HL Deb 16 May 2000 vol 613 cc214-78

5.15 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN of COMMITTEES (Lord Elton) in the Chair.]

Clause 1 [Terrorism: interpretation]:

The Deputy Chairman of Committees (Lord Elton)

Before I call Amendment No. 1, I must tell the Committee that, if it is agreed to, I shall be unable to call Amendments Nos. 2 to 8 inclusive.

Lord Cope of Berkeley moved Amendment No. 1: Page 1, line 7, leave out from ("use") to ("outside") in line 14 and insert ("of serious violence against persons, or the causing of serious damage to property, or the threat to use such violence or cause such damage, to intimidate or coerce a government, the public, or any section of the public, in order to promote political, religious or ideological objectives. (2) In subsection (1)—

  1. (a) "damage" includes any interference with electronic systems,
  2. (b) "property" includes any public utility undertakings,
  3. (c) "violence" includes the causing of personal injury,
  4. (d) "use" includes use").

The noble Lord said: This amendment, and those grouped with it, concern the definition of the word "terrorism". As we know, the Bill does not create an offence of terrorism in itself, but the definition is the key that allows the police, the courts, the Government, and so on, to use the special anti-terrorist measures provided by the legislation, some of which contain reference to offences which were thought necessary to their proper operation. Therefore, from the point of view of offences, but also in a much wider sense, the definition is vital to the success of the Bill.

It is most important for the definition to be correct. Apart from the offences, it is what triggers the additional powers for the police, the courts and others, which are provided in the Bill. Judging by the Second Reading debate, I believe that we are all agreed that those powers should not be triggered except in the case of genuine terrorist outrages, because they run against our normal expectation of the freedom of the individual, human rights, and so on. So the definition is of the first importance.

There has been a great deal of discussion about the definition because it is very difficult to formulate one in legal language that will stand up to the pressures placed upon it. The discussions in another place about what the proper definition should be continued right up until the end of its debates on the Bill, with the Minister saying at intervals that he was willing to consider the arguments. Therefore, I do not believe that the Government regard the definition as being set in concrete at this point, or that they would necessarily go to the stake for it—provided, of course, that we can convince them of the desirability of modifying the definition.

The definition in the Bill does not follow the lines recommended by the noble and learned Lord, Lord Lloyd of Berwick, in his report on the situation, which forms the foundation of the legislation; nor is it in line with that recommended by Mr John Rowe QC, who reported on these matters. Indeed, it does not follow the definition to be found in the Government's own consultation document. The responses to the consultation document supported the earlier formulations as developed in the report of the noble and learned Lord, Lloyd Lloyd, and in the views held by Mr Rowe and others. It was rather a surprise to note that the definition did not follow those formulations accurately. So far we do not seem to have been given a clear explanation of why the Government changed their mind in that respect.

This afternoon I propose to address the points of interest with regard to the definition comparatively briefly to give the Minister and others the opportunity to outline the Government's case and to allow us to discuss the matter as fully as possible. I hope that that will enable us to achieve wider agreement on all sides of the Chamber before we reach the later stages of the Bill. As I say, I recognise that it is difficult to arrive at a wholly satisfactory definition.

Amendment No. 1, which stands in my name, reproduces the definition of "terrorism" as proposed by Mr John Rowe QC in a letter written after the Second Reading—and obviously after having seen the Bill—to myself and to a number of noble Lords including the Minister. Since I tabled the amendment I have had the opportunity to discuss the matter with the noble and learned Lord, Lord Lloyd of Berwick. He told me that he much regretted that an unbreakable engagement this evening prevents him attending this debate as he would have wished. He told me that I could inform the Committee that he thinks that Mr Rowe's draft is an improvement on his own suggestions. The noble and learned Lord believes that the definition in the Bill is seriously defective. While I do not in any way seek to tie him to every word that I say, I believe that he and I are in general agreement as regards the problems concerning the definition as it appears in the Bill.

The most important difference between the definition in the Bill and Mr Rowe's formulation in Amendment No. 1 is the omission in the Bill's definition of the concept of terror, of placing the public in fear or—as stated in Amendment No. 1— to intimidate or coerce a government, the public, or any section of the public".

Most of us believe that terror is of the essence of terrorism. The dictionary definitions all seem to contain that concept. Their definitions of "terrorism" refer to the use of terror and fear to try to influence governments, public policy and public action. This is not just a case of a semantic disagreement; it is more important than that. The omission of this concept from the definition extends it much more widely. That is why the definition in the Bill has given rise to much concern that it would cover all kinds of legitimate protests, even, for instance, a political argument in a pub which led to an exchange of blows.

Each of us can, no doubt, think of groups of protestors with whom we agree and others with whom we disagree. We can all deplore violence of any kind in support of both causes with which we agree and those with which we disagree. However, laws exist to combat such violence and it is going too far to brand all such violence as terrorism, which the Bill potentially does. That is the most important difficulty as regards the definition in the Bill.

I turn to the second difference, which is much more minor. Mr Rowe's formulation uses the phrase, "serious damage to property" rather than "serious violence to property". I consider that the phrase "serious damage to property" constitutes better English, but I am not so sure what is the legal difference, if any, between "serious damage to property" and "serious violence to property". However, it strikes me that "damage" is wider than "violence". If, for example, one entered a building and turned all the taps on, that is not a violent action of itself but it could cause an immense amount of damage to the building. There are numerous other, perhaps less homely, examples that one could mention in the context of terrorism.

The third difference is much more important. Unlike the definition in Amendment No. 1, the Government's formulation in the Bill does not specifically include, "interference with electronic systems". I believe that we shall return to so-called "cyber terrorism" throughout the Committee stage. It is important that the definition we are discussing should include cyber terrorism. The only question that arises is whether it needs to be included in the specific legal wording. I rely on the legal expertise of Mr Rowe and the noble and learned Lord in thinking that it is desirable that a phrase of this kind should be included in the definition.

I do not think that there is any doubt in any of our minds at present about the potential dangers of cyber terrorism. If there was, the "love hug" and its effect on the parliamentary system a few days ago should have reminded us of those dangers. As far as we know that was not the work of terrorists but of amateurs, relatively speaking. Cyber terrorism and the use of electronic devices to damage systems in pursuit of political and ideological objectives is taken extremely seriously in the United States. The director of the Cyber-Terrorism Taskforce, who is advising Congress in the United States on this matter, explained the other day that the first official terrorist use of what he called "offensive information operations" occurred two years ago when the Tamil Tigers disrupted Sri Lankan embassy communications in Washington, Ottawa and Korea. As I say, this threat is taken extremely seriously in the United States.

Experts from the Home Office are this week attending a conference in Paris for three days, with other nations in the Group of Eight, to debate ways of harmonising computer crime law in case criminals attempt to use viruses of the kind I have mentioned to attack networks. That conference is, apparently, primarily concerned with crime rather than terrorism, but the effect of such action is the same. No doubt lessons can be learnt at that conference with regard to laws on terrorism as well as laws on crime. Anything that the Minister can tell us about the conference and the lessons to be learnt in terms of this Bill would be valuable.

The fourth difference between the two definitions I am discussing is that the definition in Amendment No. 1 specifically includes a reference to "public utility undertakings". Strictly speaking, this may not be necessary in a legal sense. I think that it is desirable to make the matter clear in case there should be any argument, but I accept that it is a less important difference than some of the others that I have mentioned.

The fifth difference is that the Amendment No. 1 definition includes "the causing of personal injury". That could be taken to refer to, among other things, punishment beatings. There was some discussion about this issue at Second Reading. It is extremely important that punishment beatings in Northern Ireland, which have been practised until recently in a very vicious fashion indeed—by both sides, I hasten to add; not only by terrorists on one side—are seen as terrorist actions, which indeed they are. Punishment beatings by terrorists are intended to control sections of the population—often to control sections of their own population, as it were; their own side of the divide. Punishment beatings are a part of terrorist activity and should be included in the definition.

One can argue that it may not be necessary to define them specifically, but I believe that it is desirable to do so, as do Mr Rowe and the noble and learned Lord. In all these ways, the definition given in Amendment No. 1 is preferable to the definition given in the Bill.

Included in this group of amendments are a number of possible variations of the definition which have been proposed by myself and by others, notably by the Liberal Democrats and by the noble Lord, Lord Beaumont. They cover some of the points to which I have referred. I shall respond to points made later in the debate, but obviously I support the elements of their definitions which are similar to mine.

It is desirable that the definition should be as good as it possibly can be in order to ensure that it will stand up to legal attack and legal examination in the courts in the future. It is also necessary in order that there should be no doubt in anyone's mind that we are not trying to go further than what we all understand by "terrorism"; that we are seeking to ensure that the powers set out in the Bill are available to the police and to the courts in terrorist cases. I beg to move.

5.30 p.m.

Lord Goodhart

Our Amendment No. 3 adds a further element to this interesting and important discussion about how terrorism should be defined. It is worth the Committee taking some time to discuss these issues and to see how far we can get towards a consensus. That may enable us to come back at a later stage with a more effectively targeted definition.

We believe that the definition in the Bill as it now stands is in some respects too wide and in other respects too narrow. We believe that it is too narrow because it requires the relevant terrorist acts to be, for the purpose of advancing a political, religious or ideological cause". We do not think that motive is a necessary or desirable part of the definition. A motive for terrorism could be none of these; it could be criminal. For example, a group of criminals could get hold of radioactive material and threaten to let off a crude bomb which would scatter it around an inhabited area such as central London unless the Government buys them off by submitting to blackmail.

Criminal terrorism is fairly rare, but it certainly happens. For example, it plainly happens in Columbia, where the drug cartels go in extensively for terrorism. It could happen in many other parts of the world and there is no reason to suppose that it could not happen in the United Kingdom.

We could, of course, deal with that particular point simply by adding the word "criminal" to the words "political, religious or ideological"—but why bother to do that? If acts are being committed which involve deliberate violence being directed against the public or against a government in order to intimidate, why does it matter what the motive is? It simply adds an unnecessary element which has to be proved before a conviction can happen. It possibly opens up the prospect that someone could be charged with a criminal offence because of a political motive and could then claim that he should be acquitted because his motive was not political but ideological. That I think is the kind of "logic-chopping" argument that any definition should seek to avoid.

But the definition is also too wide. First, it does not require violence. I believe that violence is, in most circumstances, an essential element of terrorism, with the exception of cyber terrorism. I agree entirely with the noble Lord, Lord Cope: cyber terrorism is clearly something which has to be taken very seriously. We could well end up with something far more damaging than the "love bug", which turned out to be a serious nuisance but not a major economic threat.

Under the Government's definition, a long strike by refuse collectors could create a serious risk to the health of the public. It could, therefore, come within the Government's definition of "terrorism". But that plainly would not be regarded as "terrorism" in any normal use of the word.

Secondly, where the Government's definition refers to violence, it does not require that violence to be unlawful. The actions taken on behalf of Her Majeity's Government and other states in Kosovo and Serbia last year involved serious violence against the person and property; it was, unquestionably, for the purpose of advancing a political cause. It therefore seems to me that that is plainly within the Bill's definition of "terrorism", even though the violence was lawful under the law of the United Kingdom. Plainly some change to the definition—which could be done simply by describing the violence as "unlawful"—is necessary to ensure that we do not end up with that kind of absurdity.

Thirdly, under the Bill the definition of "terrorism" can be triggered by too low a level of violence against property. It has been suggested that the action of Greenpeace in pulling up GM crops might fall within the Bill's definition. I do not think that that is so; it would be difficult to regard that kind of violence as falling within a definition of "serious violence". But the actions in Whitehall and adjacent areas on May Day could certainly be regarded as involving serious violence to property, although I believe that they fell short of the level of violence required to constitute terrorism.

I do not accept the arguments from some quarters that violence against property can never of itself amount to terrorism. Economic terrorism is plainly possible. Indeed, a high proportion of IRA terrorism has been for economic reasons. The bombs in the City of London and in Canary Wharf in recent years were primarily intended to cause economic damage, although, sadly, they caused some loss of human life and injury.

A terrorist campaign involving putting the London Underground out of action or destroying a number of the Thames bridges in London would cause serious damage to the economic well-being of London and would be properly regarded as terrorism even if steps were successfully taken to ensure that it was done with no loss of life or serious injury. So, for example, would attacks on the National Grid. As has already been said, cyber-terrorism holds enormous prospects for economic damage.

I am not convinced that our definition is the best that can be achieved—I think further improvements could be made to it—but it does include what I believe is the core definition of terrorism as far as possible and little, if anything, beyond it.

That core definition seems to me to involve these factors. First, there must be serious and unlawful violence, extending that definition of violence to include cyber-terrorism but not actions such as strikes. Secondly, that violence must be directed against the public or a section of the public. Thirdly, where the violence in question is violence against property, it must be at a level which causes serious economic damage to the country as a whole or to a significant part of the country such as London.

Lord Avebury

The examples that the noble Lord gave such as attacks on the London Underground or attacks on the bridges would surely be serious criminal offences under our existing law.

Lord Goodhart

Of course they would be serious criminal offences under our existing law. However, that is not a sufficient reason for saying they should not be regarded as terrorism. The essence of terrorism is not merely that they are serious offences but that they are serious offences directed against the public either in terms of causing physical threats to sections of the public or in causing serious economic damage. That is, for instance, why the powers that are given to control terrorist organisations may he required in cases where the terrorism in question is economic terrorism of this kind.

I believe that our definition in Amendment No. 3 is better than the definition in the Bill. The amended version moved by the noble Lord, Lord Cope, was indeed an improvement on that in the Bill, but that in itself is capable of improvement, particularly in two respects. First, it includes what I regard as an unnecessary reference to the motive for the terrorism. Secondly, the terrorism is once again triggered by too low a test of violence to property. For example, within the Conservative definition, road protesters sabotaging construction machinery by setting it on fire could be committing acts of serious violence for a political or ideological motive and would therefore come within that definition, though I do not think it is appropriate in those circumstances that they should do so. That is certainly criminal damage but it is not damage which causes severe harm to the economy and therefore is not, in my opinion, appropriate to be described as terrorism.

That is an explanation of our views. I await with interest what the Government and other speakers have to say on this matter.

5.45 p.m.

Lord Beaumont of Whitley

The proposed definition of terrorism in the Bill is wider than that employed in the Prevention of Terrorism (Temporary Provisions) Act 1989. That Act stated that, 'terrorism' means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear". The new definition in the Terrorism Bill will apply to terrorism connected to matters in Northern Ireland, international terrorism and, for the first time, actions by domestic groups in Great Britain. Additionally, the purpose necessary for actions to be defined as terrorist has been widened beyond the merely political to include religious and ideological causes. The definition of violence has also been extended to serious violence against any person or property.

The definition goes even further in that it also includes acts which create a serious risk to the health or safety of the public or a section of the public. This is not qualified by the need to show that violence has been used to intimidate or coerce a government, the public or a section of the public. It also includes action taken for the benefit of a proscribed organisation. There are real concerns that, for example, road protesters and those opposed to genetically modified crops will be among those whose activities are branded as terrorist, whereas, whether they are right or wrong, they are clearly at a lower level than that.

The definition has also removed the distinction usually made in the criminal law between acts which injure people and actions which damage property. I do not go quite as far as those who think that property is theft, but I do go as far as those who think theologically that all private property is lent and is not absolute property to be disposed of as anyone wants. Therefore, I think there is an important distinction to be made between the public property about which the noble Lord, Lord Goodhart, has been talking, and private property. We might explore a little in this debate at some stage.

The rationale behind such a distinction is the deterrence of acts which threaten life. Thus crimes that injure or endanger life normally carry higher penalties than those that damage property. No such distinction is made in the definition of terrorism adopted by the present Bill. Therefore, there is a risk, which must be taken seriously, that there will be no incentive under the scheme of the Bill for a terrorist to choose targets which do not endanger other people.

One of the principal concerns about the Bill's definition of terrorism in relation to the application of human rights standards is that it is so broad as to lack certainty. The definition of terrorism in the Bill is crucial because it forms the basis for the application of much of the remainder of the Bill. Since the consequences of the definition are so great, it is important that the scope of the definition should be clearly ascertainable and justifiable so as to ensure the credibility of the legislation and its enforcement mechanisms.

In analysing the proposals contained in the Terrorism Bill against the provisions of the European Convention on Human Rights, it is important to bear in mind that hitherto consideration of the laws of terrorism by the court has been concerned with particular types of political violence. The broadening of the definition of terrorism to include actions undertaken for religious or ideological causes and the inclusion as terrorist organisations of domestic groups is likely to put the proposed terrorist laws to even more stringent examination under the convention, both at the Court of Human Rights and later in domestic courts when the main provisions of the Human Rights Act 1998 come into force in October 2000.

This is a very, very important definition. There was a great deal of debate about it in another place which, as has been said, was really indeterminate in the end and no one, even the Government, appears to be absolutely certain as to what they want the answers to be. I hope my amendments in this area are helpful. I very much look forward to hearing the debate at this stage and hope that some kind of consensus may arise which will lead to us having a more focused debate at Report stage than was had in another place or than we are likely to have this evening.

