea, L.	Williams of Elvel, L.
Rendell of Babergh, B.	Williams of Mostyn, L.
Richard, L.	Williamson of Horton, L.
Roll of Ipsden, L.	Winston, L.
Sewel, L.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.21 p.m.

Clause 35 [Duration]:

[Amendments Nos. 15 and 16 not moved.]

Clause 40 [Terrorist: interpretation]:

[Amendments Nos. 17 to 19 not moved.]

Lord Glentoran moved Amendment No. 20: After Clause 64, insert the following new clause—

("Inferences and forfeiture orders

cc191-224
1. INFERENCES: OFFENCES UNDER THIS PART 15,389 words, 1 division
cc224-46
2. Indonesia 10,326 words
c246
3. European Parliamentary Elections Bill [H.L.] 25 words