Lords Sitting of 23 May 2000

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers— Read by the Lord Bishop of Hereford.

Lord Parekh
Bhikhu Chhotalal Parekh, Esquire, having been created Baron Parekh, of Kingston upon Hull in the East Riding of Yorkshire, for life Was, in his robes, introduced between the Baroness Blackstone and the Lord Plant of Highfield, and made the solemn Affirmation.
Baroness Walmsley
Joan Margaret Walmsley, having been created Baroness Walmsley, of West Derby in the County of Merseyside, for life—Was, in her robes, introduced between the Lord McNally and the Lord Rennard.

Higher Education: Recruitment and Retention
2.47 p.m.
Lord McCarthyasked Her Majesty's Government:
What action they propose to take to deal with problems of recruitment and retention in higher education institutions following independent reports by Industrial Relations Services and the Office of Manpower Economics.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, higher education institutions are independent bodies which appoint and retain the staff they need to run their academic programmes. For their part, the Government plan to increase funding for the higher education sector by over £1 billion over the four years up to 2001–02—a real terms increase of 11 per cent. The Government have begun to consider the level of public expenditure on higher education and other areas in 2002 and beyond. The pay of higher education staff will clearly be a factor, but we cannot prejudge the outcome.
Lord McCarthy: My Lords, I thank the Minister for her helpful Answer and in particular for the announcement that increased sums of money will be made available. However, the Minister has not denied the fact that, since 1997, three independent reports have been published about the growing crisis in retention and recruitment in the higher education sector. Overall levels of turnover are rising. The situation is worse in the prestige universities and is worse in certain critical subjects. Furthermore, the situation will deteriorate even further because 30 per cent of dons are now over 50
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years old. Does the Minister agree that unless something is done immediately, we shall face the kind of crisis that we have seen in nursing, with doctors in medicine, and in the police service? Will the Government act quickly to alleviate this situation, given that they seem to realise that there is a problem?
Baroness Blackstone: My Lords, I readily accept that the pay of university teachers has not grown as much as that of many other professional groups in the public sector over the past 10 to 15 years. As I said in my earlier reply, this is something that is featuring in discussions about public expenditure after the year 2002. My noble friend describes the position at the moment as a crisis. I do not accept that we are in a crisis position. I do accept that there are some problems with recruitment, particularly in certain subject areas. However, on the whole, retention has held up quite well right across the system.
Lord Quirk: My Lords, none the less, given that it is to the universities that we look to supply our schoolteachers, is it not a matter for special concern that some areas in which it is found most difficult to recruit teachers for universities, notably maths and the sciences, ominously coincide with areas in which it is very difficult to recruit teachers for secondary schools? How will the Government address what appears to be a vicious spiral?
Baroness Blackstone: My Lords, it is not the case that maths and science are the areas where it is most difficult to recruit academic staff. The most difficult areas are those where there is big competition with the private sector. Computer science is one of the most difficult; there are some problems in management, and in engineering. There are small difficulties in some scientific areas, but it is not so hard to recruit in those areas as in the three that I have cited. The noble Lord looks puzzled, but I have just looked at the statistics in the document concerned.
Baroness Carnegy of Lour: My Lords, does the Minister agree that the quality of a university depends very much on the quality of its professors? Does she accept the indication in the report referred to by the noble Lord that many gifted young academics are not applying for chairs in universities because of he low pay? Are the Government satisfied that that is not happening; and if it is happening, will not their strategy for higher education be considerably damaged?
Baroness Blackstone: My Lords, I entirely agree with the noble Baroness that the quality not only of professors but of all academic staff is vital to our universities if we are to retain our world-class position. I am not clear why the noble Baroness thinks that young academics are not applying for positions as professors. After all, that is a route not only to greater responsibility and the rewards that go with it, but also

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to higher pay. My experience is that most young academics are only too keen to attain senior positions in our universities.
Lord Smith of Clifton: My Lords, pending an overall pay review, will the Minister consider the possibility in the shortage subjects of advanced fellowships being offered which are much more competitive with private industry and offer the chance of a competitive salary?
Baroness Blackstone: My Lords, it is for the universities to decide how they want to spend their resources. There is nothing to prevent universities offering advanced fellowships in any subject, particularly in shortage subjects. The pay range for professors is wide. It is perfectly possible for a university to offer a substantial salary to someone whom it particularly wants to recruit, possibly from overseas, in a subject area where it is hard to recruit in the UK.
Baroness Warwick of Undercliffe: My Lords, I acknowledge that all institutions are experiencing recruitment problems in specific specialisms, but will my noble friend agree that there are particular problems in attracting junior staff in subject areas where academic starting salaries lag behind those for new graduates in the private sector? Anecdotally, many such examples come to my attention. I declare an interest as chief executive of the Committee of Vice-Chancellors and Principals. I welcome what my noble friend has said about the approach in the forthcoming Comprehensive Spending Review. However, given the Government's target of 50 per cent of young people entering higher education by age 30 within the next decade, will she ensure that the Treasury acknowledges that recruitment and retention of quality staff is vital to the sector?
Baroness Blackstone: My Lords, I cannot ensure that the Treasury does anything. However, I shall personally do my best to pass on to my colleagues in the Treasury the importance of having academic staff of the highest possible quality in our universities. Pay is a factor, although by no means the only one. Many other issues arise when young people decide what kind of career they want to pursue. There are, I am glad to say, numbers of highly intelligent young people who believe that this is a worthwhile career.
Baroness Blatch: My Lords, every time the noble Baroness answers a question on this subject, she says that the response to the Bett report is a matter for the universities themselves. In the light of her original Answer, is the Minister saying that the pay factor and the response to the Bett report will be specifically taken into account in the Comprehensive Spending Review?
Baroness Blackstone: My Lords, there is nothing in conflict with what I have said. Decisions regarding university teachers' pay are not made nationally. There is no pay review for academic staff; decisions are made
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in negotiation between university management and the trade unions representing those staff. But, of course, there is nothing to stop me and my colleagues in the department pointing out to the Treasury in a spending review that this factor needs to be taken into account when deciding the allocation of public spending.

Parliament Square
2.56 p.m.
Lord Watson of Richmondasked Her Majesty's Government:
Whether they will encourage the Royal Parks Agency to ensure that Parliament Square does not become a site for permanent displays.
Lord McIntosh of Haringey: My Lords, the policy of the Royal Parks Agency is not to allow grassed areas of Parliament Square, for which it has responsibility, to be used as a site for displays. Later this year, the Royal Parks Agency responsibility for Parliament Square will transfer to the Mayor of London.
Lord Watson of Richmond: My Lords, I am grateful to the Minister for that reply. Will he accept that the Question stems from a fear that, if displays become virtually permanent in Parliament Square—albeit that the cause may be virtuous, and those in favour of pigs will think it extremely virtuous—it will place the idea in the minds of people whose purpose is not benign and who, as we saw on 1st May, may be vicious, that in Parliament Square anything goes? The Minister has referred to the powers that will be transferred to the new Mayor of London. In that context, is he aware that, under the GLA Act, the powers that pass to the Mayor in this regard come from the 1949 Parliament Square improvement legislation, which includes the obligation to,
"lay out the new central garden in Parliament Square".
While noble Lords will be aware of the deep reservations felt by Ministers in some regards about the new Mayor of London, perhaps in this regard at least they will offer him all power to his elbow.
Lord McIntosh of Haringey: My Lords, I must be very careful what I say about pigs in the presence of my noble friend the Chief Whip—
Noble Lords: Oh!
Lord McIntosh of Haringey: My Lords, I must be very careful what I say about pig farmers! It is true, and we agree with the noble Lord, that the lengthy demonstration in favour of pig farmers and "Buy a Pig" in Parliament Square is not a good example to leave to the Mayor of London. It was a chapter of accidents. The Metropolitan Police gave temporary permission without informing the Royal Parks Agency. The Royal Parks Agency decided not to evict the farmers and the pig, for reasons which will readily be sympathised with. When they left temporarily for

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the demonstrations on 1st May for their own safety, the Royal Parks Agency attempted to get a swine removal order from the Corporation of the City of London, which was denied. When it failed, the farmers and the pig came back again onto Westminster City Council land, which is not the responsibility of the Royal Parks Agency but of the Metropolitan Police. I do not believe that any of this is very serious, but the policy of successive governments that there should not be demonstrations in Parliament Square must be maintained in the future.
Baroness Trumpington: My Lords, can the Minister say why this matter falls within the responsibility of the Royal Parks? Why cannot an order be made by the Commons that Parliament Square, which is after all a prime tourist site, should not be defaced? Is the Minister also aware that I find it objectionable to see large political notices hung from the railings at the rear of St Margaret's and Westminster Abbey?
Lord McIntosh of Haringey: My Lords, the question of responsibility for Parliament Square and Trafalgar Square goes back to the previous century, and the transfer of responsibility to the Mayor of London is simply in line with precedent. If the noble Baroness refers to the railings that I have in mind, they exist because at that point the tunnel which serves the District Line comes very close to the surface. Although Parliament Square was strengthened to provide for crowds in that area, it is not sufficiently reinforced to take the weight of vehicles. For that reason railings are required.
Lord Richard: My Lords, can my noble friend say what happened to the pig in Parliament Square? Some of us have become quite attached to the pig and are anxious that its wellbeing should be properly safeguarded. Will my noble friend give an undertaking that he will pass on to the new Mayor of London the concerns of this House about the welfare of this noble animal?
Lord McIntosh of Haringey: My Lords, I believe that my noble friend is being slightly anthropomorphic. Parliament Square had a succession of pigs rather than a single animal. I do not believe that we can become sentimental about them. I understand that the last pig went off to be adopted.
Baroness Anelay of St Johns: My Lords, when the Government transferred to the Mayor of London power over demonstrations in Parliament Square they hardly expected that they would hand it on a plate to Ken Livingstone. However, as that is the case, if the Mayor ignores the Government's guidelines about what should and should not happen in the square, what kind of sanctions could they impose upon him?
Lord McIntosh of Haringey: My Lords, the Mayor of London is subject to the London Government Act 1999. That Act provides that the Secretary of State issues guidance to the Mayor about Trafalgar Square
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and Parliament Square. That guidance is a statement of policy, including, self-evidently, that there should not be demonstrations in Parliament Square. The Mayor must have regard to that guidance; if not, he, or she breaks the provisions of the London Government Act.
Baroness Miller of Chilthorne Domer: My Lords, does the Minister agree that, although there was a succession of pigs, nevertheless they have done a useful job in bringing rural and farming issues into the heart of the urban community so that people know from where their bacon comes? Do the Government have any proposals to tie together more closely rural and urban concerns—for example, the urban White Paper? What support are the Government giving to city farms?
Lord McIntosh of Haringey: My Lords, the noble Baroness strays very far from the original Question. I do not believe that it is appropriate for me, with 15 minutes to go, to venture into a disquisition on urban and rural policy.

"Mixer Companies": Tax Changes
3.3 p.m.
Lord Northbrookasked Her Majesty's Government:
What representations they have received concerning the Budget proposals for changes to the taxation of "mixer companies".
Lord McIntosh of Haringey: My Lords, the Government have received representations about the likely impact of the proposed changes and held a number of meetings with companies, tax advisers and representative bodies such as the Confederation of British Industry.
Lord Northbrook: My Lords, I thank the Minister for his reply. Can he explain, and justify, why the Treasury's estimate of the additional cost to companies of this measure is so different from that of the companies themselves and their advisers?
Lord McIntosh of Haringey: My Lords, I believe that the boot is on the other foot. The estimate of the Treasury, which is well documented and explicit, is based on a re-analysis of real claims and the Red Book. By contrast, the claims made apparently on behalf of those in industry who say that they will be affected vary enormously. PricewaterhouseCoopers said initially that it had a single client who would lose £1 billion. It then said that it had 24 clients who would in total lose £1.9 billion. The CBI did a survey and came up with the figure of £740 million. The Treasury estimate has remained constant at between £150 and £175 million. Unless those who seek to attack the Treasury get their act together I do not believe that we should take them too seriously.
Lord Jenkin of Roding: My Lords, can the Minister say why the Government rejected the initial sensible proposal of the Inland Revenue to the effect that pooling—sometimes referred to as onshore pooling—should continue to be allowed so that companies can get the benefit of double tax relief? They do not need to go the whole way and abolish pooling altogether.
Lord McIntosh of Haringey: My Lords, I shall certainly not open up any claimed disagreement between the Government and the Inland Revenue. The Inland Revenue is part of government. These proposals have been in the public domain for about a year. The first discussion paper appeared 12 months ago. It is astonishing that those who object to this very modest removal of subsidy from the United Kingdom to high level tax regimes and the restoration of a level playing field cannot get their act together and decide on what basis they oppose the Government's proposals.
Lord Clark of Kempston: My Lords, does the Minister agree that if this proposal is implemented it will be another tax by stealth, proving that the statement by the Chancellor of the Exchequer that during his stewardship taxation has not increased is false?
Lord McIntosh of Haringey: My Lords, I could not disagree more with the noble Lord. This must be looked at in the light of all corporate tax changes. Among the major industrialised countries we have the lowest rate of corporation tax, and we have abolished advance corporation tax and stamp duty on intellectual property. We have provided tax relief for the purchase of goodwill and also abolished withholding tax on international bonds. In those circumstances, nothing that the noble Lord says about corporate taxation can be dignified by the term "stealth taxes".
Lord Hughes of Woodside: My Lords, does my noble friend agree that if this matter has been under discussion for over 12 months it cannot be a stealth tax?
Lord McIntosh of Haringey: My Lords, my noble friend has a very good point.
Lord Newby: My Lords, can the Minister confirm that the Treasury has not finally closed the door to discussions on this matter and there is still scope for a compromise whereby additional tax may be raised but without hitting companies to the extent now claimed?
Lord McIntosh of Haringey: My Lords, the Treasury has never had a closed mind to these matters; otherwise, we would not have announced at the beginning of this month a deferral of nine months in the implementation of this long overdue measure.
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That shows that we listen to representations. As to whether we shall listen to representations of the kind made by the noble Lord, that is another matter.

Prostate Cancer
3.7 p.m.
Baroness Gardner of Parkesasked Her Majesty's Government:
What research into prostate cancer they are supporting.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, the Government give high priority to cancer research and already support a wide range of research into prostate cancer. We actively seek to support further studies.
Baroness Gardner of Parkes: My Lords, I thank the Minister for that reply. Will the noble Lord consider the comparison between prostate cancer and breast cancer, which is a condition that largely affects females? I hear someone say that breast cancer affects only women, which is not correct. The campaign in the case of breast cancer has been so successful that whereas in the 30 years up to 1987 there was a 26 per cent rise in the death rate, in the past 10 years there has been a one-third reduction. Does the noble Lord agree that it is not only a question of finding the right cure, which is very important, but of obtaining an early diagnosis? Further, does the Minister agree that, as a result of public policy, women are more aware than men of the need for examination and screening? Finally, can the Minister tell the House of research which will increase the awareness of the male population into the possibilities of early diagnosis of prostate cancer?
Lord Hunt of Kings Heath: My Lords, the noble Baroness raises an important point: more generally, the issue of men's interest in their own health. There is no doubt that we need to do everything we can to encourage men to take an active interest. That is why the Government announced a series of measures on 1st March. We need to do as much as we can to encourage men to use our health services and to look closely at matters that affect their own health.
One problem is that the current test which can help to identify prostate cancer is not totally accurate. That is an inhibition in relation to detecting the disease at an early stage.
Lord Acton: My Lords, at what age should men start taking these inaccurate tests?
Lord Hunt of Kings Heath: My Lords, men can take the test at whatever age they choose. The disease affects men mainly over the age of 65.
Lord Walton of Detchant: My Lords, as regards the Minister's last statement in answer to the noble

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Baroness, does he accept that while many urologists in this country and abroad believe that estimation of the prostate-specific antigen in blood is a mechanism useful in screening, others are very concerned that the test produces a good many false positives which give rise to needless anxiety? Is the noble Lord aware of recent research strongly suggesting that lycopene, an important constituent of tomatoes, has a powerful, protective effect against prostate cancer?
Lord Hunt of Kings Heath: My Lords, I am most grateful to the noble Lord for that information. He is absolutely right: PSA levels in blood can be raised by several other conditions which affect the prostate gland. I understand that of every three healthy men who have a high PSA level, only one has prostate cancer. We also have to bear in mind the side effects of treatment: for instance, of 1,000 men having surgical treatment, between three and 20 will die of that treatment; between 200 and 850 will experience impotence; and between 10 and 70 will develop urinary incontinence. That puts into perspective the issue over detection.
Lord Ezra: My Lords, despite the Minister's remarks about the PSA test, does he agree that the procedure is widely recommended by medical practitioners and widely practised by a large number of men including to my certain knowledge Members of your Lordships' House, including myself? Is that advice wrong? If so, it is a very serious matter. Prostate cancer is one of the most serious diseases from which men suffer. When will the Government be in a position to make clear where the PSA test stands? If they feel that it is deficient, what alternative is recommended?
Lord Hunt of Kings Heath: My Lords, the heart of the issue is that individual men have the relevant information on which they can decide whether to take the test and, subsequently, treatment. I recommend the information leaflet produced by York University in an effectiveness bulletin of two years ago which sets out clearly the choices, options and effects of the test and treatment. In addition, we are committed to spending considerable resources in relation to research and encouraging more research projects to come forward. At present we have a programme of research amounting to £1.5 million. Recently the Government announced another £1 million for further research.
Baroness Knight of Collingtree: My Lords, on 3rd May the Minister told this House that an action plan was to be developed. He has not mentioned it although he promised the House that the action plan would be available. Can he give us further news?
Lord Hunt of Kings Heath: My Lords, I am happy to provide information. The action plan is not complete. It is currently being prepared. As soon as it is prepared, we shall wish to publish it.
Baroness Masham of Ilton: My Lords, apart from eating tomatoes, can men take any other action to help to prevent prostate cancer?
Lord Hunt of Kings Heath: My Lords, I am not aware of any specific preventive "tips", along the lines
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of the suggestion of the noble Lord, Lord Walton. It is clear that we need to undertake further research in order to have an effective test for early detection. We are funding in this country a number of research programmes to help to achieve that. At present we do not know enough about the impact of testing and detection. We do know that treatment programmes can have many adverse side effects. We also know that although prostate cancer is an extremely serious disease and can be a killer, many men who have it do not die from it and are not affected by it. That is what makes the treatment position so difficult.
Lord McColl of Dulwich: My Lords, will the Minister make it clear that although the PSA test has its problems, the medical profession would never dream of treating somebody for cancer of the prostate unless there had been a biopsy? The PSA test may be unreliable, but not the biopsies.
Lord Hunt of Kings Heath: My Lords, I understand that point. If a man had a high PSA test, he would probably be offered further investigations including a biopsy. The question then is whether or not treatment should take place. As the noble Lord will know, there are various options ranging from what one might describe as careful watching to surgical or radiation therapy. But at the stage when the disease is diagnosed it is important that the individual concerned is fully aware of the side effects of some of the treatments on offer.
Lord Clement-Jones: My Lords, the Minister will have noted the disquiet over his statements on the PSA, test. Will the noble Lord undertake that the National Screening Committee will publish a full report on the PSA test and its reasons for not recommending that it should be introduced into a national screening programme? Furthermore, will he undertake that the new urine test being developed in Philadelphia will be reviewed by the National Screening Committee?
Lord Hunt of Kings Heath: My Lords, I can give the assurance that any new tests which are being developed anywhere in the world will be kept under close review. The noble Lord is right to remind the House, as I did in our debate three weeks ago, that the National Screening Committee (which advises the health department) has said that, on existing evidence, a national screening programme for prostate cancer would not be justified. I am happy to place in the Library as much information as we can about the reasons for that advice.

Business
3.17 p.m.
Lord Carter: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lord Burlison will, with the leave of the House, repeat a Statement which is being made in another place on Sierra Leone.

European Parliamentary Elections Bill [H.L.]
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I beg to introduce a Bill to consolidate the European Parliamentary Elections Acts 1978, 1993 and 1999. I beg to move that this Bill be now read a first time.
Moved, that the Bill be now read a first time.—(The Lord Chancellor.)
On Question, Bill read a first time, and to be printed.

Health Service Commissioners (Amendment) Bill
Brought from the Commons; read a first time, and to be printed.
Royal Parks (Trading) Bill
Brought from the Commons; read a first time, and to be printed.
Sea Fishing Grants (Charges) Bill
Brought from the Commons, read a first time, and to be printed.
Television Licences (Disclosure of Information) Bill
Brought from the Commons; read a first time, and to be printed.

Insolvency Bill [H.L.]
Lord Carter: My Lords, I beg to move the Motion standing in the name of my noble friend on the Order Paper.
Moved, That the order of commitment of 4th April be discharged and that the Bill be committed to a Grand Committee.—(Lord Carter.)
On Question, Motion agreed to.