Lord Lester of Herne Hill

I find myself in the position of agreeing with all of the speeches made so far. All of us are seeking to, in the words of the noble and learned Lord, Lord Lloyd of Berwick, in his report, strike the right balance between the needs of security and the rights and liberties of the individual". That is one of the noble and learned Lord's four principles. All of us are struggling, as must the Government and their advisers have struggled, to find a definition that is not over-inclusive, in that it hits at a wider target than is really necessary, or under-inclusive, in not including conduct which deserves to be stigmatised as terrorism and made unlawful, subjected to severe sanctions and conferring on the police and the security service necessary but very wide powers. That is why all of us are concerned to achieve reasonable legal certainty in the definition of what constitutes terrorism.

My noble friend Lord Goodhart explained very fully the reasons why we have put forward the amendment and so I shall not take the time of the Committee by adding very much to what he said. But I should like to make one or two points. First, I think it was the noble Lord, Lord Merlyn-Rees, who once said in relation to Section 2 of the Official Secrets Act 1911—perhaps it was Lord Franks who said it first—that it was a blunderbuss. The noble Lord, Lord Merlyn-Rees, said that it should be replaced by an Armalite rifle. It is important that the definition in the Bill of terrorism should be more like an Armalite rifle than a blunderbuss. We are concerned that in some respects there is unnecessary vagueness and over-inclusiveness.

There is a great deal to commend the amendment in the name of the noble Lord, Lord Cope of Berkeley. We can see advantages in each other's definitions and are searching towards a consensus definition. No one has achieved a perfect definition. Amendment No. 1, in the name of the noble Lord, Lord Cope, is a useful amendment. Its disadvantage is that it retains the requirement for terrorist action to be political, religious or ideological in motivation, which may well be problematic, and it also requires that the threat of violence is, to intimidate or coerce a government, the public, or any section of the public". That has the advantage of securing some kind of proportionality requirement and is modelled on the recommendation of the noble and learned Lord, Lord Lloyd of Berwick.

Amendment No. 5, in the name of the noble Lord, Lord Beaumont of Whitley, restricts the application of the Bill to, unlawful action which is intended to intimidate or coerce a government, the public or any section of the public". That is in line with the review of the noble and learned Lord, Lord Lloyd. I prefer the amendment in our names because what constitutes intimidation or coercion is very unclear and could also be unnecessarily restrictive. Amendment No. 7, in the name of the noble Lord, Lord Beaumont, restricting the application of terrorist legislation to what he describes as, serious violence against property which endangers the life of, or risks serious injury to, another", would exclude much economic sabotage or terrorist activity directed against infrastructure, including cyber-terrorism, as my noble friend Lord Goodhart indicated.

We have difficulties with those amendments for those reasons. We all seek a fair balance and we are not satisfied that the Government's wording is sufficiently inclusive and in some respects it hits too wide.

Lord Taylor of Giryfe

I hope that the Committee will be able to come up with a consensus and a clear definition in this matter. I should like the Minister to say a few words about our international obligations in connection with the definition of terrorism with regard to both the European Court and any other international court which deals with these matters. I ask that because I am reasonably familiar with a case, which is outstanding, in Greenock sheriff court. Three ladies of deep religious conviction and associated with a pacifist religious group took a boat, went out to a Trident submarine sitting in Holy Loch, obtained access to the submarine and promptly put £40,000 of computer equipment into the Holy Loch. That was their protest.

Under the definitions in the Bill it would appear that they would be guilty of action against property. However, that is not what the sheriff of Greenock sheriff court decided. She was led evidence of the findings of an international court which deliberated on this matter and argued that since Trident is an offence against humanity they were quite justified in taking the action they took because Trident in itself is illegal except when applied in self-defence. The three ladies were acquitted and under Scottish law they cannot be retried. They were acquitted on the grounds that their action, which in the Bill's definition would be an offence, did not constitute an offence because they were avoiding a greater offence against humanity.

I am sorry that I have not given my noble friend notice of this matter but it is an interesting case. It arises from the issues we have been discussing concerning what is an offence against property. I would be happy if the Minister could give us some guidance on the implications of this matter as it is affected by European or international jurisdiction.

Lord Hylton

At Second Reading there was general agreement, with the exception, of course, of the government, that the Bill is too widely drafted and perhaps nowhere more so than in its definition of terrorism. I should therefore like to ask the Government whether they have studied the other current definitions that exist in other jurisdictions. In particular, have they examined how those have worked out in practice and are they too wide or too narrow?

I turn to Amendment No. 1. It is vitally important that the definition should establish that the person in question has an intention to commit terrorism—in legal language, that he has the mens rea.> Amendment No. 1 seems to wish to do that by bringing in the words "intimidate or coerce". I notice that similar words occur again in Amendment No. 5.

I move on to the following words, "a government". I would prefer to see in their place a phrase such as, "the institutions of democratic government". That wording was put forward by the Northern Ireland human rights commission, a semi-statutory body.

The noble Lord, Lord Cope, rightly pointed out that the phrase, "serious damage to property", is almost certainly preferable to the Government's phrase of "violence" to property. Perhaps I may add that, as drafted, the Bill refers to any property anywhere in the world, regardless of whether that property is valuable or important.

The noble Lord, Lord Goodhart, was right to use the words "unlawful violence" in Amendment No. 3 because we do not want to include, for example, a strike held by nurses. Furthermore, he and others were, in my view, correct to mention economic damage and to stress that it should be "serious" economic damage.

I conclude by expressing the hope that a consensus will be reached by the time we reach Report stage and that we shall end up with a generally agreed definition.

6 p.m.

Lord Avebury

I think we shall be in serious difficulty if we retain the definition in Clause 1 as it stands. My noble friend Lord Goodhart touched on this when he pointed out the distinction between acts that might be committed by a terrorist against the London Underground or the bridges crossing the river Thames, on the one hand, and the kind of violence against property exhibited during the May Day demonstrations, on the other. No one in their right mind would suggest that the person who daubed the statue of Sir Winston Churchill in Parliament Square should have been convicted of an act of terrorism. In my opinion it was bad enough that he was sent to prison at all for an offence of daubing graffiti, but it certainly was not what an ordinary member of the public would consider to be a serious act of violence.

The difficulty with the definition lies in the fact that, in the law as it now stands, that phrase is not well understood. I am advised that it occurs in Section 60 of the Criminal Justice and Public Order Act 1994 in which powers have been given to the police to search people without the need for reasonable grounds if an act of serious violence is feared. The problem with the provision is that it has never been tested in the courts. For that reason, people who are searched under the terms of that provision do not think it would be easy to go to court and challenge the interpretation of the police by saying that what was contemplated was not serious violence within the meaning of the Criminal Justice and Public Order Act.

The Government need to convince noble Lords that the phrase would be easily interpreted by the courts and that it would not be applied in cases where common sense would dictate that a person should be charged with a lesser offence.

Another interesting point that noble Lords should bear in mind when deciding on the definition is the incompatibility between Clause 1 and what is proposed under Clause 59(2)(e) where reference is made to a person who commits the offence of inciting terrorism overseas. The essential element of that offence is that the act to be incited should, if committed in England or Wales, constitute one of the offences listed in subsection (2) of Clause 59. That includes, in subsection (e), an offence under section 1(2) of the Criminal Damage Act 1971 (endangering life by damaging property)". The test of a terrorist act overseas is far less rigid than that which we shall apply in the United Kingdom. I would prefer to see the two definitions aligned. It seems to me to be perfectly reasonable that a person should be charged with an offence of terrorism if the damage to property is such as to cause loss of life or to threaten to cause loss of life. I do not know whether the examples given by my noble friend fall into that category.

It could be argued that, in a case where someone damaged the National Grid so that electricity was suspended in a certain area and people dependent on artificial lungs had their lives put in jeopardy, an offence of terrorism might apply. However, to include such a general definition of damage to property as now stands in the clause is extremely dangerous.

That is especially the case when one considers the term "ideology". That, too, is undefined. I do not know what the Government mean by "ideology". Perhaps they will explain it. For example, let us suppose that one's ideological belief is that housing is an absolute right, that property is theft, and that one is entitled to break into a house owned by the local authority and take possession of it. Are we to say here that that is an act of terrorism? We may disagree with the act—I do not like squatters—but to pretend that such an offence should be included in a definition of terrorism would be taking things much too far.

Whether we accept the definition proposed by my noble friend, which personally I think provides the right answer, or that put forward by the noble Lord, Lord Beaumont, the fact is that the definition in the Bill is grossly unsatisfactory and needs to be amended.

Lord Bassam of Brighton

We have had an extremely helpful and useful debate this afternoon. I am very impressed by the contributions made by all Members of the House because they have been delivered so constructively and thoughtfully. As I work through my remarks I shall try to deal with as many of the points that have been raised under the various amendments as I can. I hope that noble Lords will give me the time needed to do that, because I believe that this is the most important area of discussion and debate on the legislation before us.

The noble Lord, Lord Lester of Herne Hill, was right to remind us that we must ensure that we deal with the Armalite rather than the blunderbuss. That was a helpful reminder of how we need to consider this whole debate: how wide should we make the definition and how should we narrow it down at certain points? That offers the parameters for the debate and illustrates the difficulties we face in getting this just right. I am grateful, too, for the sympathy many noble Lords have expressed as regards the difficulty of the exercise.

Perhaps I may make a number of opening remarks about definition and then go through the various points that have been raised. If I repeat some of the remarks I made in the debate on Second Reading, then I apologise to noble Lords. However, I am sure that some of those comments will bear repetition. First, I shall explain the consideration behind the Government's definition, which draws heavily on the existing definition in the prevention of terrorism Act. That defines terrorism as the use of violence for political ends, including putting the public or any section of the public in fear. That definition has stood the test of time. It has not changed since the prevention of terrorism Act was first introduced in 1974. It has, in its rough and ready way, worked well. We took the view that the definition should be changed only where it was necessary to do so.

Secondly, we considered carefully the definition proposed by the noble and learned Lord, Lord Lloyd of Berwick, in his report. The new elements introduced were the application of the definition to all forms of terrorism; the raising of the threshold to "serious violence"; the inclusion of threats as well as acts; and the inclusion of additional "qualifying motivations"—so social and ideological as well as political objectives were included; and the requirement that, for an action to be classed as terrorist, it must be done to intimidate or coerce a government or the public. The noble and learned Lord proposed also that the definition should cover, the terrorist who without using violence sets out to disrupt vital computer installations such as air traffic systems thereby causing great danger to life". We agreed with the noble and learned Lord on most of his conclusions and we believe that our definition covers virtually all of those points.

The noble and learned Lord offered a helpful reminder to us at Second Reading. He said that there was great difficulty in finding a satisfactory definition. He went on: Indeed, I was unable to do so and I suspect that none of us will succeed … [but] we must do our best".—[Official Report, 6/4/00; col. 1444.] That is the spirit in which we should conduct our debates as we work through the Bill.

Thirdly, as now, there is no terrorism offence linked with the definition. What the definition does is to trigger the availability to the police and others of certain powers and offences. We need to understand it in that context. The role of the definition is to set the parameters within which the powers and offences under the Bill may operate.

Fourthly, and importantly, we took the view that it was essential that the definition should cover all the ground that experience over the past 25 or more years, and our assessment of future threats, suggest should be covered—so that the police and other security agencies always have at their disposal the powers that they need to combat terrorism. In working up the new definition we consulted the police and other agencies closely and took careful account of their views. While we of course recognise the importance of the circumstances being proportionate in which the additional offences and powers under the Bill are available, we should be failing in our duty if the definition of terrorism did not extend to the full range of contexts where security advice and experience suggest they are needed. A judgment has to be made based on security and other considerations. The fact that some of the amendments before the Committee seek to limit the scope of the definition, while others seek to extend it, indicates the complexities involved.

Fifthly, and finally, while the Government would never be so complacent as to suggest that there is no chance that the definition could be improved upon—which is why we have been grateful to consider alternatives that have been proposed—we continue to believe that the definition on the face of the Bill is, roughly speaking, the right one. We believe that it balances correctly the need to ensure that the definition is only as wide as it needs to be with the need to ensure that the police are confident that they will always have at their disposal the powers and offences that they need to fight terrorism.

I now turn to points raised in relation to particular amendments, and, first, to those of the noble Lord, Lord Cope. We believe that the amendments tabled—

6.15 p.m.

Lord Lester of Herne Hill

Before the Minister turns to amendments tabled by other noble Lords, perhaps I may ask him a question relating to Clause 1(1) as it now stands, which causes me a problem as regards what he rightly referred to as proportionality. The problem is this. On the Government's definition, paragraphs (a) and (b) of Clause 1(1) refer to conduct which does not necessarily give rise to a serious risk to the public at large. In the words of paragraph (a) it is conduct that, involves serious violence against any person or property", and in (b), endangers the life of any person". Then there is the word "or", and paragraph (c) refers to conduct which, creates a serious risk to the health or safety of the public or a section of the public". So only in paragraph (c) does one come for the first time to the idea of conduct that threatens the public at large. Is there not a problem with a definition of terrorism that triggers later in the Bill the use of very strong counter-terrorist powers to combat action that does not give rise to a serious threat to public wellbeing? Does it not create a potential problem under the European Convention on Human Rights when it comes to using those very wide and necessary powers to deal with conduct which does not threaten the public or a section of the public?

Lord Bassam of Brighton

The noble Lord raises an interesting point. We have taken the view that the Bill is compatible with the convention and that serious violence against personal property or action that endangers the life of any person can in its outcome create a serious risk to the health and safety of the public or a section of the public. That is the important part of the definition and it is on that that we rely. I shall study the noble Lord's comments and reflect on them, but we are content that the provisions are compatible with ECHR considerations.

Lord Lester of Herne Hill

I thank the Minister for that reply. Will he reflect also on the fact that the Goodhart amendment is focused throughout on, directed against the public or a section of the public". That is why that amendment ensures proportionality. Will the Minister reflect on that point when reading the debate?

Lord Bassam of Brighton

I happily undertake to reflect on it. I make no promises in that regard. I should like to deal with the points as we work through the Bill.

Perhaps I may express some of the concerns that we have with the alternative definition suggested by the noble Lord, Lord Cope. It provided a useful starting-point for debate. The noble Lord talked at some length about the use of the word "damage", not "violence", in connection with property. Mr John Rowe, the annual reviewer of the operation of the prevention of terrorism Act and the emergency provisions Act has suggested that "damage" is the more usual word to use in connection with property. We recognise that, but prefer the term "violence" because it is, we consider, more appropriate to the sort of conduct which is normally considered to be terrorism. Action which seriously damages property but does not involve serious violence—for example, graffiti, to take up the point made by the noble Lord, Lord Avebury—might seriously damage a building and deserve punishment, but we are not persuaded that in itself it reaches the threshold to be considered terrorism. Therein lies one difficulty with that definition.

As to the injection of the words "intimidation" or, coercion of a government or the public element", we consider those proposals to be undesirable. In most cases we think it would be unnecessary, as most terrorist acts are clearly done with the intention of causing fear or getting a government to change their policy on a particular issue. But cases could occur where it might not be obvious whether that was the case—for example, the bombing of an animal laboratory at night. In those circumstances it could not necessarily be safely argued that that was done to intimidate the public, as they would not be present; nor could it be safely argued that the intention was to coerce the government as the primary focus. Presumably, it would be to disrupt the work of the laboratory and the related commercial concern. Yet we would take the view that such actions are forms of terrorism. Similar considerations might apply in connection with a terrorist assassination attack. Depending on the victim, it might again be unsafe to assume that the intention was to intimidate the public, or government. Again, the target might be a commercial concern.

We presume that subsection (2)(a) is designed to catch interference with computer systems. But the formula "electronic systems" is very broad and would probably catch other systems perhaps not meant to fall within the ambit of the definition—for instance, CCTV systems or possibly even a public address system.

We recognise the concerns that underlie this amendment, particularly in the wake of the recent so-called "Love Bug". Subsection (1)(c) of Clause 1 is designed to cover any action (including, therefore, any computer-related action) which creates a serious risk to the health or safety of the public. The Bill already covers the effects of some computer interference, but to go further and catch all computer interference would be a significant step which we would not take lightly and it would not be without its difficulties. Having said that, clearly this is an important issue, and I should like to reflect further on whether something more specific is required in the Bill. I shall advise the House of the outcome of our deliberations at Report stage. The noble Lord raises an important and significant issue.

The amendment provides in subsection (2)(c) that "violence" includes personal injury. We believe that that is also unnecessary as "violence" carries within it the concept of personal injury. Although it is ultimately a matter for the courts, we expect so-called punishment beatings to be caught by the phrase "serious violence". It is certainly not our intention to exclude such actions by raising the threshold to serious violence. The Committee will note that we have a number of concerns about this amendment. I hope that the noble Lord will reflect on the points that I have made and not press his amendment.

I turn next to the amendment tabled by the noble Lord, Lord Goodhart, and in so doing I shall pick up some of the observations of the noble Lord, Lord Beaumont of Whitley. At this stage the Government are not attracted by the amendment tabled by the noble Lord and his noble friends. We believe that the insertion of the term "unlawful" is an undesirable addition. We accept that the vast majority of terrorist acts are also unlawful: clearly, bombings, shootings and so on are criminal activities. Terrorists are criminals. But we can conceive of circumstances in which an act occurs, or even violence under the noble Lord's definition, that may not be unlawful. We believe that the definition would extend also to those acts. For example, given that the noble Lord's definition of "violence" includes interference with the functioning of electronic equipment, it is hypothetically possible that an employee may interfere with CCTV cameras, or even computers (with which we believe that part of the amendment is concerned). Depending on the employee's role in the firm and the nature of the interference, it is conceivable that that action may not be unlawful.

Take the example of subsection (1)(c) which deals with actions—under Clause 120 they include omissions—which create a serious risk to the health or safety of the public. An employee may deliberately omit to add a chemical to the sewerage system with the effect that public health is put at risk. Depending on the nature of his action and contract, that act may not be unlawful. We believe that it is wrong to create a situation in which a terrorist might escape prosecution on what would effectively be a technicality.

Lord Goodhart

How does the Minister deal with the Kosovo problem? In that situation the Government and many members of the Armed Forces would be engaged in acts which, technically, would come within the definition of terrorism in this Bill?

Lord Bassam of Brighton

That is a useful issue to raise. Understatement always helps! Obviously, this is a matter to which we have given careful consideration. We do not believe that those actions come within the definition.

Lord Cope of Berkeley

The Kosovo problem, as it has been described, is a very real one. The noble Lord will recall that in my speech at Second Reading I referred to remarks made by my right honourable friend Tom King in another place in the course of debates on this Bill. My right honourable friend pointed out that during the Gulf war, when he was Secretary of State for Defence, he launched considerable violence, in the form of marine commandos and a number of extremely fierce aircraft, against other people. He believed that as Secretary of State for Defence he and those in the RAF and Royal Marines engaged in that action were involved in serious violence which was intended to coerce governments and so on. It seems to me, as it did to my right honourable friend, that that is an extremely serious problem. It may be that the Minister has had time to reflect on it a little further and is now able to make a contribution to this particular difficulty.

Lord Bassam of Brighton

The noble Lord is very helpful. I said that I did not believe that our Armed Forces acting in the course of their duties would fall within the definition. The general principle in law is that statutes do not bind the Crown, unless by express provision or necessary implication. That covers the military and others in the service of the Crown. With one minor and fairly technical exception in Clause 118, the offences in the Terrorism Bill do not apply to Crown servants. I believe that that little difficulty is dealt with.

Lord Avebury

Perhaps I may pursue the matter a little further. The noble Lord assumes that the example of Kosovo is the only one where the lawfulness of the action is called into question. In English law there is the doctrine of necessity which was invoked in a case involving the hijacking of an aircraft of Sudan Airways. Although on the surface it was an act of terrorism, the defendants pleaded—I believe that the matter was successfully referred back to the House of Lords—that the appalling conditions in Iraq had caused them to take the step of hijacking the aircraft which allowed them to come to London. That defence was given serious consideration in the Court of Appeal and referred back to the House of Lords. If a person argued that he acted through "duress of circumstances"—that was the expression used by the Court of Appeal—according to the doctrine of necessity he would be acting lawfully. That set of circumstances is not taken into consideration in the definition.

Lord Bassam of Brighton

I am not a lawyer, but I suspect that that might be a defence in any future case. It is hard to foresee those circumstances. I understand and appreciate the virtue of the doctrine of necessity, and why it is argued, but the case that the noble Lord describes is effectively a situation of war. In those circumstances I believe that rather different rules apply.

Lord Cope of Berkeley

The Minister suggested that Clause 118, which exempts Crown servants, might assist in this process. That clause refers entirely to Parts III and IV of the Bill and provides that, The Secretary of State may make regulations providing for sections 15 to 23 and 39 to apply to persons in the public service of the Crown". The only provision that provides an exemption is in Clause 19. That is extremely limited and is concerned with the disclosure of information to do with financial offences. I do not believe that Clause 118 provides any assistance to the noble Lord in this particular case.

Lord Bassam of Brighton

As to that issue, my understanding is that it is the only provision in the Bill which does not cover the normal rule. The important point is that it is an exception clause.

If the point of the noble Lord's amendment is to try to ensure that action taken in connection with a legitimate trade dispute is not caught, we are not sure that the amendment does the trick in any case. The term "unlawful" also covers torts and breaches of contract as well as criminal acts, and strikers can commit such acts in the course of industrial action. Indeed, they may also commit criminal offences such as obstructing the highway. So not only could the amendment prove to be overly restrictive, it might not fully achieve what it sets out to do.

We are also concerned that the definition proposed by the noble Lord, Lord Goodhart, is triggered where violence is directed against the public or a section of the public. I am aware that the limbs at (a) and (b) of the definition provide that this phrase covers circumstances where death, serious injury or a threat to the health of the public is caused, or where there is a threat to national security, public safety or the economic well-being of the country. I have to say to noble Lords that at the very least such an approach puts an enormous strain on the phrase "directed against the public". I can think of examples of acts which would be caught through the limbs at (a) and (b) but which would in no ordinary sense of' the phrase he directed against the public—for instance, the assassination of an individual politician, or something like the bombing of the Grand Hotel during the Conservative Party conference. In both cases the Government would be more obviously the target than the public. Moreover, the way the formula is constructed means, I think, that other actions are excluded which the public might be more likely to feel were directed against them or at least actions which more directly affected them. I am thinking here of actions, for instance, against furriers, or sporting events like the Grand National. The bombing or a serious attack on such interests could impact more directly on some sections of the public than some of the actions caught by the formula as it stands. But they are not caught as I read it. We consider this to be a fairly fundamental weakness.

The amendment also provides that all interference with the functioning of electronic equipment, even if no damage is caused to the equipment, is caught within the definition, although the ensuing limbs at (a) and (b) limit the circumstances in which it applies. The formula chosen is very wide and may catch activity that it is not intended to catch—for instance, tampering with CCTV cameras. And we are not sure that the syntax of the amendment quite works here. However, setting aside those essentially technical points, as I indicated, we have considerable sympathy with the concerns underlying the proposal. Recent events have demonstrated the effect that computer viruses can have on a whole range of interests and systems.

More fundamentally, we have significant concerns about the ground covered by limbs (a) and (b) of the amendment. In particular, we are concerned that it is too narrow. As I have already touched upon, our reading is that bombs or other attacks which seriously damaged, or even destroyed, commercial or private interests would not be caught within this definition if there were no risk to life or the health of the public, or if there were no threat to national security, public safety or the economic well-being of the country or part of the country. I think that such a distinction is wrong in policy terms because bombs or other attacks which destroy animal laboratories, synagogues or symbolic buildings such as perhaps Stormont should be caught even if the perpetrators undertake the attacks carefully at night so that there is no serious risk to life. To me, and I think to many others, such attacks would constitute terrorism but the definition in the amendment would not necessarily cover them.

I also think that this part of the amendment is wrong on pragmatic grounds. As we have already observed, one of the main purposes of the definition is to indicate when anti-terrorist powers may be used. The police view is that it could seriously hinder their operational effectiveness in combating terrorism if they could only use their powers once they were persuaded that there was a risk to life or the equivalent. Valuable time could be lost before sufficient intelligence or evidence emerged to confirm that life was likely to be threatened and the police ability to respond would be reduced accordingly. There is no reason, we believe, in policy terms why a distinction should be drawn between actions which seriously damage property and those which injure people and we believe that creating such a distinction could have serious operational consequences for the police.

A number of points were raised by Members of the Committee. The noble Lord, Lord Cope, referred to the G8 meeting in Paris on computer crime. I understand that that is part of a regular meeting of a high-tech crime sub-group of the G8 countries on transnational organised crime. Its focus suggests that it is organised crime rather than just terrorism but improvements for international co-operation in this area may have considerably wider benefits.

I shall have to write to my noble friend Lord Taylor of Gryfe on the specific case he raised. I was grateful to my noble friend for his contribution on the definitions of terrorism at international level. The Scottish case is interesting. The Government are satisfied that their possession of nuclear weapons is entirely consistent with international law. There can surely be no dispute that damaging computers on a submarine should be capable of being caught by the criminal law. The question as regards computers is an important issue.

I hope that I have covered the points raised. If I have missed something, no doubt noble Lords will not hesitate to mention it. I shall be happy to take their points further if I can.

6.30 p.m.

Lord Avebury

I apologise for troubling the Minister again, but I asked him to consider the compatibility of the definition in Clause 1 with that of a terrorist act overseas in Clause 59(2)(e) which limits the damage to property to an offence under Section 1(2) of the Criminal Damage Act 1971, endangering life by damaging property.

Why should the definition of the damage to property be more limited in terrorist acts overseas than domestically? What is the Government's reason for having a different definition of terrorism according to where the act is committed?

Lord Bassam of Brighton

I am grateful to the noble Lord for his sharp reading of the Bill. I do not think that one definition counters another. However, I shall study the provision more closely and, if possible, deal with it at greater length.

Lord Lester of Herne Hill

The Minister may wish to reflect on this. The answer to my noble friend may be that in Clause 59 the offence is predicated upon inciting another person, to commit an act of terrorism wholly or partly outside the United Kingdom, and … the act would, if committed in England and Wales, constitute one of the offences listed in subsection (2)". The whole premise is that it is an act of terrorism within the definition in Clause 1. Therefore the definition does not seem wider in respect of an act committed overseas than an act committed in this country. I do not know whether the Minister has a view on that.

Lord Bassam of Brighton

The noble Lord has the benefit of being a noble and learned Lord. I suspect that his interpretation is right. That was my understanding and reading of the relationship between those two clauses.

Lord Skelmersdale

I am sure the whole Committee was enormously encouraged when about two minutes into his speech, the Minister went into what I call "Fagin" mode, saying that "he thinks he'd better think it out again". After the debate on the various definitions in Clause 11 am sure he is right to do so.

However, from that point on his speech degenerated somewhat. He started to chip away at the various arguments advanced. I do not mind that because presumably he was setting his own parameters as to what he would or would not consider. That is fair enough. However, he made two remarks which somewhat surprised me: first, that in his view graffiti would not be violence against property; and, secondly, that the bombing of an animal laboratory at night might well come into the same category. However, although no one has yet referred to it, subsection (3) of Clause 1 states: In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation". Therefore, were the two cases exemplified by the Minister to be committed by members of, or in furtherance of, a proscribed organisation they would come automatically under the Bill's classification of terrorism. Therefore, in his Fagin mode, which he says he will go into, will he be good enough to consider the effects of subsection (3) on any consideration that he gives to subsections (1) and (2)?

Lord Hylton

Before the Minister replies to that, he twice mentioned the bombing of animal laboratories by night so as not to cause human casualties. I believe that he mentioned that in defence of the Government's definition. Will he accept that such actions could be properly dealt with under statutes concerned with causing explosions, arson or criminal damage? Those were the types of issue that I had in mind when I argued at Second Reading that the Bill goes unnecessarily wide.

Lord Bassam of Brighton

I hope that I conveyed the impression to the Committee that we as a government have a fairly fixed view of what the definition should be, that that view is reflected in the Bill as it stands, but that, of course, we need to listen, as we always do, to the important points that are made in a debate such as this. No doubt many noble Lords are much better at definition than I am, particularly as I am a non-lawyer.

Particularly in respect of the amendments of the noble Lord, Lord Cope, I have indicated that we shall look very closely at the issue of computers and whether or not they need to be enclosed specifically within the definition that we have chosen. Of course, I undertake to reflect on all the various points made by Members of the Committee in the debate.

The noble Lord, Lord Hylton, again asked a question that he raised at Second Reading, and I believe that it bears some respect. In his contribution the noble Lord challenged me to look again at the relationship between Clause 3 and the other clauses with regard to the definition. I shall give further thought to that.

I return to my point about graffiti. Although it is certainly unpleasant and unsightly, I cannot think of any circumstances, certainly as we consider the matter this evening, in which one might consider it to be a form of terrorism. However, of course, we must all take serious note of the damage and distress that it causes. In effect, in many instances it is a form of criminal damage.

This has been a useful debate. I believe that it was the noble Lord, Lord Beaumont of Whitley, who said that he hoped that the debate would help us to focus down rather more when we come to consider the definition at Report stage. I suspect that that is what we shall be able to do. As I said, after giving further thought to the matter, I shall come back to the issue of computers and their place in any subsequent definition. Of course, I shall look carefully at the various points that have been made during the course of this useful debate.

6.45 p.m.

Lord Cope of Berkeley

I was happier with the Minister when he said that it was a thought-provoking debate and that he would give consideration to this and that than when he said to my noble friend Lord Skelmersdale that the Government had a fixed view of what the definition should be. I hope that we have indeed succeeded in provoking thought on a number of the issues raised. I believe it is certain that we shall return to them later.

I hope that Members of the Committee will forgive me if I refer back to some of the points. I was attracted by the use of the word "unlawful", as supported by the Liberal Democrats' amendment and in their speeches, because of what was described as the "Kosovo problem". It seems to me that that is one area where further thought needs to be given.

However, the Minister also had my support when he talked about assassination. As I see it, one of the difficulties with the Liberal Democrat amendment is that it refers only to attacks on the public or a section of the public. I do not believe that one person can be a section of the public. During the time—

Lord Goodhart

I am grateful to the noble Lord, Lord Cope, for raising that point. I believe that that is a fair criticism of our definition. If we are to bring back this matter on Report, it certainly needs to be looked at again to ensure that it covers that point.

Lord Cope of Berkeley

I was about to say that during my time as a Member of another place, four Members of Parliament were murdered by the IRA; three of them in individual assassinations, as noble Lords will recall, and one at the Grand Hotel in Brighton. Those specific assassinations were, by anyone's definition, designed absolutely for terrorist purposes.

So far as concerns the bombing of the Grand Hotel, it seems to me that that was an attack on a section of the public. The Minister seemed to suggest that it was not. It was an attack not only on members of the government and Members of Parliament, but much of the damage and several of the deaths were inflicted on people who were either supporters of the Conservative Party, attending the conference or looking after the hotel. Many of the people involved were not members of the Conservative Party but were involved in other ways with the conference. It is obviously extremely important to include an action of that kind.

Some attention has been given in the debate to the question of whether damage to property should be included in the definition only if it endangers life and not if it simply damages property. As most Members of the Committee know, on a large number of occasions property in Northern Ireland has been damaged but there has been no loss of life or injury to people because warnings have been given with the deliberate intention of permitting the building in question to be cleared. Nevertheless, the action has been terrorist in purpose and it has been applied by both sides. I do not make a partisan point, as it were, in the Northern Ireland context in drawing attention to that point.

Other terrorist actions, such as letting off bombs or firing guns in the course of training, obviously do not hurt anyone. They take place deliberately in the most remote spot possible in order that terrorists may refine their weapons, for example, mortars, and so on, and refine their techniques in using those weapons. Those are definitely terrorist actions in anyone's book and should, I believe, be covered in this case.

Therefore, I believe that a considerable amount of serious damage to property takes place which nevertheless does not kill or injure people and, in fact, is not intended to do so. Of course, from time to time people have been injured or killed as a result of action which was not intended to injure or kill but did so because the warning was insufficiently specific or because of other reasons.

The noble Lord, Lord Avebury, mentioned the recent daubing of the statue of Sir Winston Churchill. Quite frankly, that does not seem to me to be covered by any of the definitions on offer this afternoon; nor should it be. It was, of course, highly offensive and misguided and no doubt constituted criminal damage. However, that is different from saying that it should be covered within the definition of terrorism.

In talking about electronic systems, the Minister seemed to dismiss an attack on closed circuit television systems, which are included in the definition that I have put forward of electronic systems, but are not in some of the other definitions that are available. I am sure that some Members of the Committee realise that in Northern Ireland closed circuit television has been an absolutely vital protection against attack. Every police station in Northern Ireland has elaborate systems to monitor, for example, car parks and other areas to ensure that the police are aware if a mortar is placed in a position from which it could be fired at a police station. To damage a closed circuit television system of that kind is a terrorist act.

Lord Bassam of Brighton

I want to seek some clarification. Is it the noble Lord's intention to include CCTV systems with that amendment? Was that a deliberate intention in moving the amendment because that is something extra to the way in which we originally understood it?

Lord Cope of Berkeley

I think that all these electronic systems can be the subject of terrorist attack. I do not think it is simply confined to computer systems. One has to be careful because nowadays television systems are controlled by computers. More or less every electronic system, including motor cars and all sorts of things, are controlled by chips and computers and so on. A reference to computers probably covers most of those things as well.