Terrorism Bill
3.20 p.m.
The Parliamentary Under-Secretary of State (Lord Bassam of Brighton): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
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Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE CHAIRMAN OF COMMITTEES in the Chair.]
Clause 14 agreed to.
Clause 15 [Fund-raising]:
Lord Cope of Berkeleymoved Amendment No. 39:
Page 8, line 26, at end insert (", including a service rendered or to be rendered").
The noble Lord said: I have tabled a query in the form of an amendment. Clause 15 provides for the offence of fund-raising for terrorism or for terrorist groups, which is an extremely serious offence. Subsection (4) provides that it is an offence to provide money to terrorists even in exchange for consideration.
Members of the Committee will be well aware that terrorist organisations all over the world and on both sides of the divide in Northern Ireland provide all kinds of services in apparent exchange for money. Sometimes protection is described as insurance and it is a form of service. In that case, the service may be a lack of beatings. The question is whether such a lack of action is covered by the word "consideration". Is it valid that consideration includes the giving of a service?
There are many other rackets in Northern Ireland. Black taxis, drinking clubs and so forth come to mind. They are valuable sources of money for the terrorist organisations concerned and I believe that such financial considerations there and in other parts of the world are part of the momentum of terrorism.
The amendment is brief and seeks to ensure that all types of consideration, including the lack of action, are covered by the legislation. I beg to move.
Lord Bassam of Brighton: I am grateful to the noble Lord for his query and I am sure that I can help him. We do not believe that the amendment is necessary. Clause 15 sets out offences of inviting another to provide money or other property, receiving money or other property, and providing money or other property, for the purposes of terrorism. Subsection (4) clarifies that the provision of money or other property includes it being given, lent or otherwise made available, whether or not for consideration.
The expression "whether or not for consideration" is taken from the corresponding provisions of the Prevention of Terrorism (Temporary Provisions) Act 1989. It means that if someone is accused of, for example, lending money for the purposes of terrorism, it does not matter whether the supposed terrorist was expected to pay interest on the loan.
Of course, "consideration" could be in the conventional form of interest payable on a loan or it could be in the form of services rendered. If I were to lend the noble Lord, Lord Cope, an umbrella or a coat on condition that he carry my bag, I am sure that would count as a consideration. I do not see any need

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to set that principle out on the face of the Bill. Of course, the whole point of the provision is that the offences apply whether or not "consideration" is involved.
I trust that with that explanation the noble Lord will feel able to withdraw his amendment.
6.45 p.m.
Lord Cope of Berkeley: The next time I am caught in the rain I shall look out for the Minister in the hope of being able to borrow an umbrella! In the light of his explanation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 agreed to.
On Question, Whether Clause 16 shall stand part of the Bill?
Lord Avebury: Perhaps I may comment on Clause 16 and refer to the parallel position in Clause 15. In both clauses an offence is created by the mere intention to do something. The Northern Ireland Human Rights Commission has written to us stating that that constitutes a form of thought crime. One is saying that if a person at any moment intends to do something, he is committing an offence at that moment notwithstanding the fact that the intention is never carried into effect. The offence resembles a class of offences known as inchoate offences, all of which were repealed in the late 1970s. I refer in particular to the offence of sus, where someone was suspected of being about to commit an offence and could be prosecuted and sent to prison. After a substantial public opinion campaign, the Government agreed to withdraw it on the ground that what was in a person's mind could not constitute an offence unless it were carried into effect.
In this Bill, we are reintroducing a form of sus—a form of inchoate offence—which is never carried into effect. The intention may long have disappeared, long before the case gets to court. The Northern Ireland Human Rights Commission is right to have drawn our attention to the provision and I hope that the Minister will consider it before the Report stage. I have not had time to formulate an amendment, but I am giving the Minister notice that if he does not do something about it before the Report stage, we certainly shall.
Earl Russell: Perhaps I may make a brief comment in support of my noble friend. Some of us probably remember the old fashioned telephone boxes with button A and button B. I once heard of a case in a juvenile court where people were prosecuted for loitering with intent to press button B. The magistrates threw it out. Perhaps we should follow their example.
Lord Bassam of Brighton: I remember pressing buttons A and B. I think that the last time was when I was trying to contact a girlfriend—and that must have been a very long time ago!
As regards Clause 16, terrorism and terrorism offences are often about intent. The discovery of intent is very important and is the reason why in extreme and
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exceptional circumstances we need to have exceptional powers to tackle the problems with which we are grappling.
I understand the anxieties of those who, like us in government, are properly concerned about human rights issues. But terrorism is about serious offences and for that reason the term "intended" appears in Clause 16. The offences in that clause are based on those in Sections 9(1)(c) and 10(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act and we believe—and other governments have believed—that they are essential to our aim of depriving terrorists of their funds, property and means to carry out their trade.
Lord Avebury: As the Minister has mentioned a similar provision in the Prevention of Terrorism (Temporary Provisions) Act, can he say how many prosecutions have been successfully brought under that provision?
Lord Bassam of Brighton: I should like to be able to give the noble Lord that information this afternoon but am unable to do so. I believe that it is worth repeating what I said earlier with regard to this particular subsection being relied upon only in extreme situations. Terrorism is an extreme activity and, of course, the power would be used only when appropriate.
I believe that the way in which the legislation has been monitored and reported upon in the past has, by and large, satisfied Members of your Lordships' House. We intend to continue fully to satisfy inspections and to monitor the legislation closely. I understand the noble Lord's concern about intention. However, we rely on the argument that these types of power and provision are essential for the effective operation of the legislation.
I have now been passed a useful paper concerning the offence to which I believe the noble Lord draws our attention; that is, making available money or property for use in connection with terrorism. A total of seven charges have been raised under the Prevention of Terrorism (Temporary Provisions) Acts 1984 and 1989. Four cases were not proceeded with and in three the defendants were found guilty. One of the sentences was suspended and in two cases imprisonment was effected for over one year and up to five years. Therefore, the legislation has played a significant and important part, thankfully in very few and restricted circumstances, in much the same way as I have described to the noble Lord in the past few minutes.
Lord Avebury: I am most grateful to the Minister for giving those figures. I believe that they help the Committee in its consideration of these particular provisions. What he has just told the Committee is that people have been convicted under the Prevention of Terrorism Act not for the intention of transferring money to terrorists but for actually transferring money to terrorists. I have no quarrel with that. If one gives money to terrorist organisations, one must be liable to prosecution. However, this Bill states that it is a crime

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to intend to give the money when one has not passed cash over. I believe that that is thought crime. I ask the Minister again whether he can tell me of a single case where a person has been convicted of the intention of, as opposed to actually, handing money over.
Lord Bassam of Brighton: I well understand the point that the noble Lord makes. However, if we simply wait until an act has been carried out and then seek to prevent it, we shall be in a rather ludicrous situation. Therefore, intention is important, as is a reasonable cause for suspicion, also referred to in Clause 16(2)(b). We believe that those matters are and have been essential in preventing the very acts of terrorism. In order to prevent things, one must understand people's intention. We consider that to be extremely important. Therefore, the clause has, and will continue to have, a value.
With regard to the legislation and the way in which it has worked, the cases that I have described in which a person has been caught making money available are, thankfully, narrow and limited in number. However, we believe that it is essential that the powers are in place so that we can prevent terrorism. After all, it is much better to prevent terrorism than to try to chase after terrorists after they have committed some awful act.
Clause 16 agreed to.
Clause 17 agreed to.
Clause 18 [Money laundering]:
Lord Cope of Berkeleymoved Amendment No. 39A:
Page 8, line 40, after ("control") insert ("by himself or ").
The noble Lord said: Clause 18 deals with money laundering and makes it an offence for someone—for example, a banker—to help terrorists to retain or control money. However, it was suggested to me that the wording of the clause does not make it an offence for the terrorist who launders the money, only for the banker or other person who handles it. Of course, I realise that the terrorist treasurer may well be guilty and presumably will be guilty under Clauses 16 or 17. However, it struck me as odd that only the banker would be charged, for example, in respect of an agreement to smuggle money out of the jurisdiction for a terrorist purpose. Is that a correct reading and is that what is intended? I beg to move.
Lord Bassam of Brighton: We well appreciate the spirit in which the amendment is moved. It appears to emphasise that a person should not enter into an arrangement to facilitate the retention or control "by himself" of terrorist property. I agree that that should not be permitted. However, as we see it, we do not believe that the amendment is required because that matter is already covered by the offence as it stands.
Clause 18 deals with arrangements by which the retention or control of terrorist property by one person is facilitated by another. The clause provides that a person commits an offence if he enters into or becomes concerned in such an arrangement. It does not specify
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on which side of the arrangement the person has to be in order to commit the offence. Therefore, it is fairly flexible.
Therefore, both the person who facilitates retention or control and the person whose retention or control is facilitated commit the same offence. That is because both have entered into, or have become involved in, the arrangement. I trust that with that explanation the noble Lord will feel able to withdraw the amendment.
Lord Cope of Berkeley: Clearly the Minister wishes the same things as I do, which does not surprise me for a moment. However, I am still not entirely satisfied that the wording is adequate. I shall not pursue the matter today, but my point is that the clause states that:
"A person commits an offence if he enters into … an arrangement which facilitates the retention … of another person".
Lord Bassam of Brighton: If the noble Lord looks closely at the clause, he will see that it states,
"enters into or becomes concerned in".
Therefore, if one is involved in the arrangement, one is caught up in the committing of the offence. I believe that that is the important point. I shall be happy to try to clarify the matter between Committee and Report stages, if the noble Lord wishes. However, I believe that the intention of the clause is quite clear and that it covers both situations.
Lord Cope of Berkeley: I believe that it is the use of the words "another person" which caused the interest in this issue. However, I do not wish to pursue the matter at the moment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
Clause 19 [Disclosure of information: duty]:
Lord Glentoranmoved Amendment No. 39B:
Page 9, line 8, at end insert (", or is likely to commit an offence,").
The noble Lord said: Amendment No. 39B extends Clause 19(1)(a) to include,
"or is likely to commit an offence".
It seems sensible to me that if one suspects that a person has committed an offence, one should report it. However, if one also suspects, or even knows, that a person is about to commit an offence by knowing that he or she is going to a certain place to do a certain thing, that also should be included in that part of the clause. Therefore, I beg to move that that should be considered.
Lord Bach: The Government do not accept the need for the amendment and I shall try to explain why in a few words. I believe that there are three other amendments in this group and perhaps the noble Lord will want to speak to them in due course. Therefore, perhaps I may deal, first, with the amendment that he has moved.

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Clause 19 requires the reporting of belief or suspicion that someone has committed one of the terrorist property offences set out in Clauses 15 to 18. As the noble Lord said, Amendment No. 39B would require the reporting of suspicion that someone is likely to commit such an offence. That would broaden quite considerably the scope of the requirement—too far, in our view. The equivalent provisions in the Prevention of Terrorism Act 1989, the Drug Trafficking Act 1994 and the Criminal Justice Act 1988 already produce a steady flow of information on suspicious transactions, some of which produce useful leads. The amendment is presumably intended to produce more. But we do not believe it is necessary to extend the scope of the offence in this way.
In many cases a suspicion that someone will commit a funding offence will lead inevitably to a suspicion that he has committed one. For example, if I suspect that someone is going to "provide money or other property" for the purposes of terrorism—that is, Clause 15(3)—I presumably already suspect that he possesses money or other property for the purposes of terrorism. So I am not sure, in effect, how much difference the amendment would make in practice.
To the extent that there is any difference, however, there is of course nothing stopping someone who wants to report suspicion of a potential funding offence, as opposed to suspicion of an actual offence. The "permission to disclose" provision in Clause 20 adequately covers this.
But a statutory requirement to disclose is a serious measure and we would not seek to extend it lightly. We think it right that the requirement should apply to more substantive suspicions that someone has committed an offence rather than that he is likely to commit such an offence.
I do not know whether the noble Lord wishes to speak to his other amendments at this stage so I can answer him in due course.
Lord Glentoran: I wish now to speak to Amendments Nos. 41A, 41B and 41C. It seems that it was a reasonable defence if the person concerned believed that his employer would ensure that a disclosure was made in this situation. I do not think that needs very much explanation. If he has told his employer what he believes and he assumes that his employer is going to tell the necessary authorities, that seems to us fair and reasonable.
Amendments Nos. 41B and 41C seek to take out "thing" and insert "money or other property". "Thing." is a very undescriptive word. Really what is being spoken of in this Bill is money or property, and I ask the noble Lord to consider that.
Lord Bach: I shall deal first with Amendment No. 41A. Clause 19(4) makes provision for persons in employment by allowing them to make the disclosure to their employer rather than directly to the police. Amendment No. 41A proposes that someone seeking to rely on this option should also have to prove that he reasonably believed his employer would pass the suspicion on to the police.
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There is no need for such provision on the face of the Bill because the defence set out in subsection (4) only applies where the employer has established a procedure for the making of disclosures. So in order to rely on the defence, the employee would have to prove that he had followed the established procedure. The procedure could only reasonably be regarded as an "established" procedure if it indeed had the effect that employees reasonably believed it would ensure eventual disclosure to the police. So we think that that point is covered in the Bill as currently drafted.
I deal with the two remaining amendments in the following way. Clause 19(7) is an extra-territorial gloss on subsection (1) and ensures that disclosure is to be made even if the suspected offence involves a "thing" and takes place overseas. I am advised that, as a matter of statutory drafting, it would not produce the right result to refer instead, as the noble Lord proposes, to "money or other property". That is principally because the extra-territorial question arises only in relation to "things". With money, for example, it is possible to take possession without any physical thing changing hands.
With those explanations, I hope that the noble Lord will consider withdrawing the amendment.
Lord Glentoran: I thank the Minister for that explanation. Certainly with regard to the last two amendments, I accept the advice on statutory drafting in relation to matters overseas. I hope that we are secure in relation to the employer/employee relationship but for the moment I accept the noble Lord's advice and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhartmoved Amendment No. 40:
Page 9, line 13, at beginning insert ("Subject to subsection (3A),").
The noble Lord said: This is, I believe, an amendment of some importance because it concerns the freedom of the press. Let us assume that a journalist wants to interview someone who is alleged to be a major donor to a proscribed terrorist organisation. That organisation could be one that operates in the United Kingdom; it could be one whose operations are entirely outside the United Kingdom but which has been proscribed.
The journalist wishes to establish whether those allegations are true or not. During the course of the interview, again let us assume that the alleged donor makes statements which make the journalist believe that the allegations are true. He may make them on the record or off the record but the alleged donor admits that he is indeed a donor. Under Clause 19 as it stands that journalist will commit an offence if he does not tell a police constable about the interview as soon as reasonably possible. I should have thought that in that context "as soon as reasonably possible" must mean no later than the point at which the journalist gets back to the office or gets home, has access to a telephone and can pick up that telephone up and contact the police.

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The effect of Clause 19 on a journalist in those circumstances is obvious. No journalist will interview someone on the basis that he will report anything that he has learned at the interview to the police. No one will speak to a journalist if he knows that anything said to a journalist must be reported by law immediately to the police. The effect is to restrict freedom of speech.
The Government may well take the view that it would be better if an interview of that kind did not take place. But that, of course, is not the test. It is not whether the Government think it better or not. The true question is whether the obligation to report the interview to the police is something which is necessary in a democratic society. I believe that in the great majority of cases the answer to that question will be no.
I accept that there could possibly be cases where the danger from a terrorist organisation is so acute that the ordinary rules do not apply. That, indeed, is why we included in Amendment No. 141 subsections (3B) and (3C). Subsection (3C) is modelled on the power to derogate from convention rights under the Human Rights Act, which itself is modelled on the provisions as to derogation in the European Convention on Human Rights. That would make it possible in extreme circumstances to suspend the exemption for journalists.
In general, however, it is very difficult to see what damage is likely to be caused if journalists are exempted from Clause 19. Indeed, investigative journalism may even be helpful to the Government. This is an entirely different category from the case where banks may suspect money laundering on behalf of terrorists where, clearly, it is in the public interest that the banks should be required to disclose their suspicions to the Government. In practice, Clause 19 will not lead to journalists providing any useful information whatever to the police. It will simply reduce the flow of information to the journalists.
Clause 19 imposes an unjustifiable restriction on the freedom of the press, which is an essential element in freedom of speech and is recognised by the Human Rights Act as a matter of particular importance.
I recognise that Clause 19 is based on an existing section in the Prevention of Terrorism Act that does not include a special defence for journalists. In replacing the Prevention of Terrorism Act there is no presumption that Clause 19 should be identical to the corresponding section in the Prevention of Terrorism Act. Therefore, I suggest that it is proper and desirable that Clause 19 should be amended in this way. I beg to move.
Lord Avebury: I support my noble friend and I draw attention to the fact that the noble and learned Lord, Lord Lloyd, in his inquiry into legislation against terrorism concluded that an offence prescribing failure to disclose information about acts of terrorism should not be enacted in permanent legislation. I would be inclined to go even further than my noble friend and say that the whole of Clause 19 is objectionable,
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bringing back into our law something that used to be called "misprision of felony". Noble Lords may remember that several years ago that was cleared out of obsolete statutes, many of which dated from the Napoleonic wars.
Again, the Human Rights Commission of Northern Ireland has objected to Clause 19 and suggested, in relation to Northern Ireland, that an extremely wide offence exists in the prevailing ordinary criminal law, prescribing the kind of behaviour that this clause seeks to address. That is to be found in Section 5 of the Criminal Law Act 1967.
In this Bill we seem to be modelling United Kingdom legislation on a measure that has been in force, on a temporary basis, in relation to Northern Ireland alone where the position may be totally different. There is no particular reason why a measure that was appropriate in the conditions prevailing in Northern Ireland should now be extended to the whole of the United Kingdom.
Can the Minister give the Committee any figures for prosecutions and convictions under the corresponding provision in the Northern Ireland Act to which my noble friend has referred? I refer to Section 18A of the Prevention of Terrorism Act. Have any prosecutions been brought against journalists under that section and, if so, what was the result? As my noble friend has said, these provisions appear to fall foul of the Human Rights Act and there is case law in relation to this matter. Cases have been taken before the European Court of Human Rights in Strasbourg where this provision appears to be in contravention.
I believe it would be unwise for us to endanger journalists in the way suggested. If we do so, we shall fall foul of Clause 10 of the European Convention on Human Rights. It is difficult to imagine how Ministers have certified that this legislation conforms with the Human Rights Act when we have the case of Goodwin in front of us. The noble Lord may want to refer to that in his reply.
I am sure that the objections are not limited solely to journalism because many other people may inadvertently have matters disclosed to them in the course of their professional lives and have the same obligation of confidentiality as a journalist owes to the person he interviews. I believe that my noble friend is right to focus on the matter of journalism because this clause can do the greatest harm to that profession. I hope that the Minister will consider this matter seriously before Report stage.
Lord Marlesford: I too want to support the amendment tabled by the noble Lord, Lord Goodhart. I do not do so because of any great principles such as the European Convention on Human Rights or any other legislation. I support the amendment on the simple basis that the clause seems to show an astonishing lack of understanding of how journalism works in practice by a government who include, in their inner sanctum, so many distinguished journalists who do understand such matters.