There are also computers containing police intelligence which is an extremely important point. There was a big attack on the forensic science laboratory in Northern Ireland while I was a Minister there. That is an example of trying to attack those who are dealing with terrorism, making their lives much more difficult and their efforts less effective.

There is the big point, as I described it at the start, of whether or not the phrase "in some form" of intimidating and coercing the government, the public or any section of the public should be included, and whether the concept of fear should be included. The Minister said in his comments that they started by building on the Protection against Terrorism Act, a definition of putting the public in fear, but what they have done in this definition is to take out the concept of putting the public in fear. There are different ways in which one can express it. They have taken out the concept from the definition. That is something about which I think the Minister and his colleagues should reflect very carefully in the course of further consideration of this definition. It is a very important definition, as we have all agreed. It is a very difficult definition, as we have all agreed. We are all agreed also that we want, if possible, to have an agreed definition that will fulfil the desires which all of us share to a fair degree.

This has been an important debate and we look forward to hearing the results of the Minister's reflections. I will certainly be reflecting further on the issues that have been discussed and the points made. I beg leave to withdraw Amendment No. 1.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Dean of Harptree)

I should point out to the Committee that if this amendment is agreed to, I cannot call Amendment No. 3.

Lord Cope of Berkeley moved Amendment No. 2: Page 1, line 7, after ("threat,") insert ("of action which is, or appears to be,").

The noble Lord said: This is a much smaller point. The Captain of the Gentleman at Arms will he pleased to know that progress is likely to be a little swifter on the remaining amendments to be considered today.

The point occurred to me in discussing this Bill and its terms that there are sometimes actions—there were some bombs in London not so long ago of this character—which look like terrorist actions when they happen. Therefore, the police go into anti-terrorist mode. They use some of the powers incorporated in this Bill. It may subsequently turn out that these were not terrorist actions but actions of some kind of criminal nut, as it were, in which case it may be that the actions taken by the police which probably led to the arrest of the person concerned, might be invalidated by it being shown that this was not a terrorist action and the police were not entitled, in retrospect, to take the action that they did. That is why the suggestion is made in Amendment No. 2 that action which appears to be terrorist action should, nevertheless, be able to be followed by a police cordon and all the other powers which come later in the Bill.

I realise that this could give rise to the use of the antiterrorist powers and the anti-terrorist police operations when they are proved ultimately not to be necessary. At the same time I would not want to invalidate the prosecution of someone who is not a terrorist, but who, nevertheless, let off bombs or took some action which appeared, in the first instance, to be a terrorist action. It is quite a small point but not without its own importance. I beg to move.

Lord Bassam of Brighton

I suspect that we have all been making faster progress.

I am grateful to the noble Lord for his explanation. He has clarified the meaning of the amendment. It would appear to us that it is an action designed to be covered in his "definitional" thinking for the purpose of advancing a political, religious or ideological cause where a judgment has to be made.

We have some sympathy with the spirit behind the amendment which we take to ensure that police and others can be confident that they can act even if they are not 100 per cent sure whether a qualifying motivation is present as long as such motivation appears to be present. I trust that is the right understanding of the proposal.

Lord Cope of Berkeley


Lord Bassam of Brighton

It is important that the police are not needlessly deterred from acting to combat terrorism. However, we believe on reflection that the amendment is unnecessary. As we see it, provided the police are able to advance a reasonable case for their belief that a qualifying motive was present this should he sufficient. The fact that there have been no difficulties to the application of the current definition, which does speak of the use of violence for political ends without qualification, underlines that there may not be a difficulty in practice. I think we should rely on that.

Furthermore, I am concerned that inserting the concept of "appears" into the definition might give rise to uncertainty and drafting difficulties. I ask the question: how would it work in the context of the terrorist property provisions where the test might then be whether the funds in question were being used for the purposes of an action which is or appears to be done to advance a political, religious or ideological cause? We think that there could be difficulties in applying the "appears to" concept in the context of the decision about the proscription of groups.

I am not persuaded that the approach proposed by the noble Lord in his amendment, which I am sure was intended to be helpful, would work in all the contexts linked into the definition of the Bill.

I hope that on the basis of that explanation the noble Lord will consider withdrawing his amendment.

Lord Lester of Herne Hill

Does the noble Lord agree with me that Part V of the Bill dealing with counter-terrorist powers gives necessary latitude because, for example, in Clause 41 it provides: A constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist. Similarly, a magistrate under Clause 42 may— issue a warrant … if satisfied that there are reasonable grounds for suspecting … and so on. Is not the point made by the Minister buttressed by Part V, making this amendment unnecessary?

Lord Bassam of Brighton

The noble Lord, as ever, has been very helpful. My understanding of those clauses is that they do provide that necessary flexibility. In a sense, that is what we require in the operation of this part of the legislation. I think that there will be common consent and agreement around the House to that point.

Lord Cope of Berkeley

One always learns something in this House in the course of these debates. I will certainly reflect on what has been said on this amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7 p.m.

[Amendments Nos. 3 to 9 not moved.]

Lord Cope of Berkeley moved Amendment No. 10: Page 1, line 14, at end insert ("except in countries with which the United Kingdom is at war,").

The noble Lord said: This amendment is moved to deal with the Kosovo or Gulf War problem or however one likes to describe it. Most of us agreed in the course of the earlier debate that there is a problem in this regard in relation to what happens when there are countries to which the United Kingdom is antagonistic, is at war, or some other definition—mine is not perfect—and there are also groups in this country which may be supporting the opposition in the country concerned. One can think of numerous examples, all the way from the French Resistance and so on and the operations of the SOE and others right the way up to much more recent examples.

There is a problem. My amendment does not solve it entirely. But it raises the problem and it is at least a step in the right direction. Of course, we could rely on the designation of countries as either good or bad, as it were—if that is not too "cartoon" a way of expressing it—by the Secretary of State. That is not a very good way of dealing with the matter. But we certainly could do that. I have tried to introduce a more objective way of expressing the matter in Amendment No. 10. It is an important point on which, I believe, the Minister is already going to reflect as a result of our earlier discussions. I certainly think he should do so. Meanwhile, I beg to move.

Lord Monson

The noble Lord, Lord Cope, mentioned the Kosovo problem. But is it not the case that the United Kingdom was never formally at war with Serbia?

Lord Cope of Berkeley

That is one reason why I am not sure that my definition is entirely satisfactory.

Lord Beaumont of Whitley

This is a very difficult series of points. I did not move my Amendment No. 9 because I thought that it might be better to raise the issue in the rather wider context of the amendment of the noble Lord, Lord Cope. It goes back further than the noble Lord suggested. Members of the Committee on the Liberal Benches will remember that Mr Campbell-Bannerman asked the very pertinent question, "When is a war not a war?" in his famous speech at the Guildhall. He answered by saying, "When it is waged by methods of barbarism". A whole can of worms is being opened here in relation to how much we should apply to these matters when war is either declared or has not been declared.

To a certain extent, where war has been declared, we are governed by the Geneva Conventions. But it is important that the law of the land states what should be done under most conceivable circumstances and I look forward to hearing what the Government have to say. I certainly look forward to arriving at something rather more satisfactory by Report stage.

Lord Bach

As Amendment No. 9 was not moved by the noble Lord, Lord Beaumont, I can considerably shorten my reply to this group of amendments. I deal solely with Amendment No. 10 in the name of the noble Lord, Lord Cope of Berkeley. Indeed, some of what I have to say was mentioned by my noble friend Lord Bassam in reply to the long debate on the first group of amendments.

The Government are right in assuming that the intention behind the amendment—indeed, it has been made clear by the noble Lord, Lord Cope of Berkeley—is to ensure that the Bill does not cover the legitimate acts of our Armed Forces and those supporting them in times of war. We believe that we can offer strong reassurance as to that.

First, as a general principle, we believe that it would be difficult to reach the conclusion that our Armed Forces, when acting in the course of their duties in an armed conflict, could be held to come within the definition of terrorism in the Bill. Taking it further, I repeat now the general principle in law that statutes do not bind the Crown unless by express provision or necessary implication. Of course, the Crown covers the military as well as others in the service of the Crown.

In this Bill, there is one minor and fairly technical exception in Clause 118, which has already been referred to. Apart from that, the offences in the Terrorism Bill will not apply to Crown servants and, therefore, would not affect our troops at a time of war. Those are my general comments on the amendment.

Lord Goodhart

I am grateful to the noble Lord for giving way. While I can see that the Bill may not apply to Crown servants on the grounds that they are entitled to Crown exemption, it would potentially apply (would it not?) to members of the armed forces of France or the US.

Lord Bach

I shall now have to go back to part of the answer which I thought I could get away with not giving because of the noble Lord, Lord Beaumont, not moving his Amendment No. 9. I shall return to that before I sit down.

I deal with the difficulties of the wording of the amendment in the name of the noble Lord, Lord Cope of Berkeley. First, as it stands, it would not just cover our Armed Forces but would also exempt from prosecution in courts in the United Kingdom any terrorist act committed in a state with which we were engaged in armed conflict. That would cut across our international obligations, particularly the Terrorist Bombing Convention, to submit for prosecution any alleged terrorists in the UK whom we do not extradite for prosecution elsewhere.

We believe that two other technical defects have been identified. We no longer speak of war but rather of armed conflict. That is a very minor point. Another is that the terms in which the amendment has been drafted means that it is not clear whether the act would have to be committed during the conflict or whether the exception could be back-dated to apply to an act committed before the conflict began.

I accept at once that those last two points are genuinely technical. The real point behind the noble Lord's amendment is understood. However, we believe that we have answered that by the Crown not being bound and also that it is difficult to conclude that our Armed Forces could, when acting in the course of their duties, be held to come within the definition of terrorism.

I deal now with the point made by the noble Lord, Lord Goodhart; in other words, that allied forces might be liable under the Bill. The position there is really linked with that difficult issue of freedom fighter or terrorist.

Without going into the full arguments as far as that is concerned, that brings us up against potentially hard cases. Where significant proportions of the population have sympathy with the objectives pursued by, for example, our allies, we could not say, under the definition of terrorism in the Bill, that offences were not being committed. It may well be that offences are being committed.

We do not believe that the intention behind the acts, however worthy or understandable, would somehow make those unlawful acts lawful; how could they? But we recognise that in certain cases—this really would be our line—there are public interest considerations that should be borne in mind in considering whether prosecution should ever be started or continued.

Before the noble Lord comes in on that point, perhaps I may say that I am speaking more about organisations in foreign countries that commit acts which, while being terrorist acts by the standards of the Bill, are acts which may well have some support in this country, than I am, perhaps, about, for example, allied troops. However, the same might apply. There is a future debate to be had on who should decide on the prosecution; whether it should be the Director of Public Prosecutions or the Attorney-General. I hope Members of the Committee will listen carefully when I say that we are considering that matter with care before we reach the necessary amendments. We are considering it sympathetically in terms of it being the Attorney-General. I make no commitment, but that is an issue to which we will come in due course.

Lord Lester of Herne Hill

I am grateful to the Minister. I was about to raise that very point. I seem to recall the right honourable Douglas Hogg in another place focusing on the fact that many of the bombing acts of the ANC in the mid-1980s fall within this definition. We are dealing with a highly political public interest choice which has to be made.

May I take it, without any commitment on the part of the Government, that when we come to Amendment No. 176 tabled in my name and that of my noble friend Lord Goodhart, which indicates that the Attorney-General is the right public officer to make that public interest decision rather than the Director of Public Prosecutions, that this might be a way forward, rather than tampering with definitions and trying to grasp an amoeba, which is difficult? This is not the sort of matter which one would normally leave to the Attorney-General to decide upon in the public interest.

Lord Bach

I shall not go into the interesting debate that no doubt we shall have on that amendment. I have said, and I stand by it, that we will look sympathetically at the terms of that amendment. I hope that will satisfy the noble Lord for today.

In attempting to answer the point raised by the noble Lord, Lord Goodhart, I raise these matters because they are relevant. However, they are perhaps best covered by repeating what I said: it would be hard to conclude that our Armed Forces—perhaps it could even read "our allies' armed forces"—when acting in the course of their duties in an armed conflict, could be held to come within the definition of terrorism in the Bill. That is the other limb upon which it could be argued that the issue raised by the noble Lord may not be such an issue in practice as it is in theory.

However, I have gone off the track to answer the nobne Lord, Lord Goodhart. I believe my noble friend may have a searching question.

7.15 p.m.

Lord Goldsmith

I am not sure that it is searching, and I IN as not sure of the moment to raise it. I wonder whether, in the view of my noble friend the Minister, there is an additional problem posed by the amendment tabled by the noble Lord, Lord Cope. The amendment focuses on the place where the action is taken, whereas I believe what he had in mind was the question of against whom the action is directed. As it stands, the amendment, if passed, would prevent it being terrorism if people took action in a country with which we were at war but which was directed at our own citizens, for example. I suggest that that is not what the Act had in mind. That was the question I was thinking about asking when my noble friend the Minister suggested I should rise.

Lord Bach

I shall think about replying to it, and I shall put it to the noble Lord, Lord Cope. There is a final word I should like to say in response to the noble Lord, Lord Goodhart. We do not think the definition covers any lawful action in armed conflict. It really is unlikely that a court would call the actions to which he referred terrorism; but it may be even at a stage before that. Then, obviously no prosecution would take place.

I hope that I have satisfied the noble Lord, Lord Cope, with my answer to his amendment. We do not think that the amendment is necessary. We do not think that there is any danger in the real world of our Armed Forces finding themselves liable under the Bill.

Lord Avebury

I am sure that the Committee will be relieved to hear that there is not any danger that members of the Armed Forces would be liable to prosecution under the provisions of the Bill.

The Minister reminded us that we no longer speak about being at war but about being in a conflict situation. In my mind that raises the question of what happens in the countries where we are engaged in either peacekeeping or peace supporting operations. A particular example that springs to mind at present is that of our forces in Sierra Leone. According to what the Minister told the Committee, nothing that our forces do in Sierra Leone could possibly be the subject of proceedings under the Bill.

In answer to my noble friend Lord Goodhart, he also stated that he thought the consent of the Attorney-General or whoever it may be, to a prosecution, would mean that acts committed by forces allied to the United Kingdom would also not be subject to prosecution under the Bill. Therefore, the Bangladeshis or the Indians, for instance, who are serving with the UNAMSIL forces in Sierra Leone would be able to engage in armed acts against the rebel RUF without there being any threat of prosecution.

In my mind that raises the possibility of the extension of the United Kingdom's jurisdiction to acts committed by the terrorist organisations. Are we saying that if, for instance, Mr Foday Sankoh, the leader of the RUF, set foot in the United Kingdom we could bring proceedings against him under the Bill, or that any armed opposition to a government, whether in Sierra Leone or any other part of the world, which is committing acts specified in Clause I would render itself liable to jurisdiction in this country?

If that is what we are saying, the Bill represents a large extension of our extra-territorial jurisdiction. The Attorney-General recently reaffirmed to me that that was not the intention of the Government. He said that we still maintain that any extension of extra-territorial jurisdiction would have to be justified on the same criteria as were contained in the assessment by the Home Office of extra-territorial jurisdiction which was produced, I believe, in the summer before this Government came into office. They relied on that when I introduced a Bill in this House to extend our jurisdiction to acts committed under common Article 3 of the Geneva Conventions, which at the time the Government opposed.

In a recent answer to me in a letter, the Attorney-General stated that it was now the intention of the Government, when they come to legislate on the international communal courts statute to take powers to criminalise Article 3 acts. I welcome that and I am very pleased that they have come round to my point of view.

However, here we are under this Bill embarking on an enormous extension of extra-territorial jurisdiction and there has been no discussion at all, as far as I am aware, on the principle of the matter. They have departed from the policy of both this Government hitherto and their predecessors in office. I think that requires an examination by your Lordships at this stage. This will be the only opportunity that we have of doing so.

Lord Bach

I do not want disappoint the noble Lord, but I have really little to say about this. The definition of terrorism in Clause 1 of course does not create an offence in itself. The Bill creates offences further on, and we will come to those in due course. At the moment I certainly do not want to talk about the situation in Sierra Leone: that is not what I am briefed to do and I think it would be unfortunate if I were to do so. Obviously any person, whoever it may be, has to commit an offence under this Bill to be caught.

The Bill has tidied up the previous position under the two Acts, so that the definition of terrorism applies to acts that take place anywhere in the world. However, it is of course vital that if we are to prosecute anyone it would have to be in regard to offences created by this Bill. I will leave the point there.

Lord Cope of Berkeley

Not for the first time, I am glad that I did not make exaggerated claims for the drafting of this particular amendment, Amendment No. 10, particularly in the light of what the noble Lord, Lord Goldsmith, had to say a few moments ago. I think that the noble Lord the Minister has got out of the "armed forces" difficulty. He has explained the solution to that. However, I am less clear about the position of other civilians who might be involved. I am not sure whether their position is as clear.