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It is inconceivable that a journalist should ever be put under the restriction of carrying out an interview of any sort on the basis that he may hear or learn something that he would be required to report to the authorities afterwards. It would not work. Journalists would not feel bound by it. One would not be able to administer such a restriction. It is a thoroughly foolish and pernicious proposal. I say that as someone who will yield to no one in the desire to support the overall intentions of the Bill.
Lord Desai: I support the amendment. I have been disturbed by the case taking place against some journalists, in whose support I have signed a petition. I am worried not only that if confidentiality is broken, people will not talk to journalists; but, as an academic, I am also concerned that a lot of information used by my colleagues in international relations or politics comes from good journalistic reporting. Such reporting is a valuable source, not just for academics, but also for governments. If journalists do not find out things, we shall all be in ignorance. This matter impinges on the freedom of the press and on academic freedom. Some so-called "journalists" may be colleagues of mine; for example, I have a distinguished colleague, Professor Fred Halliday, who knows many Arab terrorists. He knows lots of terrorist groups and has spoken to them. Is he supposed to divulge all his information? In doing so, he would lose his career.
Another concern is that while surfing the Internet I may come across a terrorist website. Am I obliged to do something about that immediately or can I click past that and go somewhere else? Will I have committed an offence? The definition of what offence may be committed is so broad that I believe that we should carefully consider whether it should be prescribed more carefully.
Lord Monson: I have a more technical point to make. I refer to the last line of Amendment No. 41, which contains the rather melodramatic words,
"threatening the life of the United Kingdom".
I believe that is open to all sorts of interpretations. Is there any precedent for using that exact form of words? I do not believe that it is the most desirable form that could be devised to achieve the purposes of the Liberal Democrats.
Lord Bassam of Brighton: This has been a useful short debate. I understand and appreciate that journalists, among all the professions that may be affected by the clause, feel particular concern about this matter. I well understand some of the misgivings that have been expressed in Committee, not least because of the several and various representations that the Government have received from the Society of Editors, the Newspaper Society and members of the broadcast media who have made direct representations to my honourable Friend Charles Clarke.
The Government would be the first to concede the vital importance of ensuring a free press and that the press must be able to go about their lawful business in
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an entirely proper and unfettered manner and without undue constraints. We fully accept the integrity and the professionalism both of the journalistic profession as a whole and of individual journalists, particularly those who may be interested the area of public policy.
However, I would argue that wh that integrity and professionalism must go a degree of responsibility to the wider society. As my honourable friend Mr Clarke said when this matter was debate n another place, a journalist may, during the course of his business, become aware that, say, Canary Wf is to be blown up. I am sure that Members of the Committee agree that it would be unacceptable for him not to tell anyone in order to protect his sources. That journalist would have had knowledge and information, something of value to the wider society, clearly indicating that people were to be placed at risk. To withhold that information on the grounds that he was protecting his sources would be neither right nor proper.
4 p.m.
Lord Marlesford: Does the Minister really believe that that is a realistic example? As a journalist—I do not have an interest to declare now but I was a journalist for 16 years—protecting one's sources and revealing a real threat to human life are totally different things. I cannot think of any journalist, if he or she were to hear of something like that, who would not immediately take whatever action was necessary prevent it happening. That is not the same as revealing a source. It is an extreme example which does not support the case.
Lord Bassam of Brighton: It may well be an example in extremis, but it is something which could take place. We must acknowledge that point. The battle against terrorism is extremely important.
Lord Goodhart: I thank the Minister for giving way. Is it not the fact that the offence under Clause 19 has nothing to do with disclosure of information about the potential bombing of Canary Wharf? The offence under Clause 19 is limited to disclosure of information relating to the commission of an offence under Clauses 15 to 18, which deal with fundraising and property.
Lord Bassam of Brighton: I accept the point the noble Lord makes. But knowing about and having knowledge of the means of support for terrorist activity is an important element of this debate. Having knowledge of the obtaining of funds for committing acts of terrorism and supporting terrorism has a bearing on this whole debate.
It is a matter of striking the right balance. In drafting the legislation we have shifted the balance somewhat from the position under the existing legislation by repealing the old Section 18 of the Prevention of Terrorism Act. I remind the noble Lord, Lord Marlesford, that that legislation was put in place in 1984 and again in 1989. The Bill removes the statutory requirement to disclose information which could lead

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to the prevention or detection of specific acts of terrorism. We agreed with the noble and learned Lord, Lord Lloyd, that this was of limited usefulness and served mainly to criminalise the families of terrorists.
But we believe it is important to retain the old Section 18A of the PTA. That is the provision now replicated in Clause 19 of the Bill. We regard that as an essential position of permanent counter-terrorist legislation. It is more limited than the old Section 18 in that it applies only to belief or suspicion that another person is committing a terrorist property offence under Clauses 15 to 18. It also applies only where a person bases his belief or suspicion on information which comes to his attention in the course of a trade, profession, business or employment. So it is not just about journalists.
This provision is especially relevant—this must be underlined—to the financial services industry as it generates a flow of information from banks and building societies. But that does not mean that it should only apply to that industry, or that any other industry should be exempt. Of course the Government recognise that the journalistic profession takes its responsibilities extremely seriously; we do. But the Committee will understand that to provide a specific exemption for journalists, even one which could be switched off as the noble Lord, Lord Goodhart, argued his was at certain times, would leave a potential loophole in what we consider to be an essential provision. It would also carry the risk of making it much easier to launder terrorist finance through press and media companies, a result which I am sure the Committee would not intend.
If I may be a little more reassuring to those journalists who feel that the clause may restrain their legitimate activities, I must emphasise that the Government see the "reasonable excuse" defence in subsection (3) as an important safeguard in this area. I cannot, of course, give a cast-iron assurance that protecting sources will always be a reasonable excuse; it would be wrong for me to do so. That would be for the courts to determine in any individual case. But protecting sources is clearly an important principle for journalists, particularly those working in this difficult area. However, money and other resources are the lifeblood of terrorist organisations. The offences in Part III are extremely important in deterring and disrupting the planning and execution of any act of terrorism, the more so where concerted terrorist campaigns are concerned.
I know Members of the Committee will agree that every effort needs to be made to co-operate with the police in enforcing these offences. Nevertheless, the "reasonable excuse" approach is the best way to arrive at the right balance. By allowing each case to be considered individually, on its merits, we avoid the risks which would go with a blanket exemption while recognising that there could be cases in which a journalist—or anyone else—might have a reasonable excuse for keeping a belief or suspicion to himself.
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In the debate in another place Mr David Lidington referred to the view that,
"it would not be in the people's interest for police time to be wasted by journalists reporting all the many rumours that they pick up when going about their normal occupation"—
an argument with which many of us would find it hard to disagree. But it is surely for the police alone to assess the information which is reported to them and, above all, it is against the public interest for terrorists and their supporters to generate with impunity the funds and other resources which enable them to carry out their deadly crimes.
The Government believe that the importance of tackling terrorist finance is an overriding factor in this area. We do not support a specific exemption for journalists. The noble Lord, Lord Avebury, asked about the number of prosecutions. I can advise him that there have been no prosecutions under the current provisions. In a sense, that underlines their important deterrent effect and the point I made earlier about the value of the clause bringing forward important information which will enable the prevention of terrorism. After all, that is what this legislation seeks to do.
We understand and have considerable sympathy with the problems Members of the Committee have highlighted in this short debate. We do not wish unreasonably to fetter the journalistic profession or, for that matter, other professions in the lawful exercise of their duties and responsibilities and their professionalism. But we have the balance right. We have narrowed the legislation as it was previously set out in the PTA. We have taken careful note of the view of the noble and learned Lord, Lord Lloyd, in this matter and feel that the balance is about as right as we can get it. Given the seriousness and sensitivity of this issue, I ask the noble Lord to withdraw his amendment.
Lord Goodhart: I am grateful for the support that I received in this matter, not only from my noble friend Lord Avebury and the noble Lord, Lord Desai, but also and perhaps more importantly from the noble Lord, Lord Marlesford. On issues relating to the Terrorism Bill, support for these Benches from speakers on the Conservative Benches is relatively rare and therefore more valuable, but much more so in view of the long professional experience of the noble Lord as a journalist.
It seems to me, from the response made by the noble Lord, Lord Bassam, that the Government—as the noble Lord, Lord Marlesford, said—do not understand the way in which journalism works, nor the importance of the freedom of the press. Saying that journalists may be able to rely on the defence of "reasonable excuse" is nothing like an adequate answer here. The real problem is that, if journalists are threatened with being taken to court, they will simply not seek the information which may render them liable to prosecution, even if at the end of the day they may find themselves able to raise the defence of "reasonable excuse".

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What is needed is an amendment making clear that journalists who act in good faith are not in danger of prosecution. This is an important matter. I have to say that I do not find the Government's answer satisfactory. Therefore, it is a matter to which we shall very probably wish to return at future stages of the Bill. Having said that, it is not my intention to press the issue to a vote today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 41 not moved.]
[Amendments Nos. 41A to 41C not moved.]
Clause 19 agreed to.
Clauses 20 to 23 agreed to.
Schedule 4 [Forfeiture Orders]:
[Amendment No. 42 not moved.]
Lord Bachmoved Amendment No. 43:
Page 73, line 9, after ("also") insert (", on such an application.").
The noble Lord said: in moving this amendment, I shall speak also to Amendments Nos. 44 to 52. These are really minor technical amendments. Amendment No. 43 makes it clear that the Court of Session has power to make a restraint order under paragraph 18 where the Lord Advocate applies for a restraint order in the circumstances set out in sub-paragraph (2). Amendments Nos. 44 to 50 are all minor drafting amendments. As Members of the Committee will no doubt have seen, the changes reflect the drafting approach taken in Part I of Schedule 4 for England and Wales.
Amendment No. 51 ensures that all the appropriate sub-paragraphs of paragraph 27 can be applied to the enforcement in Scotland of external forfeiture and restraint orders. Amendment No. 52 ensures that the Bill correctly replicates the position in the PTA. Part IV of Schedule 4 allows for cases where a person subject to a forfeiture order is declared bankrupt. Under sub-paragraph (3) of paragraph 47 the forfeiture order is set aside, but under paragraph 48 the Secretary of State is taken to be a creditor and has to be paid after the debts of all other creditors have been paid in full, with interest, under the relevant provision. Paragraph 48(3) defines "relevant provision", and the amendment to paragraph 48(3)(a)—Amendment No. 52—corrects the unintended omission of the application of this definition in relation to the winding-up of a company to Scotland. I beg to move.
On Question, amendment agreed to.
Lord Bach Lord Bach moved Amendments Nos. 44 to 52:
Page 73, line 32, leave out ("Where") and insert ("When").
Page 74, line 35, leave out ("his").
Page 74, line 36, leave out ("his").
Page 74, line 37, leave out ("he is") and insert ("the person convicted is subsequently").
Page 74, line 38, leave out ("his").
Page 74, line 40, leave out ("has") and insert ("had").
Page 74, line 44, leave out ("is some") and insert ("was a").
Page 77, line 49, leave out ("(7)") and insert ("(8)").
Page 86, line 31, after ("Wales") insert ("or Scotland").
On Question, amendments agreed to.
Schedule 4, as amended, agreed to.
Clause 24 agreed to.
Clause 25 [Seizure and detention]:
4.15 p.m.
Lord Glentoranmoved Amendment No. 52A:
Page 12, line 26, leave out ("to which this section applies").
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 52B, which seeks to remove subsection (3). The latter is a very convoluted provision regarding the potential movements of money, which seems to be completely unnecessary. We do not see why the movements of money that can result in arrest should be confined to movements to and from Northern Ireland, those in preparation to be moved to Northern Ireland, those in preparation to arrive here from Northern Ireland, or whatever.
If money is ill-gotten and "terrorist money", if I can use that phrase, and it happens to be on the move from A to B anywhere within this kingdom, it is reasonable for it to be apprehended and the necessary proceedings followed. That is the basis of our argument. I beg to move.
Lord Bassam of Brighton: I recognise the attractiveness of permitting cash to be seized anywhere, not just at borders. However, the seizure of cash is a significant interference with human rights. The Government need to ensure that they get the right balance—an expression I often use, but one which I believe describes the situation well. This has to be the case in the issue of civil forfeiture, such as provided for in Clauses 24 to 31. It is called "civil forfeiture" because forfeiture allows civil as opposed to criminal proceedings to take place. There is no need for someone to be convicted of a criminal offence. We are, therefore, proceeding in this area with some care and caution.
The cash-at-borders powers in Clauses 24 to 31 are modelled closely on those used in the Drug Trafficking Act 1994—legislation with which, no doubt, the noble Lord will be familiar. The main difference is in which borders are included. In the Drug Trafficking Act the powers apply only where cash is being imported into and exported out of the United Kingdom. In this Bill, the powers can also apply where cash is being transferred, say, from Northern Ireland to Great Britain or vice versa. We are not prepared in this Bill to go as far as permitting the seizure of terrorist cash other than at borders. That is because we are dealing with that issue, as I am sure the noble Lord is aware, in another context.
The third report of the Home Office working group on confiscation, published in November 1998, proposed a wide range of improvements to current law and practice. The working group recommended an in-depth study into the feasibility of a national

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confiscation agency to oversee civil forfeiture and, perhaps, take on other confiscation functions. The report also discussed a range of options, including extending civil forfeiture to all crime and all property and establishing a national agency to conduct all civil forfeiture of non-cash property, with operational oversight of cash forfeitures and criminal confiscations.
In collaboration with Her Majesty's Treasury and the Performance and Innovation Unit of the Cabinet Office, we have been working on a comprehensive package of measures in this area. My right honourable friend the Prime Minister will be publishing the report of the PIU study shortly. It will, I am sure, give much more detail on those proposals. Therefore, while we are using the opportunity of the Terrorism Bill to introduce civil forfeiture of terrorist cash at borders, modelled on the existing powers in the Drug Trafficking Act, to go any further at this stage would mean duplicating or perhaps cutting across the broader work that is of considerable importance in the wider sense of dealing with criminality. Options for civil forfeiture of terrorist cash other than at borders and of terrorist property other than cash are being considered as part of that much broader exercise.
With that reassurance, I trust that the noble Lord will feel able to withdraw his amendment. We think that both amendments highlight a useful issue; indeed, it is something of which we are very aware and upon which we shall be publishing more details shortly. I hope that the Committee will be satisfied with my response.
Lord Molyneaux of Killead: In his response, the Minister used the words "at this stage". But in view of what has been said, the discussion we had in the debate on the political parties Bill, when we touched on a parallel problem of money shipment into Northern Ireland, and the Prime Minister's forthcoming statement, I hope that he has not entirely closed his mind to tightening up the draft legislation as it stands.
Lord Cope of Berkeley: The Minister's reply was extraordinary. It seemed to boil down to the idea that the Government intend to do what is suggested in our amendment but will do so on a much wider basis. That is what I gathered from reports in the press this morning. In other words, the Government will adopt a much wider approach but they are not prepared to act now. That seems odd when we have the Bill before us and the time is available.
Moreover, if I may say so, the Minister did not seem to put forward any argument as to why money should be seized when being moved from, say, Liverpool to Belfast, but not when being moved from London to Liverpool or, for that matter, from Belfast to Londonderry. It seems to me most odd that it is only when the money is being moved, or is being prepared to be moved, between Northern Ireland and Great Britain that it should be subject to seizure, and not when it is being moved within Great Britain or within Northern Ireland.
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However, the Government clearly intend to return to this matter. We shall need to discuss it at a later stage in the Bill to discover the reasons why the measure is proposed in the first place and, secondly, to ascertain what the Government propose in agreeing with us as they appear to do.
Lord Bassam of Brighton: As I said earlier to the noble Lord, Lord Glentoran, we find the measure attractive. It is clear from press coverage—perhaps of remarks attributed to my right honourable friend Dr Mowlam—that we regard this as an important area. At this stage we are content with the provisions that we have put in place. I say to the noble Lord, Lord Molyneaux, that as this is part of a wider and more complex picture we hope that noble Lords will not press their amendments at this stage. We recognise their importance and significance, but because of the complexity of the matter we wish to ensure that the provisions we introduce are workable and appropriate in all circumstances. We are grateful to the noble Lord for prompting this important debate.
Lord Glentoran: I thank the noble Lord for that explanation. Like my noble friend Lord Cope, I am not entirely convinced by the arguments that have been put forward but I understand that there is quite a lot of work going on behind the scenes. We look forward to hearing more, perhaps at Report stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 52B not moved.]
Clause 25 agreed to.
Clause 26 agreed to.
Clause 27 [Detained cash]:
Lord Bachmoved Amendment No. 53:
Page 13, line 38, leave out ("of the following persons") and insert ("person").
The noble Lord said: In moving Amendment No. 53 I wish to speak also to Amendments Nos. 54 and 55. These are three minor government amendments. Amendments Nos. 53 and 54 were suggested by parliamentary counsel and are purely drafting amendments. They achieve precisely the same effect as the original wording but make it more concise. Amendment No. 55 provides an opportunity for third parties to be heard in civil forfeiture proceedings similar to the opportunities provided in connection with criminal forfeiture proceedings in Clauses 23(7) and 58(6). This is an additional safeguard which I hope will be welcomed by the Committee. I beg to move.
On Question, amendment agreed to.
Lord Bachmoved Amendment No. 54:
Page 13, leave out lines 41 to 44.
On Question, amendment agreed to.
Clause 27, as amended, agreed to.
Clause 28 [Forfeiture]:
Lord Bachmoved Amendment No. 55:
Page 14, line 23, at end insert—
("( ) Before making an order under this section, a magistrates' court or the sheriff must give an opportunity to be heard to any person—

(a) who is not a party to the proceedings, and

(b) who claims to be the owner of or otherwise interested in any of the cash which can be forfeited under this section.").

The noble Lord said: This amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
Clause 28, as amended, agreed to.
Clauses 29 to 32 agreed to.
Clause 33 [cordoned areas]:
Lord Goodhartmoved Amendment No. 56:
Page 16, line 9, leave out ("expedient") and insert ("reasonably necessary").
The noble Lord said: Before I deal with the substance of the amendment I should say that I asked for Amendments Nos. 57 and 58 to be removed from the group we are discussing. I was too late to secure a change to the groupings list but I hope that I shall be excused if I deal with Amendments Nos. 57 and 58 separately.
Lord Bassam of Brighton: They have been decoupled. Therefore they will form the subject of a separate debate. I hope that that helps the noble Lord.
Lord Goodhart: I am grateful for those comments. I obtained my groupings list from outside the Chamber. It was not marked with the word "draft" and therefore I assumed that it was the final version.
Lord Bach: It was the final one, but not the final, final one. Apparently there is a revised version outside.
Lord Goodhart: The first group of amendments I wish to address comprises Amendments Nos. 56, 117 and 123. These amendments seek to tighten up the requirements before certain action can be taken, in each case by requiring the action in question to be "reasonably necessary" rather than, as provided by the Bill, "expedient". Amendment No. 56 applies to Clause 33(2) of the Bill which allows a police officer to designate an area as a cordoned area if he or she considers it expedient for purposes of terrorist investigation.
Amendment No. 117 applies to Clause 44(3) which allows police officers to authorise the stop and search of vehicles if,
"expedient for the prevention of acts of terrorism".
Amendment No. 123 applies to Clause 48(2) which concerns the imposition of parking restrictions.
These are all, of course, actions which impose inconvenience on the public. No one in their senses would object to suffering some degree of inconvenience if there was a real possibility that as a result an act of terrorism would be prevented or if there
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was a chance of catching a terrorist. However, the action must be proportionate to the objective. I would have expected the test in the Bill to be that the action must be reasonably necessary, not absolutely necessary or essential.
The Government may say that "expedient" means the same thing as "reasonably necessary". Therefore this is in effect a probing amendment. Do the Government say that "expedient" means the same as "reasonably necessary"? If not, what is the difference between the two expressions? Can the Government give examples of differences? I beg to move.
Lord Bassam of Brighton: I am not an expert in Fowler's Modern English Usage but I shall try to enter into the spirit of a debate about words.
Amendment No. 56 would alter the way in which the cordon designation regime under the Bill, which replicates that currently available under the Prevention of Terrorism Act, would work. It would replace the existing test that a cordon designation must be "expedient" for the purposes of a terrorist investigation with a "reasonably necessary" test. As the noble Lord said, Amendments Nos. 117 and 123 would similarly replace "expedient" with "reasonably necessary" in Clause 44, which covers stop and search, and Clause 48, which covers parking.
As we explained when a similar amendment was tabled at Committee stage in another place, we do not think that this quite meets the case. The police would not impose or maintain a cordon if they did not believe that to be the appropriate course of action in all the circumstances—and the involvement of a senior police officer in the process provides an adequate check on any tendency for over-use. However, that is not the same as requiring a reasonable belief that the cordon is necessary—which is what I take the amendment to mean. I am not sure that something which can be described as being "reasonably necessary" achieves exactly that. However, I shall not over-egg that argument.
An example might be where a bomb warning was imprecise, or the police believed it was inaccurate—deliberately or otherwise. In such a case the necessity for a cordon might be debatable, but it makes good sense to have one. Similarly, in the case of stop and search or parking restriction powers, there could be cases where a cordon might not he considered "reasonably necessary" but could be to the general advantage. That is the important test. For instance, this might be the case if the alternatives, in the light of a terrorist threat to an event, were to authorise the use of the stop and search power or parking restrictions around the venue or to see the event cancelled altogether.
That is not to say that the "expediency" requirement gives carte blanche for the police to set up cordons without good cause. The term has been criticised as being too broad or, perhaps, overly subjective. In debating it at the Commons Committee stage, Simon Hughes quoted a dictionary definition