He referred a moment ago to the definition having been "tidied up" by its extension to anywhere in the world. If I may say so, I think that it is rather more than a mere "tidying up", but I do not think I need to pursue that at this moment. It is clear that we shall return later to this general point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 11 and 12 not moved.]

Clause 1 agreed to.

Clause 2 [Temporary legislation]:

Lord Skelmersdale

I am not sure whether I am the only Member of the Committee who finds the drafting of this particular Bill incredibly difficult. On the face of it, Clause 2 says that the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Northern Ireland (Emergency Provisions) Act 1996 shall cease to have effect. That is backed up by, I think, Schedule 16 much later in the Bill. Then one goes on to read about Schedule 1, which the Committee is just about to study, which concerns the Northern Ireland (Emergency Provisions) Act: that is a partial continuance schedule. One can readily understand that. It flows, as it were, in a logical sequence.

However, one discovers on further reading of the Bill that the 1989 Act itself is not abandoned at all. For example, it creeps into Clause 128, and some of the definitions and procedures in that temporary provisions Act appear in other clauses in this Bill. Would not this Bill, when passed into law, have been far simpler and easier to read by lawyers and others had the appropriate parts of Clause 128 been made into a schedule, to go between Schedules 1 and 2?

I may have been a little indulgent in speaking about this now but, with a bit of luck, the answers I hope to be given will mean that I need not move my amendments to Clause 11, and that will save time.

Lord Hylton

I am grateful to the noble Lord, Lord Skelmersdale, because I think this is more than just a drafting point. The Northern Ireland Human Rights Commission, which I mentioned earlier, has stated its belief that there is no need for this provision—that is Clause 2—given the powers contained in Part VII of this Bill. It goes on to say that it believes the EPA should be repealed and not replaced. I hope the Government will give that some serious thought.

Lord Bach

Let me say first of all what Clause 2 intends to do. It has two purposes. First, it repeals the PTA and the EPA, whose provisions are due to be replaced by this Bill. Secondly, it gives effect to Schedule 1, which we shall come on to in a moment, to continue in force the EPA, with some amendments, until the provisions of the Bill are brought into force: in other words, they are transitional essentials. This is an essential transitional proposal for Northern Ireland.

The current EPA would expire on the 24th August this year. Unless it is continued by Clause 2 there will be a gap between those provisions expiring and the coming into force of the Terrorism Bill. It is not practical to assume that the Bill's provisions could be commenced at Royal Assent, given, for example, the need for the police to familiarise themselves with the new powers and procedures. As I say, the two Acts are repealed by Clause 2, but these transitional provisions are needed and they are set out in the clause to which the noble Lord refers, Clause 128. For example, they are needed where prosecution is begun under the PTA before the Act comes into force.

Lord Skelmersdale

Will the noble Lord give way? I am grateful to him. I was not complaining about the need, but about the way it has been done. In Clause 2 there is a cross-reference, quite rightly, to Schedule 1, but again there is no cross-reference, for example, to Clause 128, and the whole thing seems to me to be totally illogical.

Lord Bach

I am grateful to the noble Lord, who has a great deal of experience. We will look at that and come back on it, if we may.

Clause 2 agreed to.

Schedule 1 [Northern Ireland (Emergency Provisions) Act 1996]:

Lord Bach moved Amendment No. 13: Page 61, line 30, leave out ("the passing of this Act") and insert ("14th June 2000").

The noble Lord said: I should like to make it clear to the Committee that I did not intend to move this amendment and, with the leave of the Committee, I should like to explain why. This technical amendment was tabled to ensure that paragraph 1(1) of Schedule I achieved its aim of keeping alive the Northern Ireland (Emergency Provisions) Act during the transitional period between Royal Assent and the Bill's coming into force. It is very much a safeguard amendment which would be required only if the Bill received Royal Assent before 15th June, the date on which the current emergency provisions Act falls due for renewal. I am now conscious that I have given two quite separate dates for the date on which that Act has to be renewed. I will ensure that the Committee knows the right date before I sit down.

As your Lordships will realise, we have only just begun in this Committee to consider these very important provisions. While it would be wonderful to think that this Bill will become law by 15th June, we are realistic enough to realise that is not a very likely option. This amendment is therefore unnecessary and I am sorry to have troubled your Lordships with it. However, I beg to move.

Lord Skelmersdale

I am grateful to the noble Lord the Minister. Once an amendment has been spoken to in so many words, it really must be moved to allow a speaker to get in, should he or she want to, and question the Minister; otherwise the opportunity disappears for all time—or, if not for all time, at least until the next stage of the Bill—which is a pity.

The Minister went into all sorts of contortions explaining why he was not going to move the amendment, but the explanation seemed to me to revolve around it not being a feasible option to have the Bill on the statute book by 14th June or whatever the right date is or will be.

7.30 p.m.

Lord Bach

The renewal is due on 15th June. The expiry date will be 24th August.

Lord Skelmersdale

At least we have our dates sorted out. Nonetheless, the Minister's reason for saying he did not intend moving the amendment appeared to be the reason for tabling the amendment. So I was totally lost in his argument. I am all for having a date and I am all for having the right date, but it may be that the real reason is that in this amendment the date is wrong. Be that as it may, it would leave things to an enormous amount of chance to leave the words, the passing of this Act", where they are in the Bill. There must be a date of some sort.

Lord Lester of Herne Hill

Before the noble Lord sits down, does he agree that the Minister correctly explained to the Committee that there must not be a gap between the work we are now doing and the date when the new Act comes into force in relation to pending criminal proceedings? What is commendable about the Government's approach is that they are seeking to achieve certainty, but not in the way that one would do if this matter were not complicated, because it is complicated and one is trying to move from temporary to permanent legislation. Therefore, though I may not have drafted the whole of this Bill precisely in the way it has been drafted, the Minister's answer reassures us that there will not be a gap and that we will have complete certainty. In those circumstances we should not cavil about this.

Lord Skelmersdale

Cavilling or not, I am grateful to the noble Lord, Lord Lester of Herne Hill, for what he said in that short intervention. I agree that it is important that there should be no gap. I hope that the words in the Bill as unamended will ensure that; but I shall have to look carefully at what the Minister said because, from what I believe he said, I doubt that they will.

Lord Bach

The Government's view is that they will ensure exactly that. The noble Lord need not he too worried about this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendment No. 14: Page 62, line 38, after ("Lord Chancellor") insert ("by statutory instrument").

The noble Lord said: This is a drafting amendment to make clear that the Lord Chancellor's rules, referred to at paragraph 9(7)(a) of Schedule 1 are made by statutory instrument. The rules in question are made under the Northern Ireland Act 1998 and relate to the National Security Certificate Tribunal established under that Act. The Terrorism Bill brings within the remit of that tribunal appeals against national security certificates issued in appeals to the High Court against a refusal by the Secretary of State to grant a certificate to a person wishing to provide private security services in Northern Ireland. I beg to move.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Clause 3 [Proscription]:

Lord Cope of Berkeley moved Amendment No. 15: Page 2, line 16, leave out paragraph (c).

The noble Lord said: This amendment arises from a recommendation of the Select Committee on Delegated Powers and Deregulation, to whose recommendations this House always pays close attention.

In paragraph 15 of the committee's 12th report, which was its main report on this Bill among other matters, the committee draws attention to this matter and says that the House may wish to seek justification from the Minister for this "unusual" power. It is to seek further justification that I tabled this amendment.

On the face of it, it is a wide power to permit the Secretary of State to amend Schedule 2 "in some other way". That is expressed extremely widely. It is an Henry VIII power; that is, a power of secondary legislation to amend primary legislation, subject to the affirmative procedure. That is perfectly correct, and the Select Committee thought it correct also. Nevertheless, I feel that we should seek further justification for the use of this power. I beg to move.

Lord Bassam of Brighton

I am grateful to the noble Lord, Lord Cope, for flushing us out on this matter and I shall happily give an explanation.

Clause 3 provides the Secretary of State's power to proscribe and deproscribe organisations. As such, it is fundamental to the operation of Part II of the Bill. Amendment No. 15 cannot be accepted because the power which it would delete is necessary to the proper working of the proscription regime.

Proscribing and deproscribing organisations is normally done by adding organisations to or taking them away from Schedule 2. However, it is also necessary for the Secretary of State to be able to amend the schedule in some other way. The reason is that he may need to add, remove or amend a note such as is referred to in subsection (2) of Clause 3.

The use of notes in Schedule 2 is a drafting innovation, but is intended to achieve the same effect as the current legislation. In the Northern Ireland (Emergency Powers) Act 1996, the corresponding schedule includes an entry for, the organisation using the name 'The Orange Volunteers' and being the organisation in whose name a statement described as a press release was published on 14th October 1998". While the intention of that entry is clear enough, we felt that there was a risk of confusion and even some contradiction between it and the general principle now in Clause 3(1)(b); that is, if an organisation is proscribed, so are all other organisations operating under the same name. The approach taken by the Bill is therefore to explain the particular case of the Orange Volunteers by means of a note to Schedule 2 and, in Clause 3(2), to disapply the general principle in this particular case.

That is why it is important that the Secretary of State can not only add to and subtract from the schedule, but can also amend it in other ways. We do not expect that there will be much need to use the power in Clause 3(3)(c) since, as I have just said, it has its origin in what is very much a one-off case. Nevertheless, since the precedent has now been set, we see the Clause 3(3)(c) power as an essential part of the package. I hope therefore that the noble Lord will agree to withdraw his amendment on this point.

Lord Goodhart

As a member of the Delegated Powers and Deregulation Committee, we rather suspected that that might be the answer to why this provision was included in the Bill. The purposes for which it is proposed seem to be acceptable and it is not likely that the committee need have any further concern with this matter. But I am glad that that has been placed on the record.

Lord Cope of Berkeley

In view of the explanation given by the Minister and the remarks of the noble Lord, Lord Goodhart, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glentoran moved Amendment No. 16: Page 2, line 19, at end insert— ("(4A) The Secretary of State may exercise his power under subsection (3)(b) in respect of an organisation only if he believes that it is not currently concerned in terrorism.").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 17, which is a covering drafting amendment should Amendment No. 16 be accepted. This is quite a simple amendment, but the world of terrorism is complex and will become far more complicated. All sorts of political issues will come into the equation and it seems to us that the terms of this amendment cover the situation; that is to say, that the Secretary of State may remove an organisation from the proscribed list under such conditions.

If we do not have a condition that is clear cut and easily recognisable against that power, it would, perhaps, leave the matter a little open—a little naked—bearing in mind things that have happened in Northern Ireland at different times when negotiating with terrorists. Moreover, as we discussed earlier, this Bill can cover terrorism elsewhere in the world to some extent. Indeed, we could be dealing with international terrorist groups. Before an organisation is taken off the proscribed list, it seems to us that the Secretary of State and the government of the day should take some considerable trouble to ensure that, both nationally and internationally, the said organisation is well and truly out, if I may put it that way, of the terrorist game. I beg to move.

Lord Avebury

This is, perhaps, a convenient opportunity for me to raise a point that worries me a little; namely, that in the Explanatory Notes we are told that the Government are considering which organisations involved in international terrorism might be added to the schedule. However, as far as I know, the Government have given no indication as to which organisations they have in mind. For example, will they include all the organisations that are listed in the US State Department's Patterns of Global Terrorism,> the 1999 edition of which was published last month? Alternatively, if we do not take a ready-made list like the one to which I just referred, can the Minister give any indication of what principles will be applied?

Many organisations operate in the United Kingdom which some people may say are front organisations for terrorists. Perhaps I may give the Committee one example. Many people have complained about the activities of the Liberation Tigers of Tamil Eelam, which operates under a pseudonym. Indeed, the High Commissioner for Sri Lanka has frequently complained about this organisation. He says that the British Government tolerate the activities of the LTTE in the UK and that they allow it to maintain offices, raise funds, and so on. Can the Minister say whether the I,TTE is one of the organisations that the Government are considering banning? It is named in the US State Department's Patterns of Global Terrorism, so we are not breaking any great secrets if we discuss the matter openly on the Floor of the Committee.

The Government cannot simply take the power to proscribe any organisation that comes into their mind; they must have some idea of what constitutes an organisation engaged in international terrorism and of what action they are likely to take against it if it has offices within the United Kingdom. We are talking about very extensive powers, and I believe that most Members of the Committee would agree that they are justifiable. But, before we leave this clause, I should be grateful if the Minister could give further information about how such powers will be used.

Lord Monson

This is not only a worthwhile amendment but also a very necessary one. Surely it would be quite wrong for any governrnent to cave in to organisations currently concerned in terrorism. Of course, the drafting of the amendment may not be 100 per cent perfect; I do not know. Nevertheless, I hope that the Government will at least accept the principle behind the amendment. It will be rather alarming if they do not.

7.45 p.m.

Lord Bassam of Brighton

These amendments are very similar in effect to those moved in another place by Mr David Lidington on 20th January, so this debate has, so to speak, already taken place. As I understand it, the amendments seek to place a similar restriction on the circumstances in which the proscribed organisation appeals commission could recommend de-proscription.

I take most seriously the points made by all Members of the Committee on this issue. Clearly, we must think very carefully about such matters. We rejected the amendment moved by Mr Lidington, which would have provided that the Secretary of State "may exercise his power under subsection (3)(b) in respect of an organisation only if he believes that it has ceased to be concerned in terrorism." I shall give the reasons.

Under the Bill, proscription will be available for the first time for organisations concerned in international terrorism. I am reluctant to be drawn into listing and relying upon a US list relating to terrorism. We are carefully considering such matters. I am, of course, grateful to the noble Lord, Lord Avebury, for drawing our attention to the 1999 US State Department listing, but, as I said, we wish to consider these matters most carefully.

It has to be said that it would be excessive to proscribe every organisation in the world that is concerned with terrorism. However, I can give the noble Lord sonic idea of the factors that will be taken into account, which are fairly obvious. First, we would have to consider carefully the nature and scale of the group's activities; secondly, we would have to look al the specific threat that it posed to the United Kingdom and our citizens abroad, which is clearly a very important consideration, as well as the extent of its presence in this country. Indeed, the noble Lord drew our attention to one group which may, or may not, fall into that category. Thirdly, we would also have to consider our responsibility to support other members of the international community in the global fight against terrorism. That has to be very important.

I am sure that those with long experience of such matters, like the noble Lords, Lord Glentoran and Lord Cope of Berkeley, will recognise the role that we have to play within the wider international community in this respect. In that context, it is conceivable—and I stress only "conceivable"—that an organisation might cease to be a candidate for proscription in the UK without actually ceasing to be concerned in terrorism. It is conceivable, but we must leave it at that point.

The amendments tabled by the noble Lords, Lord Glentoran and Lord Cope, and others differ from those put forward by Mr Lidington in that their amendments require the Secretary of State to believe that the organisation is not currently concerned in terrorism. Therefore, under these amendments, the Secretary of State could de-proscribe an organisation which might not have entirely ceased to be concerned in terrorism—but only so long as he believed that the organisation was, not currently concerned in terrorism". The arguments that we advanced in another place still apply to this version of the amendment. The Government believe that the hands of the Secretary of State should not be tied. As I stressed earlier, that is particularly important given our commitments in the field of tackling international terrorism where it is conceivable that, on balance, the Secretary of State might wish to de-proscribe an organisation which is concerned in terrorism.

As we have said, the Secretary of State will take his responsibilities very seriously. But it is right to ensure that the Secretary of State can weigh up all the relevant factors without being constrained in the manner contemplated by these amendments. With that explanation and the reassurance that we shall pay very close attention to these matters, I trust that the noble Lord will agree to withdraw his amendment.

Lord Glentoran

I thank the Minister for that explanation. Despite the international world of terrorism that exists, I, too, was somewhat surprised to find that the only organisations on the proscribed list were Irish. In fact, I attempted to put together an amendment that would include some other organisations that might well be put on the proscribed list. I pursued my inquiries through routes that I have trodden before in a different life. However, the people concerned were rather loath to let me have a list of suggested terrorist organisations that might be included on that proscribed list to be used in this context; but there is a list. I am sure that the Minister has access to whatever professional expertise that he needs in that field. Our intelligence forces have considerable expertise. I accept that any government with access to such expertise should be able, with that advice, to make a decision to remove, or not to remove, an organisation from the list. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 17 not moved.]

Clause 3 agreed to.

Schedule 2 agreed to.

Clause 4 [Deproscription: application]:

Lord Cope of Berkeley moved Amendment No. 18: Page 2, line 32, after ("regulations") insert (", after consulting the Advocate General,").

The noble Lord said: In moving Amendment No. 18 I wish to speak also to the amendments with which it is grouped. They all concern the question of Scottish law and their purpose is to ensure that when decisions are taken by the Secretary of State, in the case of Amendments Nos. 18 and 177, and by the Lord Chancellor, in the case of Amendments Nos. 27, 28, 29 and 30, account is taken of the differences between Scottish law and English law.

As regards Amendments Nos. 18 and 177, I suppose that I could have included the noble and learned Lord the Attorney-General in the consultations to ensure that the Secretary of State took account of English law as well as Scottish law. Fortunately, the noble and learned Lord is not present to be offended at that omission. In any case, I believe that, as Attorney-General for Northern Ireland, his relationship with the Secretary of State is close enough to ensure that his view is taken into account.

However, I am less sure that the differences with regard to Scottish law will be adequately taken into account. As regards Amendments Nos. 27 to 30, consultation between the Lord Chancellor and the Lord President of the Court of Session is important. Scottish law and its rules and practices vary from those of English law. It is important that we do not appear to determine through the Lord Chancellor for England matters that concern Scotland, given that the Government have done their best to devolve matters to Scotland, and given that Scottish law has always been different from English law in important respects. I beg to move.

Lord Bach

These amendments would build in statutory requirements for the Secretary of State and the Lord Chancellor to consult with certain Scottish office-bearers before exercising powers under the Bill. As the noble Lord knows, terrorist matters are reserved matters. However, he is correct to say that the Scottish dimension will always be important. It is obviously the intention of noble Lords to ensure that that dimension is properly reflected in the exercise of these powers. The Government are aware that the Law Society of Scotland has proposed that the Bill be amended along these lines.

Strictly speaking, all these amendments are unnecessary. The Secretary of State and the Lord Chancellor will, in any event, take account of any distinctive Scottish dimensions in exercising these powers. The positions of the two Scottish offices in question are, however, slightly different. The Advocate General for Scotland is a United Kingdom Government law officer. She is the legal adviser to the Cabinet on Scottish law—the equivalent of the Attorney-General as regards other matters. As such, any Secretary of State would consult her and, no doubt, the Attorney-General, as a matter of course on the making of regulations such as those in Clauses 4 and 118. This procedure is internal to the Government and we see no need whatsoever to spell it out on the face of the legislation. There is also a technical deficiency with Amendments Nos. 18 and 177 in that the reference should be to the "Advocate General for Scotland".

The case of the Lord President of the Court of Session is slightly different. He is the most senior judge in Scotland, and so he is not, of course, part of the Government. The Lord Chancellor would normally consult him on matters of the kind set out in Schedule 3. But we are prepared to consider further whether there would be any advantage in requiring this on the face of the Bill.

We wish to take away Amendments Nos. 27 to 30 and consider them further. We hope that the noble Lord will consider withdrawing Amendments Nos. 18 and 177 on the basis of the arguments that I have deployed.

Lord Cope of Berkeley

I am encouraged by the Government's response to Amendments Nos. 27 to 30 and by their explanation of the other amendments in the group. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 19: Page 2, line 37, at end insert— ("(c) require the Secretary of State to publicise the application, and (d) provide for representations by other interested parties to be made in favour of, or against. the application within a reasonable time.").

The noble Lord said: Clause 4 concerns an application to the Secretary of State for an organisation to be removed from the list of proscribed organisations. An organisation itself, or any person affected by its proscription, can apply for it to be removed from the list if it has renounced terrorism. Amendment No. 19 asserts that the application should be considered in the light not only of representations from the proscribed organisation itself but also from anyone else who wishes to comment on it. Therefore, it seems to me that the Secretary of State ought to publicise the fact that he has received an application to remove an organisation from the list and provide for representations to be made—within an appropriate timescale—by other people who are either in favour of, or against, the application.

Although the Secretary of State is usually extremely well informed in these matters, he may not necessarily know everything. Furthermore, those who have suffered as a result of the activities of a proscribed organisation might he deeply offended to discover that that organisation is struck off the list without their even knowing that an application had been made to do so. I therefore believe that the amendment should be carefully considered in the interests of the proper treatment of those who have suffered at the hands of these proscribed organisations—some of which, as we know, have committed the most dastardly crimes. I beg to move.

Lord Lester of Herne Hill

A little later we shall consider possible rights of appeal against the proscription, as distinct from the deproscription, of political organisations. However, this seems to me to be the right point at which to raise a particular matter with the Minister. I do not expect him to respond to it this evening.

As I understand it, the Government committed themselves— I commend them on this—as regards statements of compatibility under Section 19 of the Human Rights Act, to the proposition that the Minister in charge of the Bill will explain in the course of debates on the Bill the reasons for his views on the compatibility of the Bill.

In relation to proscribing and deproscribing terrorist organisations, the matter that concerns me is the way in which the appeal rights are so circumscribed. The curious abridgement of the rights of appeal is the other side of the coin to the amendment of the noble Lord, Lord Cope. How can this be compatible with the right to a fair trial and the determination of one's civil rights and obligations under Article 6, and perhaps under Article 14, of the European Convention on Human Rights?

If one looks at Clause 5(3), the right of appeal is to be, in the light of the principles applicable on an application for judicial review". That is fine. I take it that when the Human Rights Act comes into force that will include an application for judicial review using the convention rights that are to he directly effective in our courts.

But when one comes to Schedule 3, which deals with the procedure for appeals, one notes that, under paragraph 5, The Lord Chancellor may make rules…regulating the exercise of the right of appeal to the Commission including making provision about the burden of proof and the admissibility of evidence.

Then, under paragraph 5(4)(a), provide for full particulars of the reasons for proscription or refusal to deproscribe to be withheld from the organisation or applicant concerned and from any person representing it or him". I do not understand how there can be a fair hearing of the issue of whether to proscribe or deproscribe if the victim—this is the victim on the wrong side of the amendment of the noble Lord, Lord Cope—cannot know the reasons.

As I said, it is a detailed and important question. I would rather that the Minister had the opportunity to consider the answer and, perhaps at Report stage, explain the reasons for considering the Bill to be compatible in respect of the right to a fair hearing. I particularly have in mind not only Article 6, but the right to freedom of association under Article 11 of the convention.

One does not start with huge sympathy for these organisations, but, nevertheless, it is often the most unpopular people whose procedural and fairness rights we need to be vigilant about, even if they would be contemptuous of our rights. It is for that reason that I raise the issue now.

8 p.m.

Lord Bassam of Brighton

Perhaps I may deal first with the issue raised by the noble Lord, Lord Lester. I am grateful to him for the way in which he has raised this matter. I do not promise to give him a full response today—he is desirous that I do so perhaps at Report stage—but, having followed through his logic, it is obvious that he has raised a fair point.

We will of course write to the noble Lord but the important issue in this whole exercise—as I think he understands from some of his concluding comments about not having great sympathy for the organisations concerned—is to design a system which can protect sensitive intelligence. I suspect that that is part of the thinking behind the way in which the current schedule is drafted. However, I undertake to fully explore the issue that the noble Lord has quite properly raised.

Turning to the amendment of the noble Lord, Lord Cope, I recognise that the intention of these amendments is, as he plainly said, to open up the deproscription application and appeal processes to others who may claim an interest—in short, to make this a more public process. But there are limits to how public this can properly be. The Secretary of State's decisions will often take account of sensitive intelligence matters, to which I have referred, that cannot be published. I am sure that Members of the Committee will understand that. The Secretary of State must weigh all the available information and decide where, overall, the national interest lies. We believe that the processes are already as open as they can be and that it would be wrong to amend the Bill in the manner proposed.

Let me deal first with the proposal that third-party representations should be able to be made for or against proscription at both the application and appeal stages. In short, we believe this to be unnecessary.

So far as concerns representations against proscription, any person who is affected by the organisation's proscription can, in any case, apply for deproscription in his own right under Clause 4(2)(b). Organisations will doubtless seek to put together the best case that they can and to draw together such support as they can muster, both at the application and appeal stages.

On the other hand, there may be third parties who feel strongly that the organisation should remain proscribed for some of the reasons referred to by the noble Lord. There is of course nothing to stop them making their views known, whether publicly or privately, to the Secretary of State. He will have already a very clear sense of the strength of feeling that the victims of a terrorist organisation, or their families and those close to them, may well have in support of continuing proscription.

The Secretary of State will make his decision on the basis of all relevant information—but the decision cannot be reached through a process of public debate, with all the relevant material available to all concerned. For those reasons we think it would be wrong to formalise a system which might suggest otherwise. We do not agree that there should be a statutory right for third parties to be heard.

With that in mind, perhaps I may now deal with the proposal that the Secretary of State should publicise applications. This would, of course, provide a trigger for third party representations. We do not see it as appropriate for the Secretary of State to be required to publicise applications in any case. If an organisation or affected person wants to make their application known, they will doubtless be able to do so. We believe that it should be for the applicant to do this. There may well be particular sensitivities in the case of some individuals.

In many instances an organisation will publicise its application anyway. It will be representing itself as a legitimate group and might well try to seek support from the press, from the public and from others to that end. But, as I said, this is not a matter that can be settled by public debate. There therefore seems little advantage in seeking to prompt such debate.

We are persuaded neither of the benefit of a statutory right for third parties to make representations at either stage, nor of the need for applications to be publicised. I therefore hope that, having heard the points that I have made, which focus very much on the hard facts of the issue, the noble Lord will feel able to withdraw his amendment.

Lord Cope of Berkeley

My amendment does not seek an open process. There is nothing in the amendment to suggest that the application or the representations about it should be heard in public or argued out in a public forum such as a court of law. Of course I understand the point about intelligence information—the Secretary of State will make his decision very largely on information that he may not wish to disclose—but that is not what I am looking for. All that I seek is for those who may be victims of a particular organisation, or otherwise affected by it, to be in a position to make representations about why it should not be deproscribed. Amendment No. 21 makes a similar point.

The Minister said that there is nothing to stop them from making representations. I agree—there is nothing to stop them provided that the application has been made—but the application can be made secretly and, unless this amendment or one similar to it is agreed to, the Secretary of State has no obligation to publicise it. They are not going to make representations on the off-chance that there may have been an application to deproscribe.

The Minister does not seem to have answered the point. None the less, I do not propose to pursue the matter at this juncture and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Deproscription: appeal]:

Lord Goodhart moved Amendment No. 20: Page 2, line 39, at end insert— ("( ) Where an order has been made under section 3, the organisation may appeal to the Commission.").

The noble Lord said: Amendment No. 20 and the other amendments in this group concern the provisions in Clauses 3 to 10 of the Bill about proscription matters. What we have under this very curious procedure is sentence first and trial second. What happens is that the Home Secretary makes a proscription order. That order comes into effect immediately with all its consequences. Membership of the proscribed organisation becomes an offence. Arranging a meeting to be addressed by a member of the organisation becomes an offence. That is obviously interference, as my noble friend Lord Lester pointed out, with rights of association and rights of freedom of speech of the members of the organisation. Those rights are not unrestricted. There have been and will be cases where these draconian steps are justified. Surely that should normally happen only after some kind of hearing has taken place.

What happens here is a most peculiar procedure. The proscribed organisation cannot appeal against a proscription order. What it can do is to apply under Clause 4, which it can do immediately, to be de-proscribed. If that application is refused, it can go to a hearing before the proscribed organisation appeal commission. That is a somewhat misnamed commission because the commission does not hear what is, in the ordinary sense of the word, an appeal; it judicially reviews the Home Secretary's decision, and that in itself is not a satisfactory arrangement.

The question then arises as to what happens if someone has been convicted of, let us say, membership of the organisation in the interval between the original proscription order being made and the date when the commission allows the appeal against refusal of the de-proscription order. This again is most peculiar. Under Clause 7, it all depends on whether the act which gives rise to the conviction occurred before or after the refusal by the Home Secretary to make a deproscription order If the offence is committed after the Home Secretary's refusal, the defendant can appeal to the Court of Appeal and, by statutory provision, the like of which I have never come across before, the Court of Appeal is legally bound to allow that appeal. On the other hand, if the offence is committed before the Home Secretary has refused to make the de-proscription order, the conviction stands even if the ground on which the commission allows the appeal is that there is no evidence which would have justified the Home Secretary refusing the de-proscription order.

This whole procedure is unnecessarily elaborate. First, why not simply allow an appeal from the proscription order? That is the purpose of Amendment No. 20 and Nos. 22 to 24. Secondly, while such an appeal is pending, the consequences of proscription should not, we believe, in general apply and that is the purpose of Amendment No. 31. The appeal to the proscribed organisation appeal commission is the only form of judicial proceeding involved in the proscription process and, while the appeal is pending, we believe that there should be no liability to prosecution under Clauses 11 to 13 or to the other consequences of becoming a proscribed organisation.

We make one proposed exception to that on obvious grounds of common sense. The cash of a proscribed organisation is liable to seizure and detention under Clauses 25 to 27. If those clauses do not come into effect until an appeal is dismissed, it is obvious that the cash would have disappeared in the interim. It therefore seems reasonable to make an exception for the seizure and detention of cash. There could of course be no order for forfeiture under Clause 28 until the appeal is dismissed and, if the appeal is allowed, the cash would of course be returned.

We are seriously concerned about the fairness and justice of this exceptional procedure. We think it should be both simplified and also altered to ensure that the consequences of proscription do not come into effect until such time as a judicial body has had a chance to look at the matter. There may be cases in which more immediate interim action should be taken on matters other than cash but, if so, I suggest that the Government should come back with amendments which will target those particular occasions and not have a general rule which makes proscription orders come into effect immediately, whether or not there is in fact any good reason why they should do so. I beg to move.

8.15 p.m.

Lord Lester of Herne Hill

My name is also attached to this amendment, but I shall not repeat anything said by my noble friend. However, I should like to make one or two further points on which I hope the Minister and his advisers will reflect.

First, there is no doubt that, by proscribing an organisation, action is being taken that interferes with a human right, the human right to freedom of association and the associated right to freedom of speech.

Secondly, that interference can be made only if it is prescribed by law and is necessary in a democratic society. The Human Rights Act would ensure that this Bill must be read and given effect in a way that is compatible with those rights if it possibly can. However, it is much better if we can write into the Bill provisions that ensure it rather than leaving it to judges in mitigation to put the matter right.

Thirdly, if there are no criteria spelled out in the Bill as to the circumstances in which the proscribed act will take place, that will lack legal certainty because people will have to guess and will not know what the circumstances are in which an organisation will he proscribed.

Fourthly, proscription must be only where necessary for a pressing social need, the burden of proof being upon the Government rather than the organisation to establish that under the convention. The last point is that these convention rights—freedom of association and speech— must be determined not only in a manner prescribed by law but must involve a fair hearing.

The Minister has already referred to the need to withhold sensitive intelligence information from the organisations and their perpetrators. I accept that. However, this is not a new problem for the Government or Parliament. It has arisen twice before. The first example was the case of Chahal v. United Kingdom where, in relation to suspected terrorists who were being extradited to India, the "three wise men" procedure was held by the Strasbourg Court to be wanting, partly because English courts could not effectively review the merits of the decisions. That led the Government, very wisely, to introduce a special procedure with a special form of judicial protection with a court-appointed lawyer who did not have to represent the alleged terrorists but who was provided with the basic information so that the Government's case could be tested.

The second example was the case of Tinnelly v. United Kingdom, which involved a very sensitive terrorist problem where national security considerations had to be weighed against granting contracts in Northern Ireland to people suspected of being associated with the IRA or with terrorism. Again, the Government have, very wisely and sensibly, introduced a special procedure to accommodate Article 6 of the convention.

Article 6 is not absolute. The right to a fair hearing is not absolute. It may be qualified by necessary and proportionate limitations. I accept that. But given that paragraph 7(4) of Schedule 3 provides for a specially appointed lawyer to be able to represent the interests of the organisation without being responsible to it, I see no good reason why a court-appointed lawyer, as it were, cannot be provided with the basic information so there can be a fair hearing without any disclosure to the proscribed organisation or the perpetrators. These are serious issues.

If, on reflection, the Minister is against me on all these points and stands by the position that a truncated appeal procedure is compatible with the convention, I ask him this question. If it is to be so circumscribed, why on earth cannot that circumscribed procedure apply to the proscribing of the organisation rather than in the convoluted way set out under the Bill? I am not advocating such a circumscribed procedure, but if it is to be so circumscribed, I cannot think of any compelling public interest reason why Amendment No. 20 is not a sensible approach.

Lord Bassam of Brighton

Perhaps I may deal, first, with the comments of the noble Lord, Lord Lester. I listened with great care to what he had to say. I shall read Hansard very carefully as a consequence. I fully respect and understand the points he makes, certainly in relation to human rights and the operation of this appeal mechanism. We must have careful regard to all of those issues. We may well want to reflect on them some more.

As I understand the amendments, they introduce in effect a new right of appeal additional to what we consider to be the valuable appeal arrangements already proposed in the Bill. Our argument is that this addition is unnecessary. I shall explain the procedure as we have designed it. Under the Bill, as is the case under the existing legislation, the Secretary of State may proscribe organisations which are concerned in terrorism. Once Parliament has given its approval, subject to the affirmative resolution procedure, the proscription regime takes effect. That regime includes not only the membership offences in Clauses 11 to 13 and the cash at borders powers in Clauses 24 to 31 but also the terrorist property provision in Clauses 14 to 23 and with them the arrangements for restraint and forfeiture orders in Schedule 4.