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which suggested that the term carried a sense of being "morally dubious". But that is not the primary meaning or understanding of the term.
The Shorter Oxford English Dictionary advises that the term means,
"Advantageous … fit, proper; suitable to the circumstances".
That last expression provides the basis for the kind of criteria on which we expect the police to make judgments when considering whether or not to set up a cordon.
I hope that that explanation helps the noble Lord. In that spirit, I hope that he will feel able to withdraw his amendment.
4.30 p.m.
Lord Glentoran: Perhaps I may make a short comment, having lived in an atmosphere and environment of cordons, searches and so on for 30 years. In my experience, "expedient" is a word which is understood by those in the services; it is used fairly frequently in different ways. It denotes a positive attitude; a positive way forward. Those of us who have lived in such an environment know that we do not want our security forces pussyfooting around and hesitating about whether or not to cordon off an area. If there is a likelihood that an area should be cordoned-off and you live around there, you would want it cordoned quickly.
Lord Goodhart: I listened with interest to what the Minister said. His examples all seemed to be cases where the test of "reasonable necessity" would have been satisfied. Certainly if the police think that a bomb warning is inaccurate as to the location of the bomb, any area where they suspect a bomb might be would be cordoned-off not only as a matter of reasonable necessity but as a matter of virtually absolute necessity. I have no difficulty with that.
However, I am left with a slight sense of uncertainty. I question whether the test of what even a relatively senior policeman thinks is "expedient" is necessarily the right one. As to the remarks of the noble Lord, Lord Glentoran, I take them very much on board. He has great experience of those conditions. But, again, the kinds of circumstances he spoke about would satisfy the test of reasonable necessity.
Having said that, we shall take the amendment away, think about it again and consider whether this matter is of sufficient importance to bring back at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 agreed to.
Clause 34 agreed to.
Clause 35 [Duration]:
Lord Goodhartmoved Amendment No. 57:
Page 16, line 42, leave out ("14") and insert ("4").
The noble Lord said: Amendments Nos. 57 and 58 concern the power to cordon off an area and to exclude people from it.
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There is no question but that this is an absolutely essential power in terrorist circumstances. Obviously the police need to keep people away from anywhere where they think a bomb may be liable to go off; they need to keep people away from land or buildings which are being searched for weapons or for evidence; and they need to keep people away from an area which is dangerous because of the damage caused to buildings by an explosion.
But, of course, the power can cause extreme inconvenience. People can be forced out of their homes; businesses in a cordoned-off area may have to close; and road closures obviously disrupt the activities of a locality. In most cases, closure would be necessary only for a matter of hours; where there has been an explosion, it could be a matter of perhaps two or three days in order to search for evidence and to remove debris. I wonder whether it is really necessary to provide that a police superintendent, on his or her own authority, can impose a cordon for as long as 14 days, and then extend it for a further 14 days.
The amendment seeks to impose a limitation of four days. I suggest that that would be sufficient in the great majority of cases. There may be a few cases where a longer period is needed but, given the serious effect of a cordon, I suggest that an extension beyond four days should require a court order. I beg to move.
Lord Bassam of Brighton: In our view, these amendments would significantly alter the way in which the cordon designation regime under the Bill would work. As the noble Lord explained, they would allow a cordon designation under police authorisation to last for only four days as compared with the current 14 days, extendable to 28 days, under the Bill. The amendments would also introduce a judicial involvement into the process.
This is, essentially, an operational matter. Having listened to the comments of the noble Lord, Lord Glentoran, of how one needs to be "expedient" in these circumstances—hence the use of that term in the earlier debate—we feel that this is a matter of expedience and of good operational sense. For that reason it would probably be entirely inappropriate to involve the courts.
I fully accept that a cordon imposes some limitation on the right of people to pass by and to have access to areas that they might otherwise freely use. But, after all, these powers are usually used in operational circumstances—for example, where an explosion has taken place; where evidence needs to be gathered; where the complexity of an investigation may grow; and in extreme circumstances of great tragedy, where many people have been affected, injured or perhaps even killed. It may well be necessary in such circumstances for the cordoned-off area to remain in that state for a particularly long period of time.
I think that the measures we have put in place, which allow 14 days and then a further period, will cover most circumstances. But, where the forensic examination of explosives at a bomb scene is involved, it may well be that the area will need to be cordoned

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off for much longer. We have a proportionate approach which bears in mind the interference and the rights of passage involved. I can assure the Committee that the police are extremely sensitive at all times to the requirements of businesses and individuals in the wake of a terrorist incident. It is no small miracle that business returns as rapidly as it does in those kinds of extreme circumstances.
Ultimately, of course, the use of the power in any particular set of circumstances could be tested by judicial review. After 2nd October this year it will be open to those concerned properly to exercise convention rights.
I hope that, in the light of those comments—focusing as they do on the essential operational importance of retaining the powers—the noble Lord will feel able to withdraw his amendments.
Lord Monson: Before the Minister sits down, can he tell the Committee how many times in the past 30 years in the United Kingdom a cordon has been in place for longer than 96 hours, which is four days? It surely cannot have been very often.
Lord Bassam of Brighton: I suspect that the noble Lord is right, that it has not been very often. I do not have the data in regard to the effect of cordons, the length of time they have been in place and the number of instances, but I undertake to make inquiries in that regard. I am sure that the noble Lord will accept that there may well be circumstances—perhaps as with Canary Wharf or the Manchester bombing and so on—where, in extremis, it will be essential to have an area cordoned off for quite a long period of time,
Lord Goodhart: We will consider carefully what the Minister said. I do not hold out much hope for judicial review as a remedy. Given that the maximum period of time that cordoning can last is 28 days, it would he a very hopeful litigant who thought he might get a decision from a court within that time. We will consider that. I should certainly find it helpful if before Report stage the Minister could let me know how many cases there have been where cordons have been maintained for a period of longer than four days.
Lord Bassam of Brighton: I gave an indication to the noble Lord, Lord Monson, that I would make investigations about that and of course any information I produce as a result of my investigations I shall share with your Lordships and place a copy in the Library.
Lord Goodhart Lord Goodhart: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 58 not moved.]
Clause 35 agreed to.
Clauses 36 and 37 agreed to.
Lord Burlison: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Sierra Leone
4.42 p.m.
Lord Burlison: My Lords, with the leave of the House, I should like to repeat a Statement made in the other place by the Secretary of State for Defence. The Statement is as follows:
"With permission, I should like to make a further Statement about the deployment of British troops in Sierra Leone.
"In my Statement last week, I informed the House about our forces' deployments to Sierra Leone. British troops are in Sierra Leone to get British nationals out, and to help get UN reinforcements in. That is what our troops were sent to do. It is what they will carry on doing as long as is necessary. They are doing this job exceptionally well. British forces in Sierra Leone have secured Lungi airport while UN forces are building up and, following the attack on the Paras last week, they have moved light guns ashore and conducted reconnaissance flights to assist in that task.
"Separately, British officers are providing military advice to UNAMSIL, the government of Sierra Leone, and the UN in New York. Our aim is to help the UN create a more effective UN force in Sierra Leone, one that can restore peace and order in Sierra Leone and help the government of Sierra Leone re-establish stability.
"This strategy is making significant progress. In the past week we have seen the arrival of capable and effective UN reinforcements through Lungi airport. The RUF has been pushed back by the forces of the government of Sierra Leone. We have seen Foday Sankoh, the RUF leader, arrested and detained by the Sierra Leone authorities. This is significant. He is ultimately responsible for the actions of the rebels he leads. His future is for the government of Sierra Leone to decide, but the RUF must be clear that the violence must stop, and that the peace process must be carried forward.
"Our longer term aim is to have a Sierra Leone that is stable, in which rebel fighting forces have been demobilised, with the government of Sierra Leone in control of the diamond producing.
"I should like to inform the House of changes in our military deployments following this encouraging progress in the UN build-up. As I made clear last week, our intention is that UK forces will stay in Sierra Leone no longer than is necessary. Indeed, UNAMSIL is preparing the way for a formal take-over of the UK's role at the airport in due course.

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"The Spearhead Battalion group has played an outstandingly successful role in securing the airport since it arrived earlier this month. Conditions actually on the ground are difficult. Living conditions are extremely basic and the environment in which it is operating is hot, humid and thoroughly unpleasant. Furthermore, it needs now to prepare for other duties facing it later this year. The Government have therefore decided to replace the 1st Battalion the Parachute Regiment, which will start to return to the UK this week, with 42 Commando Royal Marines. This has the practical advantage that it can be sustained logistically from the Amphibious Group of HMS "Ocean" just offshore. This will enable us to continue to secure Lungi during the continued build-up of UN forces over the period to mid-June, and to do so without ourselves over-taxing the limited infrastructure of the airport.
"This changeover will represent the first stage of our plan to withdraw the bulk of our deployed force by the previously announced timetable of mid-June. This recognises the other commitments that our Armed Forces have and my concern to avoid adding to the pressures on them. It also demonstrates the utility and effectiveness of the flexible, balanced force that we sent to the region.
"Looking ahead to when the main UK forces do withdraw, advance elements of the UK-led international military assistance training team, announced by the Prime Minister on 27th March, will be arriving in Freetown very shortly. The training team is part of the Government's wider programme of assistance in helping the government in Sierra Leone restore peace and stability after eight years of brutal civil war. The team will provide advice and training to help the government of Sierra Leone re-build a new, effective, democratically accountable armed force and Ministry of Defence in line with the Lomé peace agreement.
"Perhaps I may also take this opportunity to assure the House that we will also continue to be very mindful of the situation regarding the detainees, the delicate position of Major Andrew Harrison, and work on the continuing search for the missing aid worker Alan Smith.
"Creating new, democratically accountable armed forces in Sierra Leone is vital to the long-term restoration of peace and security in the country. The UK will provide the majority of the personnel, but the team will be a multinational effort. We are encouraging other countries with an interest in building peace in Sierra Leone to contribute to building it up—as soon as it is safe to do so—to a team of about 90 strong.
"Given the return to violence by the RUF, we will also be giving the Sierra Leone army access, if needed for operations and under the supervision of British officers, to stocks of light weapons and ammunition. The precise distribution of arms and
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ammunition will be carefully considered in the context of the local political situation and the wider regional issues.
"Our Armed Forces are doing an excellent job, as has been widely acknowledged both here and internationally. Our servicemen and women can be justifiably proud of the job they have done. What we are now setting in place are the arrangements for our continuing support to the government of Sierra Leone.
"Our deployment has been a practical example of the British ground forces being a force for good and has clearly demonstrated the flexible deployment concept that was at the heart of the Strategic Defence Review. We are showing both that we can deploy forces rapidly in response to a crisis but also that we will withdraw them when we judge it is right to do so.
"In summary, our immediate mission remains the same: to secure the airport for evacuation purposes and to allow the reinforcement of the UN force. Our assumptions on timing remain the same: the buildup of UN forces between now and mid-June is on schedule. The replacement of the Paras by the Marines is a sensible military step which preserves our capability on the ground for the remainder of this mission, while allowing the Parachute Regiment to return to the UK.
"Finally, our commitment to promoting stability and security in Sierra Leone remains the same. Our decision to enhance the capability of the Sierra Leone army is an essential element of that.
"We will continue to do all we reasonably can to help the UN achieve its mission, including with advice and logistical support. Britain will continue to stand by the people of Sierra Leone in their search for permanent peace."
My Lords, that concludes the Statement.
4.49 p.m.
Lord Burnham: My Lords, I thank the noble Lord for repeating the Statement made in another place by his right honourable friend the Secretary of State. As the Secretary of State has rightly said, a major and justified tribute should be paid to the work of the British forces in Sierra Leone. By all we see and hear, they are doing the most remarkable job. I am sure that they will continue to do so but I trust that they will not need to do so for too long.
I must again ask about the aims of the operation. The Statement says that the aims of going in were the evacuation of British nationals and to get United Nations reinforcements into Sierra Leone. There is no doubt that what has happened is wider than that. It has our complete support because it is designed to stabilise the political and military situation in Sierra Leone, but it is not quite what was stated at the beginning as being the aim.
We welcome most warmly the replacement of the 1st Battalion the Parachute Regiment with 42 Commando Royal Marines. The Statement points out

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that conditions at Lungi airport and around it are very basic. The fact that we have HMS "Ocean" and other detachments nearby means that life for those who are conducting operations will be very much more comfortable than it would if they had to set up at the airport on their own.
What consideration is being given to the problem of the forthcoming rainy season? The Statement refers to the humid and unpleasant atmosphere on the spot, but that will be made very much worse when the place is a sea of mud, as it will be between quite shortly and November.
One or two questions come to mind which should be asked. Has the Sierra Leone Government full control of the Sierra Leone army? We are looking for political and military stability, but we can get that stability only if a responsible government are in charge. It is not certain whether the Sierra Leone army has the benefit of the training officers and advisers from this country. In the light of that, the infusion of officers to train the Sierra Leone army is very welcome. I am sure that they will do an extremely good job.
My noble friend Lord Attlee and I were strongly criticised by the noble Baroness, Lady Symons, for talking about the rules of engagement. I shall not do that now. Rules of engagement are important at a certain level. They are written on pieces of plastic card so that soldiers know what they may or may not do. But I should like to ask the Minister about the concept of operations in Sierra Leone. I started off by saying that what seemed to be happening was wider than was originally designed. So what is the concept of operations? Do we have absolute clarity about our aims and where we intend the Sierra Leone government to end up?
I am sure that everything that can be done by British forces on the ground, in the air and at sea will be done, but there then comes a moment of how and when we get out. One of my noble friends told me that after the previous Statement a friend of his on the ground in Sierra Leone had been told that they would be there for 45 days, which is not the figure we had been quoted. No matter. But do we know how and when we will get out; and if the situation does deteriorate—let us hope that it does not, but in Kosovo and places like that it did deteriorate—what is going to happen and what plans have been made? Let us hope that our forces can be centred around HMS "Ocean" and they can get straight out, but I do not believe that it will necessarily he easy. I hope that the noble Lord will be able to tell us what plans have been made.
4.56 p.m.
Lord Avebury: My Lords, we on these Benches warmly congratulate the commanding officer and the personnel of our Armed Forces in Sierra Leone on their professionalism and efficiency and on the remarkable transformation that they have wrought already in the morale of the Sierra Leone armed forces, which, as the Statement says, has turned the tide against the RUF.
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Will the build-up of the United Nations forces in Sierra Leone to the new strengths that were requested by the Secretary-General in his report to the Security Council of 19th July be complete by the time we are scheduled to leave in mid-June? Will that build-up contain the particular mix of forces for which the Secretary-General has asked, including additional air transportation assets, helicopters, the maritime unit of six armed patrol boats and so on? Have promises been made by contributing states to provide those forces? Do we have the heavy lift capacity to bring them into the area by the middle of June when our forces are scheduled to withdraw?
The Statement says that we are aiming to build up an effective armed force in Sierra Leone. Pursuant to a point made by the noble Lord, Lord Burnham, are the Government satisfied that within the proposed timescale the government of Sierra Leone will exert effective control over the three sets of armed forces that are engaged in the battle against the RUF? One is the Sierra Leone army proper, which I understand is quite small. Perhaps the Minister can enlighten us on that point.
When we are talking about training, I assume—he will correct me if I am wrong—that the training will be provided only for the regular armed forces and not for the Kamajors or for the forces under the control of Johnny Paul Koroma, which have been acting in support of the government but which, as I understand it, frequently do their own thing and therefore ought not to be supplied with weapons or ammunition or even training by the British Government. In connection with the transfer of weapons, which is mentioned in the Statement, will we make sure that the serial numbers of all weapons so transferred will be recorded so that if by any chance they do get into the hands of the RUF we can identify them and recover them if possible?
Have the Government considered whether, in consultation with the authorities in Sierra Leone, to request Foday Sankoh to make a radio broadcast calling on the members of the RUF to lay down their arms and to agree to the Lomé accords which provide for their demobilisation and disbandment? Furthermore, the RUF should be requested to release the hostage peacekeepers, 290 of whom are still being held by RUF units. Will the Government join with me in thanking President Charles Taylor of Liberia for the efforts he has made to secure the release of some 260 of the hostages? Can we ask him whether there is anything that we could do to assist in the process of securing the release of the remainder?
5 p.m.
Lord Burlison: My Lords, I thank the noble Lords, Lord Burnham and Lord Avebury, for their helpful comments on the Statement. I should like also to thank sincerely the noble Lord, Lord Burnham, for his well-meant comments in respect of the Government's present policy on this issue.

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The noble Lord asked about the references made in the Statement to the mission of the UK forces. I simply say that, so far as concerns our troops—and as reaffirmed by the Defence Secretary in the House on 15th May—British forces were deployed to allow for the safe evacuation of British nationals and other entitled personnel. Essential to that has been the securing of Lungi airport, which, as the Foreign Secretary said, will be extremely valuable to the United Nations forces as they build up over the next month. That was confirmed by the Prime Minister on 11th May and remains our position today.
As regards the point made by the noble Lord, Lord Burnham, on the effect of the rainy season, which is due to begin shortly, I am sure that that comment will be borne in mind by the strategists when they consider the issue in the round. I am sure that noble Lords share my hope that by the time the rainy season arrives, we shall have been able to withdraw from operations in Sierra Leone.
On the concept of operation, I can say on that issue only that it remains the same. A general pattern has been developed that we should protect and also offer the safe evacuation of British nationals and other qualifying people; that we shall protect Lungi airport and assist the United Nations to bring in its peacekeeping forces over the coming month. The general pattern on plans for withdrawal is now well on course and, in terms of the time-scale that we have allowed for those plans, we are well on course.
The noble Lord, Lord Avebury, raised several issues. As regards morale, I think the actions taken on this occasion by Her Majesty's Government, not only to assist the government of Sierra Leone but also to assist the United Nations in its build-up of forces, have in themselves given a boost to the morale of those involved in Sierra Leone, and in particular the government.
As regards the build-up of United Nations forces and whether that is likely to be completed before our troops are in a position to withdraw, the present indications are that the UN has in place more than 11,000 troops. It appears that the figure that the United Nations has established for the peacekeeping force is well on course to be satisfied. It also appears that we shall be in a position to have the UN forces well established by the time the United Kingdom forces need to withdraw.
Furthermore, the United Nations will charter its own heavy lift equipment. United Nations forces have quickly been built up by the contributing nations. The Russians have provided four attack helicopters that are due to arrive shortly. Our replacement of forces and future withdrawal will be made in parallel with the build-up of the United Nations capability.
A further point made by the noble Lord, Lord Avebury, concerned the training facilities which have been afforded by Her Majesty's Government. It is our intention that those will be dealt with in accordance with the wishes of the government of Sierra Leone. I am sure that his point about the regular armed forces
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is valid and no doubt it will be taken on board. Perhaps I may also assure the noble Lord on the point he made about serial numbers. That, too, will be considered.
5.07 p.m.
Lord Richard: My Lords, my noble friend has spelt out clearly and in great detail the aims and objectives of this intervention. I understand that he has told the House that two aims are being pursued: first, to create a more effective United Nations force; and, secondly, to enable the government of Sierra Leone to restore order in their own country. Those aims are perfectly acceptable and for my part I agree with them wholeheartedly. However, perhaps I may make the point that this has moved a long way from an emergency operation to remove from the airport at Lungi British citizenry who had gathered in a hotel in order for that removal to take place. The situation is no worse for that, but it is different. Because of that difference, I believe that certain extra considerations should now apply.
I should first say in parenthesis that of course I think that our troops have done a superb job. I also think that the rotation being proposed by the Government makes a great deal of sense. However, I think that two questions now arise. First, can my noble friend ensure that the Government do not set down in their plans a firm timetable for withdrawal? If they do, then they may well find themselves in a situation where they cannot live up to that timetable. Given the aims that have been detailed by my noble friend, with which I totally agree, it may be that progress takes longer than we can foresee at this stage, or indeed than we would wish. For those reasons, I hope that the Government will not paint themselves into a corner here.
Secondly, are the Government satisfied that we have obtained Security Council cover for the actions we are taking? I may be wrong, but as far as I know, I do not think that our participation in the recent events in Sierra Leone has been considered by the Security Council in New York. Obviously we are maintaining a close liaison with the United Nations itself and I sincerely hope that, broadly speaking, we are doing what the UN thinks is sensible and what we think it is sensible for the UN to think is sensible. It is important to get the legalities absolutely right. If we do not, we may find ourselves treading on difficult ground. I do not expect my noble friend the Minister—particularly since it is his birthday—to reply in detail on the intricacies of the legal situation so far as concerns the Security Council. I see that my noble friend Lady Scotland is sitting next to him. If one or other of them could undertake to write to me on the matter of Security Council authorisation, I should be grateful.
Lord Burlison: My Lords, I thank my noble friend for his comments and his well-meant words of support. I thank him particularly for the caution he expressed in relation to a timetable. I do not think that noble Lords would want me to comment hypothetically on a timetable or any of the issues concerning our involvement in Sierra Leone. The timetable is on course. British forces were indeed deployed to allow

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the safe evacuation of British nationals and other entitled personnel. An essential has been the securing of Lungi airport. As the Foreign Secretary has said, it will be extremely valuable in allowing United Nations forces to build up during the next month. That was reaffirmed by the Prime Minister on 11th May and it basically remains our position today.
In response to the further point made by my noble friend, I assure him that, throughout, close contact has been made with the United Nations. Indeed, Kofi Annan has welcomed British involvement. I assure my noble friend that the most deep and concerning consultation has taken place with the United Nations throughout the whole of our involvement.
The Earl of Onslow: My Lords, first, may I thank the Minister for informing the House of the stunningly original fact that West Africa is hot, damp and unhealthy? Secondly, will he please clarify a statement made by Mr Hain as reported in The Times—a journal of record? He is quoted as saying that,
"Sierra Leone is a British colony".
He is further quoted as saying that the training delegation will not be sent in while the war is on at "full tilt". Does that mean that the training delegation waits until the war is over, when it will not be necessary; or waits until the war is lost, when it will be too late? Furthermore, what will happen if there is a longer than temporary occupation. I draw the noble Earl's attention to what Gladstone said about Tel-el-Kebir; namely, that it would be a temporary operation—and the campaign lasted from 1882 to 1956. Are reserve troops ready to go to Sierra Leone when it is time to relieve the Royal Marines, as will undoubtedly become necessary?
Lord Burlison: My Lords, I am in some difficulty as regards the newspaper item referred to, and while I accept the noble Earl's back-handed compliment about informing the House of the conditions in Sierra Leone, it is not my intention to comment on any statement by Peter Hain as reported in the press. I hope noble Lords will appreciate that I would not wish to go down that particular route. On the noble Earl's further point, again that is a route that I do not wish to go down. We have set out what is our stated mission in Sierra Leone. It is our intention to carry that out on the basis on which it is presented. I do not want to indulge in hypothetical discussion on what is likely to happen afterwards. If' there are further developments in relation to Sierra Leone, your Lordships will be informed in the normal fashion.
Viscount Waverley: My Lords, does the noble Lord believe that there should be a degree of flexibility as regards withdrawal? Do the Government feel obliged to keep our forces in Sierra Leone until all the hostages are released? Specifically, did the 1st Battalion the Parachute Regiment have to borrow troops from other units before going to Sierra Leone in order to ensure full strength?
Lord Burlison: My Lords, on the noble Viscount's first point, throughout the course of events in Sierra
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Leone the appropriate discussions have taken place and we have been in consultation with the United Nations. Regarding his question as to whether the Paras needed reinforcements before leaving for Sierra Leone, I do not have the answer and I shall write to the noble Lord.
Baroness Ashton of Upholland: My Lords, I congratulate the Government on the Statement. What use has the United Nations been able to make of our holding the airport?
Lord Burlison: My Lords, I did not quite catch my noble friend's question. I assume that she was referring to the progress we have made as regards capturing the airport.
Baroness Ashton of Upholland: My Lords, perhaps I may put the question again. I apologise to my noble friend; I probably spoke too quickly. I asked what use the United Nations has been able to make of our holding the airport.
Lord Burlison: My Lords, I apologise to my noble friend for not catching her question initially. The United Nations has certainly appreciated our involvement and it has complimented us in relation to our activities. The United Nations has been quick to respond. Its response has been robust, effective and highly capable. It allows the UN to continue to build up the necessary resources, which will be helpful in our withdrawal from Sierra Leone.
Lord Blaker: My Lords, since the British Government played a major role last year in securing the Lomé Agreement, which brought into government Mr. Foday Sankoh, the leader of the rebels, as Minister responsible for the diamond mines, have the Government given any thought to the kind of political solution they would like to see after the present troubles are resolved? If I understood the Statement correctly, the Secretary of State appears to have said that the situation after the settlement should be in line with the Lomé agreement. As the agreement does what I have just described, and also brings the rebel forces into the armed forces of Sierra Leone, is that really what the Secretary of State said, and did he mean that?
Lord Burlison: My Lords, it is the wish and intention of Her Majesty's Government that we are able to assist in the establishment of a democratic regime in Sierra Leone. It is for the people of Sierra Leone eventually to determine the basis of that government.
Lord Craig of Radley: My Lords, I thank the Minister for repeating the Statement. I echo his comments about the way in which British forces have performed their duties. One way of judging Her Majesty's Government's view about the future security situation is the advice being given to British nationals and others about leaving Sierra Leone and/or about when it may be safe for them to return. What advice is being given by the Foreign Office? If the

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present advice is that people should leave, can the noble Lord say when the situation will be sufficiently stable for nationals to return?
Lord Burlison: My Lords, the present advice remains that British nationals should leave Sierra Leone. So far there have been 442 evacuations of entitled persons from Sierra Leone. A good number of British nationals and others who are entitled to leave still remain in that country. Our advice is that they should leave. However, we shall constantly reflect upon the circumstances in Sierra Leone.
Lord Swinfen: My Lords, the other day the papers reported that when the commanding officer of the 1st Battalion the Parachute Regiment visited a naval vessel he was asked to divest himself of his clothes which stank so that they could be laundered and he could have a bath. In that part of the world the climate is most unpleasant. What arrangements are being made for the troops to have proper laundry and bathing facilities for the sake of their health? In addition, I suspect that the troops are being fed on compo rations which at best can be described as boring. What arrangements are being made for troops to have fresh food, particularly fruit and vegetables? The noble Lord has already said that the Parachute Regiment is to be replaced by the Royal Marines. What is happening to the support troops? Are they also to be replaced in due course?
Lord Burlison: My Lords, I appreciate the noble Lord's concern about British troops. I regard the 1st Battalion as the crème de la crème of British Armed Forces. I am sure that those troops are capable of looking after themselves in the circumstances. In addition, it is the desire of the British Government that those troops should have all that they need to fulfil the role that they are now playing in Sierra Leone. I am sure that that will be forthcoming. If not, those troops are very capable of making us aware of the circumstances.
Lord Hoyle: My Lords, I am sure that the whole House will join me in wishing my noble friend a very happy birthday.
Noble Lords: Hear, hear!
Lord Hoyle: My Lords, does my noble friend agree that already the presence of British troops has brought about greater stability in Sierra Leone? Will my noble friend join me in congratulating those troops on their efforts to bring about order and a peaceful solution to the unhappy state of affairs in that country?
Lord Burlison: My Lords, I thank my noble friend Lord Hoyle for his good wishes. People who reach my age begin to try to forget birthdays. When I arose this morning I hoped that nobody would be aware that I was a year older. I thank my noble friend for his comment about the confidence that has been built up
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in Sierra Leone by the involvement of British troops. I am sure noble Lords agree that our Armed Forces have been responsible for raising the morale not only of troops generally in that area but of the Government of Sierra Leone and that country's immediate neighbours. Morale has been raised immensely by the involvement of our troops.
Baroness Park of Monmouth: My Lords, can the Minister tell the House what mandate is to be given to the UN troops whose numbers are now to be greatly increased? When they went to Sierra Leone it was intended that they should collect arms from what was believed to be a group that had agreed to give them up. They found themselves confronted by a war and people who, thanks to the Lomé Agreement, now possess the diamond fields. Is anything being done by HMG to get the Security Council to change the UN mandate to the waging of war in order to restore the situation, regain the diamond fields and give the people of Sierra Leone some prospect of surviving? If we merely let the UN troops go there, do nothing and eventually withdraw, so that they are discredited not only in that country but in the rest of Africa, it will all have been for nothing. What is being done to change the UN's mandate so that the people of Sierra Leone may regain the country which they lost thanks to the Lomé Agreement?
Lord Burlison: My Lords, I assure the noble Baroness that the mandate of the United Nations remains the same. If it is necessary to respond in the way suggested by the noble Baroness I am sure that that will be taken on board. If it is necessary to make an approach along those lines, that will be the course of action which develops in future.
Lord Shepherd: My Lords, in the few seconds that remain perhaps I may be allowed to make an observation. I understand that the purpose of these proceedings is to put questions on the Statement. I believe that noble Lords have gone very much further than that in their questions to the Minister, who obviously has not come prepared to deal with such a wide range of issues on matters which do not relate to the Statement. Perhaps I may suggest to the Front Bench that this is a matter that should be considered by the Procedure Committee.

Terrorism Bill
5.27 p.m.
House again in Committee.
Schedule 5 [Terrorist Investigations]:
Lord Bachmoved Amendment No. 59:
Page 98, line 34, leave out ("procurator fiscal") and insert ("sheriff).
The noble Lord said: The Committee turns now to eight government amendments which relate to Schedule 5. All of the amendments are minor drafting amendments to Part II of the schedule and apply only

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to Scotland. Amendment No. 59 corrects an unintended reference to the procurator fiscal in paragraph 22(5). The reference should be to the sheriff. The other amendments ensure consistency in drafting between Part I relating to England, Wales and Northern Ireland and Part II relating to Scotland. I beg to move.
On Question, amendment agreed to.
Lord Bachmoved Amendments Nos. 60 to 66:
Page 99, line 47, leave out ("discharge") and insert ("recall").
Page 101, line 19, leave out from ("that") to ("immediate").
Page 101, line 21, leave out ("possible") and insert ("is reasonably practicable").
Page 101, line 28, leave out ("without reasonable excuse").
Page 101, line 29, at end insert—
("( ) It is a defence for a person charged with an offence under sub-paragraph (3) to show that he had a reasonable excuse for his failure.").
Page 101, line 42, leave out ("or 32 or").
Page 101, line 42, at end insert ("or a notice under paragraph 32").
The noble Lord said: I beg to move Amendments Nos. 60 to 66 en bloc.
On Question, amendments agreed to.
Schedule 5, as amended, agreed to.
Clause 38 agreed to.
Schedule 6 [Further appeal]:
Lord Bachmoved Amendment No. 67:
Page 102, line 19, after ("liable") insert ("on summary conviction").
The noble Lord said: In moving the amendment, I speak also to Amendment No. 68. They are minor and technical drafting corrections suggested by parliamentary counsel. Amendment No. 67 uses the standard language where the offence is a summary one. The second amendment removes a word which has somehow slipped into the text. They do not change the effect of provisions in any way. I beg to move.
On Question, amendment agreed to.
Lord Bachmoved Amendment No. 68:
Page 103, line 7, leave out ("person").
On Question, amendment agreed to.
Schedule 6, as amended, agreed to.
Clause 39 agreed to.
Clause 40 [Terrorist: interpretation]:
Lord Lloyd of Berwickmoved Amendment No. 68A:
Page 18, line 41, leave out paragraph (b).
The noble and learned Lord said: The amendment makes sense only if it is taken with Amendment No. 142A. The later amendment solves the difficulty which I have with Clause 40 as drafted.
Clause 41(1) creates a new statutory power of arrest without warrant. There would be nothing wrong with that if, under Clause 41(1), being a terrorist were itself an offence. It would then follow the ordinary law under Section 24 of the Police and Criminal Evidence
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Act under which the police can always arrest without warrant when they have reasonable suspicion that an arrestable offence has been committed. The trouble is that being a terrorist is not an offence. It is an offence so far as it is covered by Clause 40(1)(a), and if the definition of "terrorist" had stopped there there would have been no problem. But the definition does not stop there. It continues in Clause 40(1)(b), and it is the combination of the power of arrest in Clause 40(1) with the wide words of Clause 40(1)(b) that I have great difficulty in accepting. Being concerned,
"in the commission, preparation or instigation of acts of terrorism",
is not itself an offence.
The wide power of arrest to which I have referred is far wider than anything that would be permissible under the Police and Criminal Evidence Act, but that is only the start of the problem. The much greater problem is that it is also inconsistent with what is permissible under the Human Rights Act.
Article 5(1)(c) of the human rights convention allows a person to be arrested for the purpose of being brought before a court on reasonable suspicion of having committed an offence. It is thus very similar to the ordinary English law, and that is perhaps not surprising because the convention itself is, as I suspect we all know, based on English common law. However, the convention is clear. It allows an arrest where a person has committed an offence. It does not permit the power of arrest on reasonable suspicion that a person is concerned in acts of terrorism in general. You must be able to point to a specific offence which he has committed.
The position will become even clearer, and the problem even more difficult, when the Human Rights Act becomes part of English domestic law. In English law, when you arrest a person you must inform him of the offence of which you suspect him. How could that happen in the case of a person arrested under Clause 40(1)(b) when it does not itself create an offence? The answer is that the police officer in those circumstances could not inform the person arrested of what offence he was suspected.
So what will happen when the Human Rights Act becomes part of English domestic law? Let us suppose that one has a person who is arrested. He has committed no offence under Clause 40(1)(a) but is suspected of being a terrorist in general under Clause 40(1)(b). Let us suppose that he challenges the validity of his arrest, as he almost certainly would. The case will then come before the courts, and very probably end up before this House in its judicial capacity. Putting it at its very lowest, there must be a grave doubt whether the validity of his arrest would be upheld. There would then be a declaration of incompatibility under the Human Rights Act and Clause 40 would come back again before this House in its legislative capacity in order to make it compatible with the Human Rights Act by amendment—perhaps the omission of Clause 40(1)(b) as it stands. Surely it makes sense to get it right now rather than to leave it until that point has been decided by the courts.

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When I mentioned this difficulty at Second Reading, the Minister referred in his reply to a case called United Kingdom v. Brogan which came before the Court of Human Rights. However, the case did not decide what I think the Minister believes that it decides. The whole point of that case was that the applicants there were suspected of being members of a proscribed organisation, which is a specific offence, and suspected of various other specific offences. They were not suspected of being involved generally in acts of terrorism, as the Government were at great pains to point out. It was not on that ground that the European court decided at that point in favour of the United Kingdom. Perhaps I may read briefly from the judgment since the case was referred to by the Minister at Second Reading. At page 130 it states:
"In this connection, the government pointed out that the applicants were not in fact suspected of involvement in terrorism in general, but of membership of a proscribed organisation and involvement in specific acts of terrorism, each of which constituted an offence under the law of Northern Ireland and each of which was expressly put to the applicants during the course of their interviews following their arrests".
Therefore, if the Government still rely on United Kingdom v. Brogan in support of that defence of Clause 40 as it currently stands, I suggest that they are on very weak ground.
What is to be done? I suggest that things cannot stay as they are; at the very least, it would not be wise to leave them as they are. There is an obvious solution at hand. It is to make Clause 40(1)(b) into a specific offence under the Bill. If that were done, all the difficulties would disappear and the power of arrest under Clause 41 could no longer be challenged.
That is the purpose of my second amendment, Amendment No. 142A. It might seem far reaching but it is not. It was first proposed as an offence long ago by a committee under Lord Gardiner. I adopted the proposal in my report and repeated my views in commenting on the Government's consultation paper on the Bill. However, they simply answered that in their view the creation of the new offence was not the way ahead. I ask why not. What is wrong with the proposed new offence? It follows conveniently after Clause 56, which makes it an offence for a person to direct the activities of an organisation which is concerned in the commission of acts of terrorism. If the director can be liable, why should the member of the organisation not be liable? Why should the individual not be liable even if he is not a member of an organisation?
Clause 57 provides the offence of possession for terrorist purposes. It makes it an offence if a person,
"possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of acts of terrorism".
Why should the possession of an article make all the difference? Let us suppose that there was convincing evidence from, say, an informer that a person was instigating or preparing to commit an act of terrorism at a certain place and on a certain date. Surely it would
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make sense that that person should be arrested before rather than after the bomb goes off. Why should the instigation and preparation not itself be an offence? Why should it be an offence only if the instigator is himself in possession of the bomb, which he almost certainly would not be? It does not make sense. If a new offence were inserted between Clauses 56 and 57, it would be added to the list of offences in Clause 40(1)(a) and Clause 40(1)(b) could be omitted without loss.
In summary, I suggest that the new offence is highly desirable in itself and at one stroke it would solve the difficulty under Clauses 40 and 41. Apart from the definition of terrorism in Clause 1, to which I hope we shall be able to return on Report and reach an agreed solution, I am more concerned about Clauses 40 and 41 than any other provisions in the Bill. I beg to move.
Lord Hylton: I hope that I have followed the logic of my noble and learned friend in his three amendments. However, I notice that he has not tabled an amendment to delete Clause 41(1). Is he therefore happy that it should remain in the Bill?
Lord Lloyd of Berwick: No, I certainly do not wish Clause 41(1) to be deleted. It creates the power of arrest, which is essential. The problem is that that is fine so far as it relates to Clause 40(1)(a) but it is very far from fine so far as it relates to Clause 40(1)(b).
5.45 p.m.
Lord Avebury: I rise to speak to my Amendment No. 68BA. Having listened carefully to the noble and learned Lord, I am no wiser than he is about why the Government did not accept the recommendation in his report to create a specific offence of being concerned in the commission, preparation or instigation of acts of terrorism.
If I may venture to speculate, the ambiguity lies in the phrase "being concerned in". If one created an offence of committing, preparing or instigating acts of terrorism, those would be substantive acts. However, I am not sure that the courts would find it easy to interpret "to be concerned in" an act. Perhaps the phrase "being concerned in" occurs in the PTA and elsewhere and does not cause that difficulty. As the noble and learned Lord was speaking, I was struck by the thought that that may have been the reason why the Government were hesitant in accepting the recommendation in his report.
However, he has put his finger on the mischief that is caught by the combined offence under Clauses 40(1)(b) and 41(1). I have approached that from a different angle; that of amending Clause 41(1). I have removed the words "be a terrorist" and inserted:
"have committed or to be about to commit an act of terrorism within the meaning of section 1".
That would still mean that a person who is concerned in the commission, preparation and instigation of acts of terrorism would not be liable to arrest without a warrant, but the noble and learned Lord believes that

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he should be. However, if the two provisions remain as they stand, it would be a contravention of Article 5.1(c) of the ECHR.
Again, I ask the Minister to explain to the Committee how he can possibly have concluded that the provision is compatible with the Human Rights Act. It passes my comprehension. The particular article in the convention permits arrest to bring a person before a competent legal authority, first, on the grounds of reasonable suspicion of having committed an offence; secondly, as a necessary measure to prevent the person from committing an offence; and, thirdly, in order to prevent a person from fleeing, having already committed an offence. The second ground—that is, to prevent a person from committing an offence—has been interpreted by the European Court as meaning that the anticipated offence must be a concrete and specific act. That was in the case of Guzzardi v.Italy.
Therefore, I agree with the noble and learned Lord that together the clauses as they now stand contravene Article 5.1(c) and also possibly Article 5.2, which requires anyone who is arrested to be informed of the reasons for his arrest. I hope that the noble Lord will listen to the advice that he has been offered by the noble and learned Lord, Lord Lloyd, with the wide experience and background that he has in these matters. We cannot allow the wording of these two clauses to remain unaltered. I hope that when the Minister comes to reply he will assure the Committee that something will be done by the Government before we reach Report stage so that we do not have to return to the matter again.
Lord Cope of Berkeley: First, for the record I make an extremely small point. I believe that there is a misprint on the Marshalled List, which states "leave out paragraph (6)". It should, of course, read "leave out paragraph (b)".
I find the noble and learned Lord's formulation of what we are trying to achieve much more satisfactory than the terms of the Bill. I do not believe that there is a great deal of difference in what the Government and the noble and learned Lord and others are trying to achieve. The question is how to achieve it through the most satisfactory wording.
However, this matter concerns more than simply a drafting point. If the noble and learned Lord is correct, as I believe he is from my knowledge, which is so much less than his, that the European Convention on Human Rights, and particularly the writing of it into our own domestic law, will upset this provision and make it inoperable, that, of course, is a serious matter. We all want it to be possible to arrest terrorists and for powers to be used in a preventive capacity in order to avoid the bomb going off, and so on. We all want that. The question is how to achieve it and make it stick if it comes to a court case.
One of the features of virtually all terrorist offences is that they require a great deal of elaborate preparation. They involve many people. They often involve passing a gun, both before and after its use,
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between various carriers so as to avoid detection and to avoid the person who does the shooting being caught with the weapon. The events which surround the commission of a murder or the letting off of a bomb are as much terrorist offences and as essential to the satisfactory execution of the offence as the actual firing of the gun. That is why it is important to catch and to be able to convict the other people who are involved.
It is said that this produces an extension of the offences under the Act. It does, but it is a very small extension given, as the noble and learned Lord pointed out, that membership of a proscribed organisation, direction and other things akin to it are already offences. The extension proposed in Amendment No. 142A is very small but I believe valuable.
I wish to make one or two small points. Clause 42(1), which deals with the search of premises, depends on Clause 40(1)(b)—the paragraph that the amendment seeks to delete—and clearly would need to be modified. I do not believe that,
"a person falling within section 40(1)(b)",
is very happy wording. However, we are not concerned with its happiness or otherwise; we are concerned with the fact that that wording needs to be modified as well.
Another point that I wish to make is that, rather curiously, none of this applies to the offences set out in Clause 13. All the other relevant clauses seem to be listed, but Clause 13, which concerns the wearing of a terrorist uniform, is omitted. However, there is a specific provision in Clause 13 for arrest in Scotland n that connection. But that seemed to me to be odd.
So far as concerns the point made by the noble Lord, Lord Avebury, about the words "concerned in", as those words occur in both the Government's draft in the Bill and in the noble and learned Lord's amendment, I am prepared to accept them as being necessary in order to catch the people who are peripheral to the key offence, be it murder or whatever. Therefore, I support the amendments.
Lord Goodhart: The noble and learned Lord, Lord Lloyd, has put his finger on what he has shown beyond doubt to be a serious defect in the drafting of Clauses 40 and 41. It is more than a pure technical defect and will require a rethinking of the operation of those clauses. I believe that the solution that he has found certainly goes a long way to dealing with the problem. Unlike the noble Lord, Lord Cope, I have a certain concern about the use of the word "concerned". I believe it is arguable that that is rather too broad and general a word, and I should be interested to hear what the noble and learned Lord has to say when he winds up this debate.
Therefore, I am inclined to prefer a solution more on the lines, if perhaps not in the identical words, of that put forward by my noble friend Lord Avebury to make it clear that a specific offence must have been committed or is about to be committed by the person who is arrested.

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So far as concerns the word "concerned", I believe that my worry has been increased by looking at Clause 3, which refers to the question as to when an organisation is concerned in terrorism. Under Clause 3(5),
"an organisation is concerned in terrorism if it—

(a) commits or participates in acts of terrorism,

(b) prepares for terrorism,

(c) promotes or encourages terrorism, or

(d) is otherwise concerned in terrorism".