If a person thinks that an organisation is wrongly proscribed, the first step is to apply, as is understood, for deproscription. He may be able to present new information that was not available when the initial decision was taken, or he may have information which shows that an organisation which was at one time concerned in terrorism and was properly proscribed is no longer concerned in terrorism and should consequently be deproscribed. The Secretary of State will then look again at the case and may decide on deproscription at that stage. If, however, the Secretary of State refuses to deproscribe, the person can appeal against that decision to the proscribed organisations appeal commission. If the commission determines in his favour, it can make an order and the effect of the order is that the Secretary of State must lay a deproscription order or deproscribe using the urgency procedure. If it is deproscribed following such an order, not only do the offences cease to take effect but also convictions can be overturned by virtue of Clause 7. Seized cash can be returned by virtue of Clause 29 and compensation made in respect of restraint and forfeiture orders may be sought. Paragraphs 10, 24 and 40 of Schedule 4 permit that.

We have always recognised that proscription is a very heavy-handed power. We believe that this procedure provides an important safeguard against its misuse by the Secretary of State. However, we also believe that the additional procedure proposed by the noble Lord's amendments would go beyond the needs of a safeguard and would be detrimental to the effective operation of the proscription regime itself.

Perhaps I may explain why we think the organisation must first apply for deproscription rather than being able to go straight to the proscribed organisations appeal commission to appeal the initial decision to proscribe. First, there is the genuine possibility that the Secretary of State may agree to deproscribe the organisation. That would avoid the need for what could be a lengthy and costly hearing before the proscribed organisations appeal commission. So it cuts out that unnecessary layer. Moreover, where an organisation has been proscribed for some time, an appeal against the decision to proscribe will not produce the right result. It could be that the initial decision to proscribe was lawful when it was made but that the situation had subsequently changed, either because the organisation had ceased to be concerned in terrorism or because the balance of factors to be taken into account in determining proscription—

Lord Goodhart

I am grateful to the Minister for giving way. Presumably, there would be a time limit within which an appeal could be made against the original proscription order. In that case it is very unlikely that in that relatively short interval, which might well be 14 or 28 days at the most, the nature of the organisation would have changed.

Lord Bassam of Brighton

That might be the case, yes. I accept the point. However, we believe that it is right to begin the process in every case with an application to the Secretary of State. The Secretary of State will be required to determine applications within a time specified in regulations. Under the current draft, the proposal is that that would be 90 days. Where he refuses, the case will have to reach the commission before very long.

Perhaps I may explain why it is our policy that the organisation should remain proscribed until the final disposal or determination. At Second Reading the noble Lord, Lord Goodhart, drew attention to this point and described it, as he did earlier, as conviction first and trial afterwards. That is not the right analogy. Proscribing an organisation is not like convicting a person. It is a powerful deterrent, not an offence in itself. That is an essential part of the consideration. The noble Lord suggests that the proscription order should not take effect until the end of the appeal process. The Government do not believe that that would work. Most obviously, under the noble Lord's proposal it would be in every organisation's interest to lodge an immediate application, and if that was refused, an immediate appeal, and to ensure that the proceedings lasted as long as possible. As the main proscription-related offences would not apply during that period, the organisation would be able to go on recruiting new members and generating support despite the fact that Parliament had endorsed the Secretary of State's view that it was concerned with terrorism. Under the present system, by contrast, it is in everyone's interest for the appeal procedure to work smoothly.

A further objection to the amendment is that, as I indicated at Second Reading, the noble Lord wishes to preserve the powers to freeze the resources of proscribed organisations. The new clause will not achieve that because subsection (2) applies only to cash at borders. In fact, the most powerful freezing provisions are the restraint orders in Schedule 4, which are inextricably bound up with the terrorist property offences in Clauses 15 to 18. Even if the proposal were redrafted to take that into account, I do not see the logic of the Government saying "You can go on being members of the organisation until the end of the appeal process, but we will freeze your assets now just in case we win". We believe that the only tenable position is that set out in the Bill whereby an organisation is either proscribed or it is not.

I recognise all of the sensitivities that have been raised by the noble Lord in moving the amendment. However, when one looks at the practicalities of the situation, I think that the amendments require further thought. I suggest that the noble Lord withdraws the amendment.

Lord Avebury

As the Minister described the procedure, the Secretary of State may proscribe the organisation and once Parliament gives its approval that proscription comes into effect. He is of course right in so far as concerns Clause 122(3), which provides that any order made under Clause 3 is subject to affirmative resolution by Parliament. There will then be a breathing space during which the organisation will know that proscription is coming and would be able to take precautions so as not to commit any of the offences outlined in Clauses 14 to 23, in particular those related to soliciting money or disposing of property.

However, perhaps I may also draw the Committee's attention to Clause 122(4). That allows the Secretary of State not to go through the affirmative resolution procedure but to declare that the matter is one of urgency so that proscription can come into effect immediately. That means that the Secretary of State could declare the matter urgent, proscribe an organisation at 10 o'clock in the morning and, from that point onwards, the members would be committing the offences specified in the Bill, even though they would not know that such an order had been made. There is no requirement on the Secretary of State, if he declares that the matter is urgent, to notify the organisation that it has been proscribed.

I do not think that the Committee will agree that someone who has no way of knowing that a proscription order had been made could be committing an offence under one of the provisions in Clauses 14 to 23. Surely this cannot be the intention of the Government?

I believe that the Minister should think again about this part of the provisions. If the suggestion of my noble friend were to be accepted, then the organisation would have a right of appeal against a proscription order whether it was made by affirmative resolution or by the urgency procedures laid down in Clause 122(4). The difficulty would then be removed. I think that the Minister will somehow have to satisfy the Committee that people will not be put into the position of committing offences of which they could not have had any knowledge.

8.30 p.m.

Baroness Park of Monmouth

I suggest that it would be rather difficult for a terrorist not to know that he was a terrorist.

Lord Avebury

Perhaps I may reply to that comment. The point is not whether he is a terrorist, but whether he commits one of the offences laid down in Clauses 14 to 23 which arise only when the organisation is proscribed.

I shall return to the example I gave earlier in the debate; namely, that of the Liberation Tigers of Tamil Eelam. I believe that I have made it clear that I have no sympathy whatever with that organisation. The Government would be right to take action to stop the activities of that particular terrorist organisation, which has brought such misery to the people of Sri Lanka. However, my point is this. The Secretary of State can make an order proscribing the LTTE at 10 o'clock in the morning. Someone in that organisation might continue to solicit money from its members for the purposes of the organisation—it is always declared that such donations are for the welfare of the people in the Tamil north rather than for terrorist purposes, but it is known that the money is somehow diverted into the military activities of the LTTE. Notwithstanding my abhorrence of the acts of violence committed by the organisation, if the Secretary of State makes an urgent decision to ban the organisation, its members should not be made liable for prosecution for something which they could not know had become a criminal offence by reason of that decision to invoke the urgent procedures laid down in Clause 122(4).

Lord Bassam of Brighton

We would be wise to be cautious in these matters, given the serious nature of terrorism and terrorist offences. It is that precautionary principle that has informed our approach here.

I understand the difficulties in which individuals might be placed, given the circumstances set out by the noble Lord, Lord Avebury, but we have made it clear that if, subsequently, the organisation was successful on appeal, then, quite properly, restitution would be made. Those procedures need to be fully understood.

Lord Goodhart

I am grateful to the noble Lord for giving way. The conviction would not be set aside unless it had been made after the Home Secretary had rejected the application for the de-proscription order. So someone who is convicted of membership before the de-proscription order is applied for, or even after application has been made and before it has been dealt with by the Home Secretary, would find that the conviction would stand.

Lord Bassam of Brighton

I should like to reflect on the words used by the noble Lord. That would seem to be quite right.

Lord Lester of Herne Hill

I apologise for intervening once more. The noble Lord has said that that seems to be "quite right". How can it be right for someone to be convicted of a form of conduct which has been proscribed without fair warning? The noble Baroness, Lady Park of Monmouth, rightly pointed out that terrorists must know what they are up to, but they will not know, until they have been informed that this procedure has been triggered, that they will be committing terrorist offences under this part of the Bill. Surely that violates the fundamental principle of legal certainty? Is not that the problem which needs to be addressed, whether by enhancing the rights of appeal or in some other way?

Lord Bassam of Brighton

The noble Lord will know better than I because he is a noble and "learned" Lord and the notion of legal certainty is extremely important.

I am quite happy to look at the point that has been made here. However, I believe that we are satisfied with the arrangements that we have set out. They are not entirely unfamiliar. Furthermore, we believe that the appeal process provided for is simple enough to be comprehensible and easily understood in those circumstances.

Perhaps all noble Lords will think about what I have said in response to their earlier comments and study the Hansard report. No doubt they shall wish to reflect carefully on the Government's position. On that basis, I urge the noble Lord to withdraw his amendment.

Lord Hylton

I am grateful to the Minister for saying that he will consider the point just raised by the noble Lord, Lord Lester of Herne Hill. In the course of that consideration, will he reflect on the need for the Secretary of State to publicise any decision which has immediate effect so that people in the wider society do not unwittingly commit acts that become offences, but which previously were not offences?

Lord Goodhart

It is not my intention to press this matter to a vote today. However, it is likely that we shall bring back these amendments in a varied form on Report. However, for the time being I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 21 to 26 not moved.]

Clause 5 agreed to.

Schedule 3 [The Proscribed Organisations Appeal Commission]:

[Amendments Nos. 27 to 30 not moved.]

Schedule 3 agreed to.

Clause 6 agreed to.

[Amendment No. 31 not moved.]

Clause 7 agreed to.

Clause 8 [Section 7: Scotland and Northern Ireland]:

Lord Cope of Berkeley moved Amendment No. 32: Page 4, line 34, leave out subsection (1).

The noble Lord said: I beg to move Amendment No. 32 although I do not wish to press it tonight. The amendment has been tabled in order to ask the Minister if the Scottish Parliament has been consulted here. I am aware that matters of antiterrorism and the other principal matters contained in this Bill are reserved matters for the Westminster Parliament and the Government of the United Kingdom. However, these proposals have effects on the Scottish judicial system, which is a devolved matter. It therefore seems proper for the Scottish Parliament, not only the Scottish Executive, to be consulted about these matters. I have tabled the amendments in order to ask whether that is so.

Lord Bach

The answer to the noble Lord's question is that the Scottish Executive has been consulted, but not the Scottish Parliament. I shall go into a little more detail if the noble Lord requires me to do so. This is obviously a probing amendment and we appreciate it.

These amendments would have the effect of removing from the Bill the application to Scotland of the appeal right in Clause 7, and the provisions for forfeiture and restraint orders in Schedule 4. We have assumed that these are probing amendments; otherwise they would be wrecking amendments. They must be one or the other.

As noble Lords are aware, terrorism is a matter reserved to the Westminster Parliament, under Head B8 of Schedule 5 to the Scotland Act 1998. To deal first with Amendment No. 32, subsection (1) of Clause 8 makes the necessary applications to Scotland of the provisions of Clause 7. Those provisions are concerned with, as subsection (1) of Clause 7 states, a situation where, first, an appeal under Clause 5 to the proscribed organisations appeal commission against a refusal to de-proscribe an organisation has been allowed by the commission; secondly, an order has been made under Clause 3(3) to remove the name of the organisation from the list in Schedule 2; thirdly, a person has been convicted of an offence in respect of the organisation under various clauses of the Bill; and, fourthly, the activity to which the charge referred took place on or after the date of the refusal to refuse to de-proscribe an organisation.

These are all matters concerned with the subject matter of terrorism. They are not concerned in any way with the general principles of Scots criminal law. In fact, subsection (1) of Clause 8 is an example of the provision referred to in Section 29(4) of the Scotland Act; that is, it is a provision which relates to the reserved matter of terrorism; it modifies Scots criminal law in relation to that reserved matter of terrorism and should therefore be treated itself as relating to the reserved matter of terrorism.

In all respects, subsection (1) of Clause 8 is properly included in the Bill as relating exclusively to the reserved matter of terrorism. To remove that subsection would be to deny persons in Scotland essential elements of the commission remedy which will he available in England, Wales and Northern Ireland.

Turning to Amendment No. 42, under Clause 23 the Scottish court which convicts a person of an offence under any of Clauses 15 to 18 may make a forfeiture order —that is an order whereby money or other property of the offender is ordered by the court to be forfeited, where that money or property was in the possession or under the control of the offender at the time of the offence. Part II of Schedule 4 sets out in detail for Scotland how forfeiture orders are to work in general and in particular circumstances.

Part II of Schedule 4 therefore contains detailed provision for the purposes of Clause 23, which in turn depends on a person having been convicted under any of Clauses 15 to 18 of the Bill. I shall not go through each of the offences set out in the four clauses.

It is clear that each of the offences to which Clause 23 and Schedule 4 apply is an offence relating to terrorism. A glance at the Bill shows that. Under the section of the Scotland Act to which I have referred, terrorism is, of course, reserved to this Parliament. It is therefore proper that provisions for Scotland comparable to the provisions being made for England, Wales and Northern Ireland elsewhere in Schedule 4 to the Bill should be included the Bill.

It would not be within the competence of the Parliament at Holyrood to deal with this matter, and I am sure that noble Lords would not wish that no provision were made for Scotland in respect of forfeiture orders.

The answer to the noble Lord's question is that the executive has been consulted. I know that I have given rather a full answer, but it perhaps explains how the Bill fits in with the reserved powers.

Lord Cope of Berkeley

The Minister has indeed given a full answer, but that does not mean to say that it is satisfactory. I fully understand that terrorism is a reserved matter. However, these provisions lay down time limits in various cases in the Scottish courts, and the judicial system is a devolved matter. However, I do not propose to press the matter at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clauses 9 and 10 agreed to.

Clause 11 [Membership]:

8.45 p.m.

Lord Skelmersdale

had given notice of his intention to move Amendment No. 33: Page 6, line 36, leave out paragraph (b). The noble Lord said: Tempted though I am, I shall not move the amendment.

[Amendments Nos. 33 and 34 not moved.]

On Question, Whether Clause 11 shall stand part of the Bill?

Lord Avebury

I should like to reinforce what was said earlier about the case that I outlined of an order being made by the Secretary of State under Clause 3 and treated as a matter of urgency as a result of the provisions in Clause 122(4).

Perhaps I may illustrate the point. You are a member of an organisation that has functioned perfectly legally in the United Kingdom up until this point. At 10 o'clock one morning the Secretary of St ate makes an order which he deems to be urgent proscribing that organisation. You are then committing an offence if you carry out any of the acts mentioned in Clauses 14 to 23. Your only defence, under Clause 11, is if you can prove that you became a member of the organisation at a time when it was not proscribed. But, in addition, you have to prove that you took no part in the activities of the organisation at the time when it was proscribed. So any act that you have committed between the moment when the Secretary of State made the order and your coming to the knowledge of it by reason of the Secretary of State within 40 days having laid an order before Parliament, is liable to prosecution; and if you are convicted you may be sentenced to prison for 10 years.

It is a very serious matter to prosecute someone for an act that he did not know was criminal at the time he was committing it and to make him liable to a sentence of imprisonment. I really do think that the Minister has not given sufficient thought to the implications of Clause 122(4) and its repercussions with reference to earlier clauses in the Bill, particularly Clause 11, which provides for extremely serious penalties to be imposed on a person for being a member of an organisation and taking any part whatsoever in its activities. Is that provision really what the Committee wants in the Bill?

Lord Hylton

I agree with the noble Lord, Lord Avebury, on the point he has just made. However, my concern relates to Clause 11(2) placing the burden of proof entirely on the defendant, who must prove absolutely the various points set out. I wonder whether the Government would be happy to accept, at the next stage of the Bill, an amendment using some lesser words—for example, "to show", which would not require such a high standard of proof. As presently drafted, the provision seems draconian.

Lord Lester of Herne Hill

Perhaps I may add another question to the multiple-choice examination that we have inflicted upon the Minister. Might the Government seek to solve the problem by accepting that under Clause 11(1) guilty knowledge is necessary; in other words, that a person commits an offence if he knowingly belongs or professes to belong to a proscribed organisation? That would take care of the problem raised by my noble friend.

Lord Bassam of Brighton

Clause 11(2) contains a defence to cover the very rare and specific set of circumstances in which a person becomes a member of an organisation before it is proscribed and has played no part in it after its proscription. To all intents and purposes the person has left the organisation, although that may not be possible in the circumstances. Normally, it is an offence to be a member of a proscribed organisation and no distinction is drawn between active and passive membership, but in the interests of justice this provision makes an exception in the specific case that I have set out. Having made an exception to the general rule that membership per se is an offence, it seems reasonable that the onus should be on the defendant to make the case that he or she has not played an active part in the organisation. As I understand it, there have been no prosecutions for this offence since 1990. In the period 1991 to 1998 only 90 people have been convicted of the offence in Northern Ireland.