While paragraph (d) is extremely general, paragraphs (a), (b) and (c) are fairly specific. When creating a new offence, I wonder whether it would not be desirable to be as specific as are paragraphs (a), (b) and (c) of Clause 3(5). Again, that is a point on which I should be interested to hear what the noble and learned Lord has to say. However, I believe that his own amendment, Amendment No. 142A, is perhaps not yet quite tight enough with regard to his definition of what is the requisite degree of involvement in an act of terrorism.
Lord Bassam of Brighton: I am extraordinarily grateful to the noble and learned Lord, Lord Lloyd, for the way in which he has advanced his arguments this evening. I rather felt that we were at a learned disputation on the subject, and I found it very helpful.
The arguments that the noble and learned Lord set out are not entirely new to us. He set them out before in his report on the legislation against terrorism, and he made them very fully in his response to the Government's consultation paper and again with great courtesy at Second Reading of the Bill. I am drawn to conclude that it is rather strange to hear in the year 2000 that a power that has been on the statute book for some 25 years, unchallenged, as it has been, since the Brogan case, suddenly is fatally flawed. However, the noble and learned Lord has advanced a good argument.
The Government have not reached lightly the conclusion that the power is compatible with the convention. We can see serious drawbacks to the amendment of the noble and learned Lord, Lord Lloyd. For that reason, we shall not yield on this issue. One or two noble Lords have drawn attention to some drafting flaws, if nothing more. However, we wish to take up some fundamental issues against this amendment. We have looked very carefully at the points made by the noble and learned Lord, but, as I said on Second Reading, this is an issue on which, with the greatest respect, we have formed a very different view, and I shall set out why.
The Government are not persuaded that it is necessary to create a separate and new offence of terrorism; nor do they believe that that would be entirely desirable.
I deal first with the necessity for the offence. The noble and learned Lord, Lord Lloyd of Berwick, proposes an offence of terrorism primarily, it seems, because of his quite understandable concern that the arrest power under the Bill would not otherwise comply with Article 5(1)(c) of the ECHR, which
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provides that a person's arrest must be effected for the purpose of bringing the person before a competent legal authority on reasonable suspicion of having committed an offence. With the greatest respect, the Government take a different view.
In Brogan v. the United Kingdom in 1988 the Government argued successfully that it was not necessary to have arrested someone under the Prevention of Terrorism Act arrest power in connection with a specific offence in order to be compliant with Article 5(1)(c) of the convention. They argued that the way the arrest power was formulated in terms of being concerned in the commission, preparation or instigation of acts of terrorism should be regarded for convention purposes as a power of arrest for an offence.
The Court accepted that submission, saying that the arrest and subsequent detention of the applicants were based on a reasonable suspicion of an offence within the meaning of Article 5(1)(c).
While the Government recognise that no particular case can settle an ECHR point for all time—that has to be the case—and that the Court underlined that the particular circumstances of the Brogan case influenced the decision it took, the Government continue to be of the view that a terrorist arrest power, without an explicit link to a specific offence, is compatible with the ECHR and Article 5(1)(c) in particular. It was on that basis that the Section 19(1)(a) Human Rights Act certificate was signed.
6 p.m.
Lord Avebury: Would the noble Lord remind the Committee whether the case of Brogan came before or after the case of Guzzardi v. Italy in the European Court and whether or not in the case of Guzzardi, it was ruled that the anticipated offence must be a concrete and specific act?
Lord Bassam of Brighton: I thank the noble Lord for his question. I shall undertake inquiries and respond to him in due course.
I am aware that parties other than the noble and learned Lord have expressed concern about the vulnerability of the terrorist arrest power in the Bill to a successful challenge by the ECHR. The concern appears to focus on the fact that it was the particular circumstances of the Brogan case that resulted in the Government's case being upheld and that such a result could not be relied upon in future cases.
That gives me the opportunity to reiterate the Government's position on the way in which the specific Section 14(1)(b) terrorist power of arrest under the PTA works and how it is envisaged that the terrorist arrest power will operate under the Bill. The arrest power will be available for use where, and only where, a constable has reasonable suspicion that a person is or has been concerned in the commission, preparation or instigation of acts of terrorism; and the purpose will be with a view to securing sufficient usable and admissible evidence in criminal proceedings against the person concerned.

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The Court in Brogan ruled that the reference in Article 5 to an "arrest for an offence" included arrest for this purpose, and we rely on that position. It follows from what I have said that we do not agree that it was necessary to create an individual offence of being involved in terrorism. The question therefore is whether it might be desirable for any other reason to create such an offence, and on balance the Government think not.
The activities in which terrorists engage are, we believe, already caught by specific criminal offences. The situation has moved on significantly since the Gardiner report in 1975, to which the noble and learned Lord referred earlier. That recommended the individual offence of terrorism. We now have offences of, for example, directing a terrorist organisation, recruiting and training. Indeed, we believe that the Bill plugs a few gaps in that respect in that certain of these offences have up to now been available only in Northern Ireland and their extent is now broadened to be UK-wide.
On balance the Government prefer to rely on the existing offences under the criminal law, which they believe adequately cover the ground, rather than to create an additional individual offence of terrorism, which the noble and learned Lord's approach would deliver. That approach is also consistent with our view that the occasions on which terrorists are treated differently from "ordinary" criminals should be kept to an absolute minimum. I know and understand that the noble and learned Lord, Lord Lloyd, supports that. Because of the way terrorists are organised, financed and operate, dealing with such persons requires special measures, but their acts remain the ordinary callous acts of murder, bombings, arson and so forth, and we believe that they should be recognised as such.
It is with regret that the Government have taken the view that they cannot agree with the proposals of the noble and learned Lord, Lord Lloyd, for the creation of an act of terrorism. I hope that the Committee has found my explanation of our position helpful.
The police have found the current arrest power, with its link into a separate offence, operationally invaluable, and they certainly support our proposal to retain this approach in the new Bill.
I hope that the noble and learned Lord will reflect on the points that have been made and perhaps not press his amendments this evening.
I turn now to the amendment in the name of the noble Lord, Lord Avebury. This provides that the terrorist arrest power may be used only in connection with a person a constable reasonably suspects to have committed or to be about to commit an act of terrorism within the meaning of Clause 1. We believe that this amendment unduly narrows the availability for the arrest power in a very unhelpful way. First, it is not clear that all the terrorist offences listed in the Bill will be caught by the formula "have committed or to be about to commit an act of terrorism" For example, it is by no means certain that the terrorist fund-raising clauses would be caught; nor, indeed, the offence of
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directing a terrorist organisation, which is to be found in Clause 54. Yet we believe it is essential that the terrorist arrest power should be just as much available in connection with those who support terrorism in less direct ways, such as these, as for those who actually undertake the terrorist acts themselves. I think there has been common agreement to that approach.
Also, the Government think that a move to the formula of a person who a constable reasonably suspects to have committed or to be about to commit an act of terrorism from the current formula concerning the commission, preparation or instigation of acts of terrorism again narrows unacceptably the arrest power. It does not explicitly include acts which, behind the scenes, support the commission, preparation or instigation of acts of terrorism.
The Government do not want the police to be in a position where they may only be able to arrest the man actually with the bomb. That would be ridiculous.
The Government are not persuaded that, having accepted that there should be a special terrorist arrest power, it should be available only to respond to some of the more front-line actions in which terrorists engage. Moreover, the arrest power and the linked detention regime is of particular use when there is a reasonable suspicion of involvement in terrorism but it is not yet clear what that involvement actually amounts to. That is where the additional time to check statements, run forensic tests and carry out other operational matters is most valuable, and yet the amendment would mean that the terrorist power of arrest would not be available in those very important circumstances.
The police are firm in the view that the special arrest power has been the key to their ability to prevent, disrupt and investigate terrorism. I believe that to modify the power as the noble and learned Lord suggests would seriously hinder their effectiveness and I would hope that, on reflection, he would not wish to press his amendment.
The noble Lord, Lord Avebury, asked me a specific question. I do not have the answer to that question this afternoon, and nor do my officials. I am more than happy to carry out some research so as to provide an answer to that point. If the noble Lord is satisfied on that point, I shall write to him and provide those details to other Members of your Lordships' House.
Lord Lloyd of Berwick: I am grateful for what the Minister said, although I am not sure that he has carried the matter much further than he did on Second Reading. I shall certainly study what he said with great care. I am grateful also for what other Members of the Committee have said.
It may be that the proposed new offence is drafted somewhat too widely. The reason that the words,
"concerned in the commission, preparation or instigation"
of offences are included in the proposed new offence is that that was the wording I found in the existing legislation. But I notice that the words "concerned in"

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are not to be found in the offence originally proposed by Lord Gardiner. There is possibly scope for redrafting to make it tighter.
As I say, I shall study what the Minister said. This is an important point. I hope that the Government will have second thoughts on the matter. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 68B not moved.]
Clause 40 agreed to.
Clause 41 [Arrest without warrant]
[Amendment No. 68BA not moved.]
6.15 p.m.
Lord Goodhartmoved Amendment No. 68C:
Page 19, line 10, leave out ("48") and insert ("36").
The noble Lord said: Four amendments in this group, standing in the names of my noble friends and myself—Amendments Nos. 68C, 95A, 103A and 103B—have been instigated by the Law Society and we have agreed and are pleased to put them forward.
Amendments Nos. 68C and 95A require certain rules as to the time a person can be held on the authority of the police to be brought into line with the times provided in the Police and Criminal Evidence Act, generally known as PACE. Under Clause 41, the time during which someone who has been arrested can be held without charge on the authority of the police without the need for any judicial intervention is 48 hours. Under PACE, the equivalent period is 36 hours.
There is no justification or need for different time limits under this Bill and under PACE, most obviously because most of the offences which are likely to lead to arrest under Clause 41 will themselves be offences to which PACE applies. Therefore, since PACE requires the period to be limited to 36 hours, it means that the period will, in effect, be 36 hours in any event.
Thirty-six hours should be quite sufficient to enable a competent police officer to investigate an offence and decide whether or not to charge or request a further period of detention. Obviously, a suspect can be detained longer but not simply on the say-so of the police and 36 hours seems an appropriate period for this Bill as well as for PACE within which the police should be required to obtain judicial authority for the continued detention of the suspect.
The effect of Amendment No. 95A is again to ensure that a judicial review takes place not only at the end of the first 36 hours but at successive intervals of no more than 36 hours thereafter. As matters stand, an accused person may be detained for up to seven days from the time of his arrest subject to only one review by a court after 48 hours. That is under Schedule 8. This amendment would ensure that a judicial review takes place every 36 hours.
Under PACE, if a court decides to allow a period of further detention, it is only for 36 hours at a time, unlike in this Bill where the police could detain a
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suspect for a further period of five days without having to satisfy a court at any time during that period that the continued detention was necessary and justified.
It is crucial that continued detention is regularly and independently justified and that the judicial authority is satisfied that the police conduct their inquiries expeditiously.
The second two amendments in the group concern a different aspect of detention; namely, the right of representation of the suspect when the question of the suspect's continued detention is being considered by the court.
The problem arises because under paragraph 35(3) of Schedule 8, on the hearing of an application for extension of detention under Clause 41, it is provided that,
"A judicial authority may exclude from any part of the hearing … both the person to whom the application relates",
that is, the suspect, and,
"anyone who is representing him".
Potentially, that means that the suspect might have nobody in a position to defend him and may be faced with the position where the case for continued detention is being put by the police alone.
Amendments Nos. 103A and 103B are alternative amendments. Perhaps I may first take Amendment No. 103B because it is more far-reaching. The effect of the amendment is to ensure that a decision on further detention is not made by a judicial authority without the authority taking into account the suspect's responses to the reasons asserted for the need for continued detention. It does so by making subparagraph (3) ineffective if that would prevent the suspect from responding fully to the reasons given for the request for continued detention.
The alternative is Amendment No. 103A which makes sub-paragraph (3) apply only on the application of the Crown prosecutor or authorised advocate or litigant. The purpose is to ensure that if an application is made for continued detention at a time when the suspect and his representative have been excluded, there is at least an independent and objective legal element present in the court to ensure that the matter is not dealt with solely by the police, the Crown prosecutor or the authorised advocate being the person in question.
If one or other of the amendments is not accepted, there is a serious risk of miscarriage of justice. What is required is that there should be either a representative of the suspect present or, at least, somebody who is independent of the police, legally qualified and subject to a professional duty to be fair and who has considered the public interest need for such an application. I beg to move.
Lord Cope of Berkeley: The noble Lord, Lord Goodhart, said that he thought that there was no justification for a time-limit of 48 hours instead of 36 hours for detention in line with PACE. I believe that there is justification and that justification is clearly set out in the report of the noble and learned Lord, Lord Lloyd, at paragraph 9.10 and in following paragraphs.

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I shall not refer to that in detail as it is set out in those paragraphs, but he draws attention to the additional problems faced by the police in Great Britain and in Northern Ireland in dealing with terrorist suspects.
Such problems arise from a number of matters. Often cases involve great complexity; sometimes it is necessary to refer to inquiries overseas, and so on; and these days terrorists in Northern Ireland and those from other terrorist organizations—many of them consult and learn from one another—are highly trained to resist interrogation and to resist co-operating with the police in any way. I am quite prepared to go along with the recommendation of the noble and learned Lord, Lord Lloyd, and with the Bill and to stick with the 48 hours.
There are a number of other amendments in this group in my name and those of my noble friends that concern the related matter of who should decide about the extension of detention. The proposal in the Bill is that in future in all cases, including in Northern Ireland, detention should be extended only through judicial authority. "Judicial authority" is defined in the Bill, but basically it is shorthand for judges.
I believe that, particularly in Northern Ireland, it should still be the Secretary of State who is able to decide on the extension of detention beyond the 48 hours. As is mentioned in the report of the noble and learned Lord, Lord Lloyd, the judiciary in Northern Ireland have been, and remain, against having such a responsibility. I can well understand why. I do not want to make the job of the Northern Ireland judiciary more difficult than it is already. I have the highest respect for all that the Northern Ireland judiciary has had to put up with—I hope that is not too weak a term—over many years. After all, some of them have given their lives in the process. I believe that in a matter of this kind we should take the view of the judiciary in Northern Ireland extremely seriously.
However, there is a wider point of principle. In this context I refer particularly to Northern Ireland. If the judiciary become involved in the decision as to whether to extend the period of detention in order to allow an investigation to proceed, they will become drawn into the whole matter of the investigation and its supervision. Necessarily, they will have to consider intelligence evidence that could not be presented in open court but which it would be essential to consider when deciding whether to detain suspects for longer. Quite rightly, in Northern Ireland the separation of the process comes between, on the one hand, the judges, who are responsible for conducting the courts, and, on the other hand, the Secretary of State and the police, who are responsible for investigation, intelligence and weighing up all that. That is extremely important.
We all hope that in future the situation in Northern Ireland will not be as it has been in the past and as it was when I was a Minister in the Northern Ireland Office. We hope that in future peace will reign and that everything will be much easier, as it is, to a large extent in Great Britain. However, this Bill is not planned in its entirety on that supposition. The report of the noble and learned Lord, Lord Lloyd, was written on the
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basis of what to do after peace has been arrived at in Northern Ireland. Quite rightly, part of the Bill takes account of the fact that even if in the next few days a settlement is reached with the main parties in Northern Ireland—as we all dearly hope—there are likely to be terrorists—maybe maverick groups of terrorists that are not under the control of the main terrorist organisations about which we hear so much—still operating and those powers will still be required. I believe that they will be required and I do not believe that we should plan on the assumption that they will not be required. Among those powers are those to which I referred about who decides on the extension of detention.
I appreciate that I am talking entirely about the position in Northern Ireland, as opposed to that in Great Britain. The amendments that I have tabled refer to the whole of Great Britain. In general, the arguments, although not as strong as far as Great Britain is concerned, are similar and while I would be prepared to accept alterations to the amendments to confine this point to Northern Ireland, I believe that it is desirable that the same should happen in both jurisdictions. Although the arguments are not as strong, I believe that they apply on both sides of the water. For that reason I believe that Amendment No. 95, and the others that follow it, are desirable.
Of course, they also have the effect of continuing to ensure that the Secretary of State arrives at a decision in private, rather than the matter taking place in court with representations from the opposite side. I recognise that that is a departure from what one may want in this context, but I believe that it is a justified departure, and such a situation has been the practice up to now. I believe that Amendment No. 95 and the others grouped with it are justified.
Lord Mayhew of Twysden: I warmly agree with what has been said by my noble friend. It is of paramount importance that the reputation and perceived position of the judiciary in Northern Ireland as being wholly independent of the Executive should be preserved. They are jealous of that reputation, which is one that I have never heard seriously challenged even during my time in Northern Ireland from republican sources. They have achieved that tremendous prize themselves and they are rightly jealous to retain it.
I know that it was the view of at least one previous Lord Chief Justice that the jurisdiction that is now sought to be bestowed upon them by the Bill, in place of the jurisdiction of the Secretary of State, would be harmful to that reputation. I am pretty confident, although I cannot absolutely assure the Committee, that that was the view of two Lord Chief Justices. Whether it was the view of one or two Lord Chief Justices, that view is soundly based because, as my noble friend has said, a member of the judiciary would be drawn into deciding matters that would be perceived as pertaining to the Executive role. When one looks at the matters which he would have to take into account in Schedule 8, one sees how sensitive they are.

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It may be said on behalf of the Government that there is a parallel jurisdiction held by magistrates to decide whether or not, after 24 hours—it may be 48—an extension should be permitted. I ask the Government to accept that the matters which magistrates have to take into account under PACE are a world away from the matters which the judiciary would have to take into account in Northern Ireland in terrorist cases.
I suggest also that, if this provision were implemented, we would find significantly less covert information coming forward to the police from informers. They would fear that, no matter what the reputation of the judge hearing the application, somehow or other their identity would get out. That is a fact of life and that would be the advice received by the Government if it has not already been received by the chief constable. I need scarcely mention how important it is, in the battle of terrorism under the rule of law, that there should be an uninhibited supply of information from people who do not wish their identity to be known, or even to risk it becoming known. That is a second important factor to add to that already alluded to by my noble friend.
The last point I should like to make on Amendment No. 95 is that one must always look to see whether a proposed change in the law will be an improvement on what exists at the moment. In that regard it may be helpful for me to mention how the system works at present. As has been made clear, it falls to the Secretary of State to hear an application by the police to extend a period of detention beyond 48 hours and up to a maximum of seven days, which is rarely asked for, before a judicial authority is involved. That procedure is extremely scrupulously operated. In the vast majority of cases the authority is given by the Secretary of State after careful consideration of the application put forward in paper form. Occasionally it may be taken by a junior Minister in the absence of the Secretary of State. On rare occasions it may be given by the Permanent Under-Secretary, but always subject, at the first opportunity, to ratification by the Secretary of State. It is a scrupulously operated procedure. And it is by no means unknown for the Secretary of State to refuse such an application.
Moreover, the operation of that procedure is subject to the surveillance and monitoring of an independent commissioner—it was the noble and learned Lord, Lord Nolan, a few years ago—who has the right to call for all papers in every case in which this jurisdiction has been exercised, and who has the duty to report each year to Parliament on his findings. It is unusual—I do not recall an occasion—for the Secretary of State to be critical of a genuine mistake. Indeed, when a genuine mistake is discovered by officials in the Northern Ireland Office, that is always voluntarily drawn to the attention of the commissioner for subsequent ratification or at least remedy.
The present situation provides a fair and practical safeguard against abuse, given the circumstances of Northern Ireland and the need to combat terrorism. I
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ask the Minister therefore to consider carefully whether it is wise to accede to what has been a nationalist request for a long time—I grant that—but against which powerful arguments can properly be ranged.
6.30 p.m.
Lord Dubs: I appreciate the great experience that the noble and learned Lord, Lord Mayhew, brings to bear on this subject, and that of the noble Lord, Lord Cope. I am sure that they both signed a number of extension orders during their time in Northern Ireland, as I did. But I am not totally persuaded by the arguments deployed in relation to Amendment No. 95.
I signed such orders. They were always meticulously presented. The arguments were clearly stated and on only two occasions did I go beyond the PACE maximum of 96 hours. There was never a request for more than an increment of 48 hours' detention and never for the full five days. But the arguments were clearly presented.
I do not understand why, given the expression "the rule of law" used by the noble and learned Lord, Lord Mayhew, that rule of law is not better fulfilled by a politician extending the period during which an accused person is kept in custody rather than it being done as a judicial process. I had to sign extension orders when I was on duty at the weekend in the absence of the Secretary of State for Northern Ireland, so he would have signed many more than any duty Minister. However, I can recall no occasion when, on the information presented to me about a specific individual or a number of individuals, there could have been any difficulty in a judge looking at the same information and deciding whether or not extension was appropriate.
I am not persuaded by the argument in relation to informers. I do not remember all the details of individual instances and it would not be appropriate, if I could remember them, to refer to them here. But I cannot think of any instance where the manner in which the information was presented to me would have in any way prejudiced the anonymity of an informer had that same information been presented to the judge.
A further point is that at the moment the United Kingdom has a derogation, under the European Convention on Human Rights, to enable this procedure to continue. That derogation may not be permitted in the future. I am not totally familiar with the procedures of derogation but that is my understanding. It seems to me that, as a country, we are sailing close to the wind in continuing a procedure which is not one that is fully in accordance with the European Convention on Human Rights. That will have more focus when the Human Rights Act comes into force in October this year.
Therefore, while bowing to experience, I prefer the system which reflects the rule of law as completely as possible; in a nutshell, that decisions in relation to detention should not be made by politicians; they should be made by judges. Judges can bring the full

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impartiality of their position to bear when making those decisions. It may be that the decisions will be no different and in practice it will make no difference. But the perception of the process will be different and the way in which this country does these things will be perceived to be better done by the judiciary rather than politicians.
The thought that the Northern Ireland system, as it is now, will be extended to other parts of the United Kingdom makes me even more concerned about Amendment No. 95 and the related amendments. I hope that the Government will not be swayed by the arguments we have just heard.
Lord Hylton: I wish to say a few words about the rather narrow point concerning a second review by an independent person after 48 hours following arrest and before the expiration of a period of seven days. I believe that this point is covered by one of the amendments in this group. I am aware that Schedule 8 already provides that there will be a review every 12 hours by a police officer of fairly senior rank.
However, let us imagine a case where the wrong persons have been arrested. They may be people of low intelligence, suffering from mental impairment or learning difficulties, who may, even if they do not suffer from those conditions, have weak characters and be very suggestible. These are the kind of circumstances in which miscarriages of justice have been known to occur in the past. I have in mind the case of the Guildford Four, of which I had some slight personal experience. It seems to me to be rather important that there should be provision for a second review by an independent person.
I should just like to add the suggestion—I do so rather diffidently, knowing that this Bill applies to the whole of the United Kingdom and not just to Northern Ireland—that such a review might be conducted by an ombudsman. After all, he is a person who is not attached to the judiciary or indeed to the executive.
Lord Bassam of Brighton: We have had a most interesting and useful debate, which has focused on the two different approaches from the Benches opposite. The Official Opposition seeks to retain the current position whereby the Secretary of State authorises detention after the 48-hour point has been reached, while the Liberal Democrats support judicial authority but seek to amend the Bill's regime.
I shall turn, first, to the Conservative amendments because these constitute a fairly radical departure from the Government's position. While looking at the amendments of the Official Opposition, perhaps I ought to say how much I welcome the support of the noble Lord, Lord Cope, for the 48-hour police detention. I should add that we are mindful of the position of the judiciary in Northern Ireland. Both the noble Lord and the noble and learned Lord, Lord Mayhew, spoke very wisely of the difficulties that it faces and there are concerns in that regard. However,
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on balance, we believe that our Strasbourg obligations lead us in a rather different direction from that suggested.
I do not accept that this is such a novel matter that it falls outside the natural remit of the judiciary. In fact, I believe that the judiciary is probably best placed to decide on the issue—an argument very ably advanced by the noble and learned Lord, Lord Lloyd, in his report at paragraph 9.19.
I should also like to comment a little on the points raised by the noble and learned Lord, Lord Mayhew. I take very careful account of what he said. Indeed, as my noble friend Lord Dubs said, he has, along with the noble Lord, Lord Cope, considerable experience in such matters, having had to study these cases most closely and make determinations. However, I cannot accept that this is a matter that is so inextricably linked to the executive that it cannot properly be transferred to the judiciary. Although I can sympathise with the arguments put forward by the noble and learned Lord, Lord Mayhew, that the present system works well—there is no question about that—in the light of the ECHR judgment in Brogan, I am afraid that it is not a system that can be maintained in the longer term.
Similarly, I do not entirely agree with the other point made so ably, as always, by the noble and learned Lord; namely, that terrorism cases are a world away from ordinary cases in every respect. The difference is not so stark at the top end. Let us take, for example, cases involving drugs, drug smuggling, gangster activities, and so on. These are similar, though not identical, to some of the sensitivities that apply in PACE cases. So it is not a matter of such cases being entirely different. Although the noble and learned Lord is right to suggest that PACE, with its invigilation conducted by magistrates, cannot be immediately transferred in exactly the same way to the Northern Ireland situation, we believe that the principle of having judicial involvement must be right.
The noble and learned Lord made a further important point about the need in instances of terrorism, especially in the context of Northern Ireland, to protect intelligence sources. We recognise that fact. However, it is best to stress that the role of the judicial authority is very forward looking in that respect. We shall continue fully to consult and ensure that we have the confidence of the police in this matter. Indeed, I am sure that we have that confidence.
As the noble and learned Lord, Lord Lloyd, pointed out on Second Reading, Strasbourg requires judicial authority. In order to maintain executive authorisation of detention, we take the view that the UK would also have to maintain the derogation from the convention, as pointed out by my noble friend Lord Dubs. We believe that it is right in principle that we should comply with Article 5 in this respect. We wish to withdraw the derogation as soon as practicable.
I ask the noble Lord, Lord Cope, to consider most carefully the point that a derogation may be maintained only when there is a public emergency threatening the life of the nation. In that respect, we

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firmly believe that the derogation is safe today. However, I am sure that Members of the Committee will no doubt hope that the situation in Northern Ireland will continue to improve, as it has been, and that we shall be able to reach a point where the derogation could no longer be sustained. I give way.
6.45 p.m.
Lord Mayhew of Twysden: I am most grateful to the Minster for giving way. However, on that very point, is it not the case that, by writing into the Bill and preserving in it the ability to extend for up to seven days the period before which someone has to be brought before a judicial authority, the Government are dwelling upon and perpetuating the present rule that necessitated the derogation from the convention? Further, is it not also the case that, if not in Brogan then in the predecessor case—the name of which eludes me for the moment—it was said in effect by the ECHR that up to four days is all right but seven is too much? That led to the derogation, the validity of which was upheld in the case of Brogan.
Therefore, the argument being made that we really must do our best to conform to the convention and that that justifies rejecting Amendment No. 95—a point also made by the noble Lord, Lord Dubs—does not deal with the point that by keeping the seven-day period we are retaining the fruit of that derogation. In other words, if it is right to retain seven, why is it not right to retain "Secretary of State" in this respect rather than having the judiciary?
Lord Bassam of Brighton: I suspect that that is a rather different point. I do not believe that we would accept that this is a breach of Brogan. If the noble and learned Lord recalls, the case of Brogan turned on a lack of judicial intervention. That is the point we are trying to establish in moving away from the current system. The case was not about the time spent in detention. I believe the noble and learned Lord to be half right, but we are trying to build and create a very different situation. We do not think that we can maintain derogation any longer on that basis.
We believe that we have constructed a system which both meets and goes beyond our convention requirements. It is important for us to do so in terms of pre-charge detention. The minimum requirements were set out in the Schiesser case. We have added to those requirements the right of representation in relation to the hearing. As I said at the outset of my remarks, there is a clear difference in our approach. Fundamentally, we believe that it is right in principle that matters relating to the liberty of the individual should be in the hands of the judiciary. Indeed, I should have thought that there would be general agreement on that point in this place.
However, I move from the fundamental principle at stake and suggest that the next issue for consideration is whether the system proposed in the Bill is workable; we think that it is.
Some have said that this is a difficult role for the
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judiciary but I stress that the role of the judicial authority here is to look forward at whether a case has been made for further detention. That is a role with which the judiciary are familiar, and best placed to judge. There are, of course, concerns about the need to look at sensitive information, as we have said before. This may indeed form part of the police case, but I stress again that the remit is forward looking.
Moving further into the detail of the amendments, the noble Lord seeks to replace the references to the judicial authority with references to the Secretary of State. As he has argued, this leaves the scheme largely intact but produces some interesting, if perhaps slightly odd, results. For example, Amendment No. 101 deletes entirely paragraph 35 of Schedule 8, while Amendments Nos. 102 and 103 seek to alter it. The second approach would give the detainee a right to make oral or written representations to the Secretary of State. Does the noble Lord intend—I cannot believe that this is his intention—that the detainee would appear before the Secretary of State? It is an important point of detail although I shall not dwell on it. We wish to concentrate here on the principle.
We continue firmly to believe that judicial authority—that is, after all, part of the separation of powers—is the right approach. The Opposition have in the past said that they would not be concerned about continuing to derogate from the convention. However, we are concerned about this.
I note what the noble Lord has said and I also note what the noble and learned Lord, Lord Mayhew, has said. I fully accept that there has to be room for more than one view on this matter in particular. However, I ask the Committee to think carefully about our international obligations. I trust that the noble Lord will not press the amendments.
I turn to the Liberal Democrat amendments. I again welcome the support we have received from them on achieving our important policy objectives. I should say at the outset that I appreciate that the amendments are tabled with a wish to improve the regime. That seems to me entirely laudable. While I acknowledge that aim, I am afraid that I cannot accept the amendments. I should like to explain why that is the case in some detail.
Amendment No. 68C would reduce the time the police may hold a detainee from 48 to 36 hours. This issue was carefully considered during the Committee stage in another place and, of course, prior to that by the noble and learned Lord, Lord Lloyd. The Government continue to agree with the noble and learned Lord, Lord Lloyd, that 36 hours is insufficient for the special circumstances of terrorist cases. The noble and learned Lord considered this point in great detail in his report and concluded that the first 24 hours can often be entirely taken up with preliminary processing matters, not least the proper taking into custody and the identification of the detainee. Anyone who has been involved in those matters will be aware of that. Therefore we continue to believe that 48 hours is the right balance. I trust that the amendment will not be pressed.

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Amendment No. 95A would mean that the judicial authority could grant no more than 36 hours further detention per application, up to seven days in total. This may be seen as a compromise position, compared with the approach taken in another place, that the seven day total should be reduced to four. That position was based on a view that seven day detention would be in breach of Brogan, where the European Court found that detention of four days and six hours was a breach of the convention. But, as I explained earlier, in that judgment the case turned on the lack of judicial intervention and not on the time spent in detention itself.
We do not believe that there are convention requirements which would lead us to accept that the detention period should be capped. The next issue is whether, in the absence of a requirement, capping would be desirable. We do not believe that it would be. It is for the police to make out their case. It is difficult, if not impossible, to envisage a case where the police would be able to persuade the judicial authority that five clay detention is essential. However, I do not want to fetter the judicial authority's discretion here. It is, after all, for the judge to decide on the amount of time to be spent in detention.
I return here to the point made by the noble and learned Lord, Lord Lloyd—terrorist cases are not like ordinary crime. That is why we are debating this legislation today. Terrorist crime is inherently different and I am therefore opposed to capping as proposed by the noble Lord. It is better in my view that the time is left at the discretion of the judicial authority.
Finally, Amendments Nos. 103A and 103B seek to ensure that a detainee can be excluded from proceedings only if certain requirements are met. I am happy to set out our thinking behind those provisions, which I hope will reassure the noble Lord as to our intentions.
As I said earlier, we have based the regime on Schiesser requirements. That includes a right to appear before the judicial authority. Here, the detainee has a right to make written or oral representations and we consider this to be absolutely crucial. The judicial authority must hear both sides of the case or his discretion will be fettered and, although he must be a member of the judiciary, without this provision the regime would not be judicial in character. The power for the judicial authority to exclude the detainee and/or his or her representative is to ensure that proceedings can be properly managed. Exclusion is a matter for him alone and if he found it essential to exclude the detainee, he would not automatically need to exclude the representative.
Let us consider a case where the detainee was obstructing proceedings simply so that the judicial authority could not complete the proceedings. It would be wrong if the process could be frustrated in that way. The judicial authority must have the ability to run his proceedings in an orderly manner conducive to his important remit. However, I can confirm that
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the Government are absolutely committed to the principle that the detainee must have a right of appearance.
I have given a lengthy response but I hope that it satisfies noble Lords and that they will agree to withdraw their amendments.
Lord Goodhart: I have a slight problem as most of the debate has been directed not at our amendments but at the Conservative amendments which concern a matter which our amendments do not address; namely, whether the decision we are discussing should be taken by the Secretary of State or by a judicial authority. I have therefore not had an opportunity to speak on that issue. I hope that the Committee will forgive me if I speak briefly on that matter.
I am reluctant to differ from the opinion of the noble and learned Lord, Lord Mayhew, for whom I have the greatest respect both as a lawyer and as someone who played a most distinguished role in Northern Ireland and has enormous knowledge of what happens, and has happened over the years, in that Province. My reluctance to differ from him is, however, somewhat reduced by the fact that the noble Lord, Lord Dubs, has spoken in a contrary way. My views are very much the same as those of the noble Lord, Lord Dubs.
We have to start by lifting our eyes from Northern Ireland, or indeed from the United Kingdom as a whole, and thinking what we would say if we were considering this question in relation to another country, a civilised country with a proper legal system. We would surely say that decisions on detention of suspects, whether for terrorism or other offences, should be taken by the judiciary and not the executive. I think we would all be horrified at the idea that decisions on bail after charges, for example, ought to be taken, or even could be taken, by members of the executive. It seems to me that the principle can be no different with regard to the authority for detention for questioning.
It seems to me therefore that in principle it must be right that the decision on continued detention should be taken by a judicial authority. Indeed the fact that it had to be taken by the Secretary of State in Northern Ireland was not due to the fact that judicial authority was for some reason the wrong thing to apply there but because in that case it was impossible to find a judicial authority willing to act in the matter. That was an extremely unfortunate situation. The European Court of Human Rights recognised in the Brogan case that, in the special circumstances of Northern Ireland, a departure from the proper rule of judicial authority for detention could be justified.
But, when one is creating a permanent Bill which will apply not only in Northern Ireland but throughout the United Kingdom, and which will apply across a wide variety of circumstances and different cases, we must surely incorporate in that kind of legislation the proper rule that the decision on detention should be taken by a judicial authority and not by the executive. It is to be hoped that it will not be necessary to maintain the derogation for Northern Ireland for much longer.

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Turning to our amendments, I do not wish to press further the question of whether the appropriate initial period for police custody should be 36 or 48 hours. However, Amendment No. 95A needs serious attention and we may wish to come back on it. There are serious problems in the possibility of a judicial authority allowing continued detention for a period of five days without the suspect having the opportunity to come back to ask for release during that period. If the initial period is two days, it would be necessary for continued detention to be ordered for no more than two days at a time. If the Government do not accept that principle, they will face the possibility of a real challenge to that provision. We may well return to that issue. I suspect that we may not come back on the other issues, but certainly I do not give that commitment at this stage. We shall not take this point further today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 41 agreed to.
Schedule 8 [Detention]:
7 p.m.
Lord Bachmoved Amendment No. 69:
Page 110, line 38, leave out from ("State") to end of line 39 and insert ("shall designate places at which persons may be detained under Schedule 7 or section 41").
The noble Lord said: On behalf of my noble friend, in moving Amendment No. 69 I shall speak also to the other essentially technical amendments with which it is grouped—that is, Amendment Nos. 70, 72, 73 and 166.
In regard to Amendments Nos. 69 and 70, at Committee stage in the Commons we undertook to look again at the drafting of the beginning of Schedule 8 to ensure that it was clear that the Secretary of State's power to designate places at which detainees could be held under the Bill was a general power, not a power to direct that a particular detainee be held at a particular place. Amendment No. 69 is designed to make that intention clear. Amendment No. 70 provides that references to a police station in Schedule 8 include references to any other places the Secretary of State has designated under this power.
Amendment No. 72 provides that where a video recording with sound requirement is in force, the Secretary of State need not also require audio recording. This avoids unnecessary duplication. Amendments Nos. 73 and 166 make it clear that interviews need only be audio or video recorded if they take place at a police station. I beg to move.
On Question, amendment agreed to.
Lord Bachmoved Amendment No. 70:
Page 110, line 41, leave out from ("place") to ("be") in line 42 and insert ("which the Secretary of State has designated under sub-paragraph (1) as a place where a person may").
On Question, amendment agreed to.
Lord Bassam of Brightonmoved Amendment No. 71:
Page 111, line 25, at end inser—
("( ) This paragraph does not confer the power to take—

(a) fingerprints, non-intimate samples or intimate samples (within the meaning given by paragraph 9F below), or

(b) relevant physical data or samples as mentioned in section 18 of the Criminal Procedure (Scotland) Act 1995 as applied by paragraph 22 below.").

The noble Lord said: In moving Amendment No. 71 I shall speak also to the other amendments in the group.
On forfeiture, Amendments Nos. 84, 86, 91A and 92A make equivalent provisions for Scotland. Amendments Nos. 105, 107 and 108—no, this is wrong. I apologise to the Committee. My speaking note was out of order.
These amendments set out on the face of the Bill the regime for taking, retaining and using the fingerprints and samples of those detained under the terrorism provisions in England and Wales and Northern Ireland. This regime is modelled closely on that in the Police and Criminal Evidence Act 1984 and the PACE (Northern Ireland) Order 1989.
The Prevention of Terrorism Act 1989 provided for the PACE regime to be applied with certain necessary modifications in terrorism cases. We started by using that approach in the Bill, and this is reflected in the current wording of paragraphs 10 to 15 of Schedule 8. However, we have come to the view that it is more helpful to the reader to set out the regime as it applies in terrorism cases on the face of the Bill—not least because the PACE regime is itself extremely complicated.
The Scottish position is set out in paragraph 22 of Schedule 8. This provides that the relevant provisions of the Criminal Procedure (Scotland) Act 1995 are to be applied in terrorism cases, with certain necessary modifications. I beg to move.
Lord Glentoran: As a question of detail, Amendment No. 71 states,
"This paragraph does not confer the power to take … fingerprints, non-intimate samples or intimate samples within the meaning given by paragraph 9F below)".
Are we removing the power to take fingerprints?
Lord Bassam Brighton: I should make it clear that we are not removing that power.
On Question, amendment agreed to.
Lord Bachmoved Amendments Nos. 72 and 73:
Page 111, line 43, at end insert—
("( ) Where the Secretary of State has made an order under sub-paragraph (2) requiring certain interviews to be video recorded with sound—

(a) he need not make an order under sub-paragraph (1)(b) in relation to those interviews, but

(b) he may do so.").

Page 111, line 45, leave out from ("under") to ("if) in line 46 and insert ("Schedule 7 or section 41").
On Question, amendments agreed to.
Lord Bachmoved Amendment No. 74:
Page 113, line 5, at beginning insert ("Subject to sub-paragraph (4A),").
The noble Lord said: In moving Amendment No. 74 I shall speak also to Amendments Nos. 75, 76, 77, 84, 86, 91A, 92A, 105, 107 and 108—11 government amendments in all.
Paragraphs 6 to 9 of Schedule 8 make provision for the rights of detained persons to have someone informed and to consult a solicitor. These paragraphs are modelled on Sections 56 and 58 of the Police and Criminal Evidence Act 1984 and have effect in England and Wales and in Northern Ireland.
Amendments Nos. 74 to 77 complete the replication of Sections 56 and 58 by adding provisions corresponding to Sections 56(5A) and 58(8A). They allow the rights to be delayed if a superintendent believes it will hinder confiscation of criminal proceeds or forfeiture of terrorist property. The rights still cannot, of course, be delayed beyond the 48-hour point in any circumstances. Amendments Nos. 84, 86, 91A and 92A make equivalent provision for Scotland.
Paragraph 36 of Schedule 8 allows information in extension of detention hearings to be withheld from detained persons in certain circumstances. These circumstances are similar to those where rights can be delayed. Amendments Nos. 105, 107 and 108 therefore provide for information to be withheld where this might hinder confiscation or forfeiture. This is subject to the important safeguard that the judicial authority must be satisfied that the conditions apply. I beg to move.
On Question, amendment agreed to.
Lord Bachmoved Amendments Nos. 75 and 76.
Page 113, line 20, at end insert ("or in respect of which a forfeiture order could be made under section 23").
Page 113, line 27, at end insert—
("(4A An officer may also give an authorisation under sub-paragraph (1)) if he has reasonable grounds for believing that—

(a) the detained person has committed an offence to which Part VI of the Criminal Justice Act 1988, Part I of the Proceeds of Crime (Scotland) Act 1995, or the Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence) applies,

(b) the detained person has benefited from the offence within the meaning of that Part or Order, and

(c) by informing the named person of the detained person's detention (in the case of an authorisation under sub-paragraph (1)(a)), or by the exercise of the right under paragraph 7 (in the case of an authorisation under sub-paragraph (1)(b)), the recovery of the value of that benefit will he hindered.").