It is important to ensure that there is power for proscription to take effect immediately. If an organisation pursues an active campaign of terrorism in this country the public will expect it to be made illegal now, not given a warning that it needs to argue the case on appeal. In general Clause 11 makes it an offence to belong or profess to belong to a proscribed organisation. That provision is modelled on legislation with which we are very familiar: Section 2 of the Prevention of Terrorism Act and Section 30(1)(a) of the emergency provisions Act. There is a defence. The issues have been made clear and understood. But it is important to have the flexibility that we have sought to provide in the legislation. While I have listened carefully to the comments of the noble Lords, Lord Hylton and Lord Avery, the Government believe that they have got the balance right in Clause 11.

Clause 11 agreed to.

Clause 12 [Support]:

Lord Goodhart moved Amendment No. 35: Page 7. line 9, leave out paragraph (c).

The noble Lord said: Under Clause 12(2) a person commits an offence if, among other things, he arranges a meeting which he knows, is to be addressed by a person who belongs or professes to belong to a proscribed organisation".

The purpose of Amendment No. 35 is to delete that part of the clause. A meeting can include one of only three people. It will, therefore, be an offence under Clause 12(2) for a person to arrange a meeting with members of a proscribed organisation to try to persuade them to give up terrorism. It will be an offence for a journalist to arrange a meeting with two members of a proscribed organisation in order to obtain information for the purposes of the media. Apart from Crown privilege, it would even be an offence for members of the Government to meet members of the IRA. Subject to parliamentary privilege, it would make it an offence for my noble friend Lord Alderdice to manage any meeting of the Northern Ireland Assembly since that body undoubtedly includes members of the IRA.

We do not object to those parts of Clause 12(2) which make it an offence to arrange a meeting to support or further the activities of a proscribed organisation. However, we object to Clause 12(2)(c). Amendment No. 36 raises a similar point in respect of Clause 12(3) under which a person commits an offence if he addresses a meeting which he knows is to be addressed by a member of a proscribed organisation. Therefore, a person who speaks at a meeting in order to denounce the proscribed organisation is still guilty of an offence. We do not regard Clause 12 as acceptable as it stands.

Lord Hylton

I support the pair of amendments to which the noble Lord has spoken. The amendments do something to reduce the over-wide drafting of the Bill as it stands. The kinds of people who could be caught by the Bill as it stands would include those who went to a meeting specifically to condemn violence or criminal activity, or simply to put the other side of an argument. The provision is also likely to catch negotiators, mediators and go-betweens of one kind or another who probably genuinely seek to resolve a conflict or defuse a situation. I hope that the Government will consider this matter very fully.

Lord Skelmersdale

Surely, that is the case only if one ignores subsection (4) which provides: in subsections (2) and (3) 'meeting' means a meeting of three or more persons". That cannot possibly catch a go-between.

Lord Goodhart

Of course it can. If the go-between meets two members of the IRA that is a meeting of three people.

Lord Hylton

A completely innocent person such as the custodian or caretaker of a hall is potentially at risk.

Lord Lester of Herne Hill

I have added my name to my noble friend's amendment. The most serious concern of Justice, of whose council and executive I declare an interest as a member, is that the restrictions placed on free speech and freedom of assembly by Clause 12 violate the human rights standards in the European convention. The reasons have been given by all noble Lords who have spoken so far. The effect of the provisions is that those who organise meetings and share the platform with supporters of a proscribed organisation to debate with them, or even to oppose the actions of the proscribed organisation, can themselves be liable to a criminal charge, which is quite absurd. It is absurd because there is no requirement that a speaker at the meeting should promote any terrorist cause or express any sympathy with it in order to be liable to prosecution.

Various examples can be given and most have already been cited. I add two more for good measure. If General de Chastelain held a press conference with a member of a terrorist organisation to announce a decommissioning initiative he could potentially be breaking the law if the clause as it stands is retained. If a journalist organised an interview with a number of members of a proscribed organisation to inform the public and contribute to the debate, under the Bill he or she could be liable to prosecution. If a victim of terrorist violence addresses a meeting at which he knows members of a terrorist organisation will be present in an attempt to persuade them to abandon violence he also incurs the risk of prosecution under Clause 12.

The Home Secretary insisted in another place that Clause 12 would be applied selectively and with discretion by the Director of Public Prosecutions, but nothing in the Bill imposes any limitation. One of the problems of Clause 12, which that does not deal with, is that it has an inevitable chilling effect. Whatever may be the policy of the DPP, the threat of prosecution and the substantial penalty under Clause 12 could hinder effective democratic debate and interfere with the freedom of expression and assembly rights of a wide range of individuals. That plays into the hands of terrorism and violates elementary principles of the rule of law and the effective protection of human rights.

Lord Avebury

These provisions could affect the work of reputable organisations in the United Kingdom which are concerned with conflict resolution. I shall refer to just two of them. International Alert and Conciliation Resources are concerned with trying to solve the conflicts in other parts of the world. In order to do so, they invite and hold discussions with protagonists in their offices. In the past I have been present at some of those discussions.

Let us suppose that one is interested in the problems of Sudan where civil war has been raging for years. One invites members of the Sudan People's Liberation Army to a meeting in London for the purposes of ascertaining whether there are any grounds on which progress can be made with the Government's ideas on devolution and federalism. If the SPLA was an organisation proscribed under the Bill, those activities would become illegal.

We should do well not to focus as narrowly as we have done on the Irish dimension. We have to envisage a situation in which a number of organisations, engaged in armed opposition to their own governments, are proscribed. I sought earlier to elicit from the Minister under which principles those organisations would come in the terms of the Bill. The noble Lord was unwilling to discuss whether the United States State Department list would be used as a model. That is an extensive list. If we were to adopt it and proscribe all the organisations on it, there would be a great many illegal bodies operating within the United Kingdom.

However, let us suppose that we have a different list. The noble Lord seemed to indicate that we would not be too bothered about whether or not the Americans deemed an organisation to be terrorist. The problem then is that an organisation may be terrorist in one country but not another. That does not seem in conformity with the efforts made over the past years to gain concerted international action to deal with terrorism wherever it occurs.

In one way or another, we are in difficulties. Those difficulties arise mainly from the fact that we do not know how the powers will be used. The Government appear unwilling to tell us the extent to which they will go in banning organisations which have operated lawfully for many years in the United Kingdom. I wish the Government would go a little further in what they are prepared to say. Otherwise the Committee is in some difficulty.

9 p.m.

Lord Bassam of Brighton

I have listened to the points raised by Members of the Committee. As I understand the argument, if we did not accept the amendments we would somehow end up locking up General de Chastelain and the noble Lord. Lord Alderdice. We would interfere with well respected organisations such as International Alert which seek to resolve conflict. We would be exercising heavy and draconian powers if such absurd situations were in some way to come to light.

The noble Lord, Lord Lester, put his finger on the point. He referred back to the words of my right honourable friend the Home Secretary. Of course, the Director of Public Prosecutions will exercise carefully and sensitively his discretion on how this part of the legislation will operate. But if we accepted the amendments it would delete a potentially serious offence of arranging or managing, or assisting in arranging or managing, a meeting by a person who knows that the meeting is to be addressed, by a person who belongs or professes to belong to a proscribed organisation". In other words, someone acts as a facilitator to provide a proscribed organisation—we only proscribe organisations in extremis—with that important element of support, the oxygen of publicity.

I am confident that noble Lords, in particular those on the Liberal Democrat Benches, do not wish to do that. I believe that they make the clause more draconian than it is. We cannot tell how the provision will work until it is used but I am confident that it will be used sparingly. I am well aware of the arguments raised by Justice: that the clause should be remodelled because it could have potential to hinder political debate and freedom of assembly. But that is not the Government's intention.

In another place we undertook to consider the "addressing" issue. We sought to find some way to construe the term to cover mere speaking. We have considered the point carefully. Clause 12(4) makes it clear that meetings may be private or public and may involve three or more people. So "sharing a platform"—it is one of the terms suggested—could give the wrong flavour.

We have a difficult balance to strike. We have perhaps been cautious in the exercise of the powers contained in the clause. But we believe that we have got the balance right. But where a prosecution is brought under Clause 12, it will be open to any accused to raise any convention rights in his defence under Section 7(1)(b) of the Human Rights Act 1998 which will have come fully into force.

I doubt whether the noble Lords who tabled the amendments will be persuaded by what I have said. However, in giving the issue their careful consideration, they perhaps seek to view the clauses in their worst light. I am confident that the clauses will not be interpreted and used in the way suggested. We must ensure that we get matters right in the provisions dealing with proscribed organisations.

I hope that the noble Lord will reflect on what I have said and withdraw the amendment.

Lord Goodhart

I accept that in all probability the Director of Public Prosecutions would exercise his discretion in such a way as to prevent anyone who acts broadly in the public interest in meeting with members of a terrorist organisation from being prosecuted under Clause 12. However, no one who does that in the public interest should be forced to rely on the exercise of a discretion. The fact that someone is placed potentially in the position of having to rely on the DPP's discretion in order to avoid a prosecution shows fairly clearly, I believe, that there is something wrong with Clause 12.

We shall not press the amendment to a vote on this occasion, but I believe that it is almost certainly an issue that we shall bring back on Report. I hope that on that occasion the Minister will be able to enlarge on why he believes that, as it now stands, it is compliant with the convention rights under the Human Rights Act. However, for the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 not moved.]

Clause 12 agreed to.

Clause 13 [Uniform]:

Lord Skelmersdale moved Amendment No. 37: Page 7, line 29, leave out subsection (2).

The noble Lord said: I tabled this amendment in order to ask a question to which I suspect I should know the answer and it should not take very long. Clause 13(2) states: A constable in Scotland may arrest a person without a warrant …

Why only in Scotland, or is it automatically a police power in England? I beg to move.

Lord Bach

The purpose of subsection (2) is to give a constable in Scotland power to arrest without a warrant where he suspects that a person is guilty of an offence under Clause 13(1). This is not a novel provision for Scotland. It simply repeats subsection (2) of Section 3 of the Prevention of Terrorism (Temporary Provisions) Act 1989 and, before that, comparable provisions in earlier prevention of terrorism Acts.

Express provision is required for Scotland since, at common law, the power of a constable to arrest without a warrant for statutory offences is not clear. We believe that subsection (2) provides the necessary clarity. This can be compared with the fact that no such provision is required in Clause 13 for England and Wales because, under the general arrest provisions of Section 25 of the Police and Criminal Evidence Act 1984, a constable would have the power to arrest without a warrant. As the noble Lord knows, PACE does not apply to Scotland.

Therefore, subsection (2) is necessary for Scotland in order to put beyond doubt a Scottish constable's powers of arrest and to ensure consistency with the position in England and Wales.

Lord Skelmersdale

I am grateful to the Minister for that answer. As I said, I should have known the answer but did not. However, it raises a more general point upon which I would ask the noble Lord and, indeed, the whole of his department to reflect. Periodically, this provision appears in Bills. Would it not be far more sensible if one changed the whole of Scottish law to take account of that? I do not expect an answer now. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 38: Page 7, line 32, after ("liable") insert— ("(a) on conviction on indictment, to imprisonment for a term not exceeding one year, or a tine, or both, or (b)").

The noble Lord said: Clause 13 concerns the wearing of uniform or other articles of clothing, and so on, by terrorists. This is deeply offensive. It takes place sometimes at funerals and sometimes on other occasions. It is particularly offensive to victims of the organisations concerned.

So far as concerns the court case which should follow if someone is accused of the offence, in putting the clause into the Bill the Government have a choice of following either the Prevention of Terrorism Act, which provides only for summary conviction in such cases, or of following the emergency provisions Act, which provides that in important and repeated cases the accused can be charged on indictment. It seemed to me that it was at least worth asking why they had followed the PTA instead of the EPA and to suggest that they might like to preserve the stronger penalty in this case, as they have done in several of the preceding clauses which relate to other similar offences. I beg to move.

Lord Avebury

Once again, the noble Lord, Lord Cope, has underlined the point that I have been seeking to make: that is, what was suitable and appropriate in the conditions in Northern Ireland may no longer be so in a Bill that extends the scope of its provisions to a large number of organisations which in future are to be proscribed by the Secretary of State and of which we have no knowledge at the moment.

I accept entirely what the noble Lord, Lord Cope, said about the offensiveness of using symbols and colours in such a way as to insult the victims of terrorism in Northern Ireland. When we consider what happens in the rest of the United Kingdom, what we are saying is that an organisation may be banned here and that from that point onwards a person who wears or displays an article that arouses reasonable suspicion even I hat he is a member is liable to imprisonment for a term not exceeding six months, which the noble Lord, Lord Cope, wishes to raise to one year.

I mention the PPK at random—it happens to be one of those organisations treated as terrorists by the United States, and I keep referring back to the State Department list because we have no other way of knowing what organisations the Secretary of State may proscribe in the future—and considering the disapproval of the PPK which has been evinced by the Government in the past, it might well be a prime candidate for proscribing. Let us suppose that a person does have an article such as a hold-all which displays the PM(colours and he attends a meeting which discusses Kurdish matters. The police, viewing him at the meeting and deciding that there are circumstances which arouse reasonable suspicion that he is a member or supporter of a proscribed organisation by reason of the fact that he is displaying its colours—even though it might be something he bought in a shop that happens to coincide with the colours of the PPK—put two and two together. They have reasonable suspicion from his display of that article that he is a member of the proscribed organisation. He is committing an offence that could result in his imprisonment for six months or, as the noble Lord, Lord Cope, would have it, a year. I think that what may be appropriate in the circumstances in Northern Ireland is not, from now onwards, going to be appropriate in a situation where a number of organisations, which are deemed to be terrorist from an international point of view, become proscribed by the Secretary of State.

9.15 p.m.

Lord Bach

Proscribed organisations are, to use a cliche, "beyond the pale". They are out of bounds. That is why they have been made proscribed organisations. That is the answer to the point made by the noble Lord, Lord Avebury. It does not matter whether they come from Northern Ireland or, in the future, from anywhere else. Of course, if the person involved could be prosecuted on the basis that carrying the article aroused reasonable suspicion that he was a member or supporter of a proscribed organisation, and that person, having been charged and brought before a court and having pleaded guilty or having been found guilty, then argued that he did not realise it, it is very unlikely, it seems to me, if the court accepted the explanation, that the person would go anywhere near a prison. One has to remember that what we are talking about in this amendment is the maximum sentence and not the minimum sentence because any sentence is at large less than the maximum for an offence like this.

I turn to the amendment we are discussing. I agree with the noble Lord, Lord Cope, that this clause replicates an offence which appears in the two Acts about which we have talked so much, the prevention of terrorism Act and the emergency provisions Act. The prevention of terrorism Act version of the offence, which has effect in Great Britain, is a summary-only offence with the maximum six months imprisonment. The emergency provisions Act version, which has effect in Northern Ireland., is an either-way offence with maximum penalty on indictment of a year's imprisonment.

In consolidating our anti-terrorist legislation, the Government clearly had to address the issue that an identical offence had a different maximum penalty under different legislation. Were we to go up or down? Everyone agrees that the wearing of such garments or wearing, carrying or displaying such an article is deeply offensive and, at its worst, calls for a custodial sentence. No one in your Lordships' House. I believe, has argued against that.

But I need to point out that this offence has been used only rarely in recent years. Records suggest that there have been only two prosecutions in Northern Ireland since 1991, both of which led to convictions, and there have been no prosecutions in Great Britain for the same period. That is not to suggest that the offence is not important. There are indications that its very existence has a deterrent effect. We believe it is right that those who wear clothing or insignia linked directly to a proscribed group should remain liable to prosecution.

But given the infrequent use of the offence, it would be difficult to argue that there is a strong case for setting the penalty at a higher level. There is certainly no suggestion that a lower penalty level has been an insufficient deterrent. I remind the Committee that that applies to Great Britain where there have been no prosecutions. That would usually be the reason to increase a penalty; that it had a greater deterrent effect.

We are not persuaded that the higher penalty is required. The arguments are nicely balanced. We do not say that it was an easy decision to reach. But we believe that we made the right decision and that six months is appropriate as a maximum for this unpleasant offence.

Having heard our reasons, I hope that the noble Lord will consider what we have said and will withdraw the amendment.

Lord Cope of Berkeley

As the Minister emphasised, the importance of this offence is as much in its deterrent effect as anything. It is because of its deterrent effect that the offenders are difficult to catch in the act. They do their best to make sure that they are not caught in the act. They appear sometimes in Northern Ireland very briefly—at funerals, for example.

However, as the Minister acknowledged, the maximum penalty has been reduced in Northern Ireland in attempt to level out the matter. I am not sure that I personally agree with that. The noble Lord did not give a reason but said that it is a question of balance. Nevertheless, I shall not pursue the issue at this stage and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

Lord Bach

I beg to move that the House do now resume.

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

House resumed.

House adjourned at twenty-two minutes past nine o'clock.