On Question, amendments agreed to.
The Deputy Chairman of Committees (Baroness Turner of Camden): In calling Amendment No. 76A, I should point that, if this amendment is agreed to, I cannot call Amendment No. 77.
Lord Goodhartmoved Amendment No. 76A:
Page 113, line 45, leave out paragraph 9.
The noble Lord said: This is another amendment which has come on the proposal of the Law Society. It removes the requirement that a detainee can consult with his solicitor only in the sight and earshot of a police officer.
Requiring a consultation to take place in the sight and hearing of a police officer breaches the principle that a consultation between a suspect and his solicitor is confidential and protected by legal professional privilege. A suspect has a right to establish what his position is in law and what his legal rights are. He will not be able to give a full account of his situation if his explanation could then be used as evidence against him on the grounds that it had been overheard by the police officer.
Communications made between a lawyer and his client for the purposes of seeking or giving legal advice are privileged and thereby protected from disclosure. The crucial importance of the rule was reinforced by the House of Lords in a decision reported in 1995. The House of Lords said:
"The principle which runs through all the cases … is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence can never be revealed without his consent. Legal professional privilege is thus ranch more than an ordinary rule of evidence limited in application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests".
I recognise that it is not a general rule under Schedule 8 that a detainee can consult with his solicitor only within sight and hearing of a police officer. Nevertheless, the fact that in any circumstances an order can be made to that effect is one which I believe is extremely difficult to justify. I look forward with interest to hearing how the Minister does in fact defend that proposition. I beg to move.
Lord Cope of Berkeley: I do not want to anticipate too much of what the Minister will say in responding to the amendment. I think that this provision has validity and, in some cases, will be important. It is not available very easily. It has to be authorised by an assistant chief constable or a commander and can take place only in the circumstances set out in paragraph 8(4) of Schedule 8, which are serious circumstances and will not normally apply. Therefore, I am not at the moment persuaded that it would be right to accept this amendment.
Lord Bassam of Brighton: I welcome the opportunity for a short debate on access to legal advisers. We believe that we have done a very significant amount to put the position on a much clearer and consistent footing through this piece of legislation and the codes which flow from it.
First, we have put it beyond doubt in respect of all three jurisdictions that access to a solicitor may be denied essentially only where it is believed that access might compromise the ongoing investigation, and then for a maximum 48 hours. That is consistent with a

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longer period of detention under the police authority that we have discussed already. We would not expect access to be denied very often; indeed, we have no records of access being denied in terrorist cases in England and Wales in recent years. But we believe it is right, as in ordinary criminal cases under PACE, to provide for that very, very occasional possibility.
Secondly, we propose to ensure that once a person has been granted access to a solicitor, that solicitor may, save in the most exceptional of circumstances, be able to be present at all interviews. That is already the position in England and Wales under paragraph 6.8 and following of PACE code C. It is our intention, also by code, to make that the position too in Northern Ireland. For Scotland, where no equivalent of the PACE code exists, that position is achieved already by paragraph 21 of Schedule 8. Currently, this provision is in force only in England and Wales, and again our records suggest that it has not been used in terrorist cases in recent times.
Thirdly, I turn to the focus of this debate: the provision that once access to a solicitor has been granted, a police officer of the rank of assistant chief constable may authorise that interviews between the detainee and his solicitor must be in the sight and hearing of a police officer unconnected with the case and of inspector or above rank. The authorisation may be given only if the assistant chief constable believes that not to do so would compromise the ongoing terrorist investigation in one of the ways set out in paragraph 8(4) of Schedule 8.
It must be stressed that we do not envisage that this power will be used other than in the most exceptional of circumstances. The fact that an authorisation has to be granted by an officer of ACC rank or above very neatly and clearly underlines this point. The Government are anxious to provide detainees under the terrorism powers with access to a solicitor. We accept that this is a very important and fundamental right.
Just as with other issues concerning access to solicitors, we do not accept that private access is an absolute right. We accept that it is acutely uncomfortable to envisage that circumstances may arise where it is believed a terrorist investigation might in some way be compromised if private access to a solicitor were permitted, but we do believe that provision should be made. An example might be where there was intelligence that a detainee might place a solicitor under extreme duress if a private interview were held.
Paragraph 9 of Schedule 8 provides for private access to be limited in such exceptional circumstances. The threshold is very high, with authorisation at ACC rank, and any decision could be tested by judicial review which, after 2nd October, could include consideration of whether convention rights had been observed. We believe we have to provide for the case, however rare, where there are reasonable grounds for suspecting and for believing that a private interview might compromise important terrorist investigations.
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In the light of those comments, I hope that the noble Lord will reflect further on our arguments and not press his amendment.
Lord Goodhart: I thank the Minister. I shall consider what he has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bachmoved Amendments Nos. 77 and 78.
Page 114, line 6, at end insert ("or the consequence specified in paragraph 8(4A)(c)").
Page 114, line 15, leave out paragraphs 10 to 15 and insert—
("9A.—(1) This paragraph applies where a person is detained in England, Wales or Northern Ireland under Schedule 7 or section 41.
(2) Fingerprints may be taken from the detained person only if they are taken by a constable—

(a) with the appropriate consent given in writing, or

(b) without that consent under sub-paragraph (4).

(3) A non-intimate sample may be taken from the detained person only if it is taken by a constable—

(a) with the appropriate consent given in writing, or

(b) without that consent under sub-paragraph (4).

(4) Fingerprints or a non-intimate sample may be taken from the detained person without the appropriate consent only if—

(a) he is detained at a police station and a police officer of at least the rank of superintendent authorises the fingerprints or sample to be taken, or

(b) he has been convicted of a recordable offence and, where a non-intimate sample is to be taken, he was convicted of the offence on or after 10th April 1995 (or 29th July 1996 where the non-intimate sample is to be taken in Northern Ireland).

(5) An intimate sample may be taken from the detained person only if—

(a) he is detained at a police station,

(b) the appropriate consent is given in writing,

(c) a police officer of at least the rank of superintendent authorises the sample to be taken, and

(d) subject to paragraph 9D(2) and (3), the sample is taken by a constable.

(6) An officer may give an authorisation under sub-paragraph (4)(a) or (5)(c) only if—

(a) in the case of a person detained under section 41, the officer reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a), and the officer reasonably believes that the fingerprints or sample will tend to confirm or disprove his involvement, or

(b) in any case, the officer is satisfied that the taking of the fingerprints or sample from the person is necessary in order to assist in determining whether he falls within section 40(1)(b).

(7) If an authorisation under sub-paragraph (4)(a) or (5)(c) is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.
9B.—(1) Before fingerprints or a sample are taken from a person under paragraph 9A, he shall be informed—

(a) that the fingerprints or sample may be used for the purposes of paragraph 9E(4), section 63A(1) of the Police and Criminal Evidence Act 1984 and Article 63A(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples), and

(b) where the fingerprints or sample are to be taken under paragraph 9A(2)(a), (3)(a) or (4)(b), of the reason for taking the fingerprints or sample.

(2) Before fingerprints or a sample are taken from a person upon an authorisation given under paragraph 9A(4)(a) or (5)(c), he shall be informed—

(a) that the authorisation has been given,

(b) of the grounds upon which it has been given, and

(c) where relevant, of the nature of the offence in which it is suspected that he has been involved.

(3) After fingerprints or a sample are taken under paragraph 9A, there shall be recorded as soon as is reasonably practicable any of the following which apply—

(a) the fact that the person has been informed in accordance with sub-paragraphs (1) and (2),

(b) the reason referred to in sub-paragraph (1)(b),

(c) the authorisation given under paragraph 9A(4)(a) or (5)(c),

(d) the grounds upon which that authorisation has been given, and

(e) the fact that the appropriate consent has been given.

9C.—(1) This paragraph applies where—

(a) two or more non-intimate samples suitable for the same means of analysis have been taken from a person under paragraph 9A,

(b) those samples have proved insufficient, and

(c) the person has been released from detention.

(2) An intimate sample may be taken from the person if—

(a) the appropriate consent is given in writing,

(b) a police officer of at least the rank of superintendent authorises the sample to be taken, and

(c) subject to paragraph 9D(2) and (3), the sample is taken by a constable.

(3) Paragraphs 9A(6) and (7) and 9B shall apply in relation to the taking of an intimate sample under this paragraph; and a reference to a person detained under section 41 shall be taken as a reference to a person who was detained under section 41 when the non-intimate samples mentioned in sub-paragraph (1)(a) were taken.
9D.—(1) Where appropriate written consent to the taking of an intimate sample from a person under paragraph 9A or 9C is refused without good cause, in any proceedings against that person for an offence—

(a) the court, in determining whether to commit him for trial or whether there is a case to answer, may draw such inferences from the refusal as appear proper, and

(b) the court or jury, in determining whether that person is guilty of the offence charged, may draw such inferences from the refusal as appear proper.

(2) An intimate sample other than a sample of urine or a dental impression may be taken under paragraph 9A or 9C only by a registered medical practitioner acting on the authority of a constable.
(3) An intimate sample which is a dental impression may be taken under paragraph 9A or 9C only by a registered dentist acting on the authority of a constable.
(4) Where a sample of hair other than pubic hair is to be taken under paragraph 9A the sample may be taken either by cutting hairs or by plucking hairs with their roots so long as no more are plucked than the person taking the sample reasonably considers to be necessary for a sufficient sample.
9E.—(1) This paragraph applies to—

(a) fingerprints or samples taken under paragraph 9A or 9C, and

(b) information derived from those samples.

(2) The fingerprints, samples or information may be used only for the purpose of a terrorist investigation.
(3) In particular, a check may not be made against them under—

(a) section 63A(1) of the Police and Criminal Evidence Act 1984 (checking of fingerprints and samples), or

(b) Article 63A(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples),

except for the purpose of a terrorist investigation.
(4) The fingerprints, samples or information may be checked, subject to sub-paragraph (2), against—

(a) other fingerprints or samples taken under paragraph 9A or 9C or information derived from those samples,

(b) relevant physical data or samples taken by virtue of paragraph 22,

(c) any of the fingerprints, samples and information mentioned in section 63A(1)(a) and (b) of the Police and Criminal Evidence Act 1984 (checking of fingerprints and samples),

(d) any of the fingerprints, samples and information mentioned in Article 63A(1)(a) and (b) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples), and

(e) fingerprints or samples taken under section 15(9) of, or paragraph 7(5) of Schedule 5 to, the Prevention of Terrorism (Temporary Provisions) Act 1989 or information derived from those samples.

(5) This paragraph (other than sub-paragraph (4)) shall apply to fingerprints or samples taken under section 15(9) of, or paragraph 7(5) of Schedule 5 to, the Prevention of Terrorism (Temporary Provisions) Act 1989 and information derived from those samples as it applies to fingerprints or samples taken under paragraph 9A or 9C and the information derived from those samples.
9F.—(1) In the application of paragraphs 9A to 9E in relation to a person detained in England or Wales the following expressions shall have the meaning given by section 65 of the Police and Criminal Evidence Act 1984 (Part V definitions)—

(a) "appropriate consent",

(b) "fingerprints",

(c) "insufficient",

(d) "intimate sample",

(e) "non-intimate sample",

(f) "registered dentist", and

(g) "sufficient".

(2) In the application of paragraphs 9A to 9E in relation to a person detained in Northern Ireland the expressions listed in sub-paragraph (1) shall have the meaning given by Article 53 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (definitions).
(3) In paragraph 9A "recordable offence" shall have—

(a) in relation to a person detained in England or Wales, the meaning given by section 118(1) of the Police and Criminal Evidence Act 1984 (general interpretation), and

705

(b) in relation to a person detained in Northern Ireland, the meaning given by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (definitions).").

The noble Lord said: These amendments were spoken to with earlier amendments. I beg to move.
On Question, amendments agreed to.
Lord Bachmoved Amendment No. 79:
Page 116, line 11, leave out paragraph 16.
The noble Lord said: In moving Amendment No. 79, I wish to speak to seven other government amendments, Amendments Nos. 80, 81, 82, 83, 85, 87 and 92D.
This group of drafting amendments ensures that Part I of Schedule 8 in its application to Scotland is consistent with and, where possible, similar to the drafting of Part I of Schedule 8 for England, Wales and Northern Ireland. Amendment No. 79 removes paragraph 16 which becomes unnecessary in view of the other changes being made to the Scottish section of Part I of the schedule. Amendments Nos. 80, 81, 82, 83, 85, 87 and 92D align the drafting of paragraph 17 for Scotland with the drafting of paragraphs 6 and 8(b) for England, Wales and Northern Ireland.
Unless your Lordships require me to do so, I shall not speak to each of these relatively minor drafting amendments individually. I beg to move.
Lord Cope of Berkeley: All of these drafting amendments—I accept that they are drafting amendments of some complexity—refer to Scotland. The fact of having to bring them forward, and for that matter other amendments in different parts of the Bill, implies to me that there was a lack of consultation between those who drafted the Bill and the Scottish authorities. We were told earlier that the Scottish Parliament had not been consulted on the Bill although the Scottish Executive had been. Whereas terrorism and the pursuit of terrorism are reserved matters properly dealt with by this Parliament, the law and the administration of the law in Scotland are devolved matters. The Bill affects devolved matters in that respect because it alters the way in which the law is managed in Scotland. Some of the amendments refer to points of that kind. Can the Minister tell us about the consultation that took place and why it was, judging by the amendments, ineffective?
Lord Bach: I cannot tell the Committee much more about the consultation than I did at the first sitting of the Committee last week. But I can explain why the provisions for Scotland were originally drafted differently.
These are not, for the most part, original provisions. They have appeared in earlier Acts about terrorism and those Acts have not always been concerned with terrorism. In drafting the current provisions for Scotland, account was taken of the earlier provisions. So far as is possible and consistent with the separate and different Scottish criminal system, the aim is to have consistency of approach between the provisions for Scotland on the one hand and for England, Wales
706
and Northern Ireland on the other. The amendments are part of the process of achieving that consistency. If the noble Lord is concerned that there has been some kind of difficulty in relation to consultation between Scotland and England on this matter, he can rest assured that that is not the case.
On Question, amendment agreed to.
Lord Bachmoved Amendments Nos. 80 to 83:
Page 116, line 12, after ("detained") insert ("under Schedule 7 or section 41 at a police station in Scotland").
Page 116, line 14, leave out ("reasonably").
Page 116, line 14, at end insert—
("( ) The person named must be—

(a) a friend of the detained person,

(b) a relative, or

(c) a person who is known to the detained person or who is likely to take an interest in his welfare.

( ) Where a detained person is transferred from one police station to another, he shall be entitled to exercise the right under sub-paragraph (1) in respect of the police station to which he is transferred.").
Page 116, line 16, leave out from beginning to ("in").
On Question, amendments agreed to.
Lord Bachmoved Amendment No. 84:
Page 116, line 18, at end insert ("or where paragraph 19(3A) applies").
On Question, amendment agreed to.
Lord Bachmoved Amendments Nos. 85 to 87:
Page 116, line 26, leave out from beginning to ("in").
Page 116, line 28, at end insert ("or where paragraph 19(3A) applies").
Page 116, line 29, at end insert—
("( ) Where a person is detained under section 41 he must be permitted to exercise his rights under this paragraph before the end of the period mentioned in subsection (3) of that section.").
The noble Lord said: These amendments have already been spoken to. I beg to move.
On Question, amendments agreed to.
The Deputy Chairman of Committees: In calling Amendment No. 87A, I have to say that if it is agreed to, I cannot call Amendments Nos. 87B to 88B inclusive.
Lord Bassam of Brightonmoved Amendment No. 87A:
Page 116, line 30, leave out paragraph 18.
The noble Lord said: This is a substantive group of amendments for Scotland. They pick up a point to which the Scottish Centre for Human Rights has drawn careful attention. I see that the noble Lord, Lord Dubs, in his amendments has sought also to address the problem. I am grateful to him for doing that. I am most grateful to the Scottish Centre for Human Rights for having drawn our attention to the problem.

707
The problem and the amendments are concerned with the position of a child who is detained in Scotland under Clause 41 of, or Schedule 7 to, the Bill. Paragraph 18 of Schedule 8 deals with the rights of a detained child by modifying paragraph 17 which deals with the rights of detained adults. The provisions of paragraphs 17 and 18 are not new. They repeat provisions which the government of the day introduced in 1984–85. Paragraph 18 requires that where a child has been detained, the police must inform his parent without delay of his detention and where he is being detained and must also allow the parent access to the child. However, the police may authorise a delay of up to 48 hours in telling the parent about the child's detention, where the police consider that to tell the parent earlier would prejudice the investigation of crime or the apprehension and prosecution of offenders. So, in an extreme, and I would hope unlikely, case a parent may not know for up to 48 hours where his or her child is and why.
Paragraph 20(2) of Schedule 8 at present states that the provisions about detention of an adult under paragraph 17 and, more particularly, of a child under paragraph 18 replace any other rule of law about rights on detention. In this context, the relevant provision which is replaced by virtue of paragraph 20(2) is Section 15 of the Criminal Procedure (Scotland) Act 1995, on which I shall say a little more shortly.
The Scottish Human Rights Centre quite correctly has pointed out that the effect of paragraph 20(2) is to put a child detained in Scotland under the Bill in a different position from a child detained in England, Wales or Northern Ireland under the Bill. The effect also of paragraph 20(2) is to put the child detained in Scotland under the Bill in a different position from a child detained in Scotland on any other ground. The position in England, Wales and Northern Ireland is that the PACE legislation in its various forms and codes issued under it will require that the child's parent or guardian must be told without delay that the child is being detained and where he is being detained. It is not the intention of this Government, in this Bill, to have such a prejudicial difference for the child in Scotland. I have therefore brought forward amendments to remedy the position.
The first main amendment is Amendment No. 87A. This removes paragraph 18 from Schedule 8 to the Bill. Amendments Nos. 90A, 90B, 92B and 92C and 93A and 93B are consequential on that removal. The second main amendment is Amendment No. 93C. This is concerned only with the child and it applies, in effect, the general criminal law in Section 15(4) of the Scottish 1995 Act.
The first effect of applying Section 15(4) of the 1995 Act is that in every case where a child is detained in Scotland under Clause 41 or Schedule 7 his parent, if known, must be informed without delay that he has been detained and where he is being detained. The second effect is that the child's parent must be allowed access to him unless the police have reasonable cause to suspect that the parent has himself or herself been involved in the offence for which the child is being
708
detained. In those cases, the police may nevertheless allow the parent access to the child but they are not necessarily required to do so.
In every case where a parent is to have access, the nature and extent of the access which is granted may be subject to any restriction which is essential for ensuring the wellbeing of the child or for the investigation of the alleged offence. That is the effect of the application of Section 15(4) of the Scottish 1995 Act. It puts the child detained in Scotland in a similar position to a child detained under the Bill in England, Wales and Northern Ireland.
As the Committee will note, Amendment No. 93C contains a definition of "child" and "parent" by reference to Section 15 of the Scottish 1995 Act. That is the same definition which is currently provided at paragraph 20(1) of Schedule 8 and which for drafting reasons Amendment No. 93C removes.
With that explanation, I beg to move the amendment. In doing so, I should repeat the Government's great appreciation of the vigilance of the Scottish Human Rights Centre in pointing out to us the need for this change to be made. I should also commend the good intentions of the noble Lord, Lord Dubs, in tabling his amendments which are undoubtedly designed to achieve a similar effect. I trust that, with that explanation, your Lordships will agree to these amendments and that the noble Lord, Lord Dubs, will be persuaded, if he needs persuading, that the government amendments cover the same territory, perhaps in a slightly superior way, as the ones which he tabled and that he will not therefore move his amendments.
7.30 p.m.
Lord Dubs: I am grateful to my noble friend. I think it has proved to be a tribute to the benefits of bicameralism that we have been able to achieve these amendments, which might not otherwise have appeared in the Bill. What my noble friend has said reflects entirely the aims of my own amendments. I presume that, technically, his approach is better than mine and therefore I shall not move my amendments. Once again, I am grateful to my noble friend for meeting the point at issue here.
Lord Cope of Berkeley: The Minister's explanation of these amendments has commended them very well. However, I hesitate to agree with the noble Lord, Lord Dubs, that his drafting would inevitably prove inferior to that of the Minister. Nevertheless, on this occasion I shall of course accept his judgment.
On Question, amendment agreed to.
[Amendment No. 87B not moved.]
[Amendment No. 88 had been withdrawn from the Marshalled List.]
[Amendments Nos. 88A and 88B not moved.]
[Amendments Nos. 89 and 90 had been withdrawn from the Marshalled List.]
Lord Bachmoved Amendments Nos. 90A and 90B:
Page 117, line 15, leave out from ("consultation") to ("be") and insert ("mentioned in paragraph 17(4) shall").
Page 117, line 19, leave out from ("consultation") to ("shall") in line 20.
On Question, amendments agreed to.
[Amendment No. 91 had been withdrawn from the Marshalled List.]
Lord Bachmoved Amendment No. 91A:
Page 117, leave out lines 22 to 24 and insert—
("(3) The grounds mentioned in paragraph 17(2) and (5) and in sub-paragraph (1) are—

(a) that it is in the interests of the investigation or prevention of crime;

(b) that it is in the interests of the apprehension, prosecution or conviction of offenders;

(c) that it will further the recovery of property obtained as a result of the commission of an offence or in respect of which a forfeiture order could be made under section 23;

(d) that it will further the operation of Part VI of the Criminal Justice Act 1988, Part I of the Proceeds of Crime (Scotland) Act 1995 or the Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence).").

On Question, amendment agreed to.
[Amendment No. 91B not moved.]
[Amendment No. 92 had been withdrawn from the Marshalled List.]
Lord Bassam of Brightonmoved Amendments Nos. 92A, 92B, 92C and 92D:
Page 117, line 24, at end insert—
("(3A) This sub-paragraph applies where an officer mentioned in paragraph 17(2) or (5) has reasonable grounds for believing that—

(a) the detained person has committed an offence to which Part VI of the Criminal Justice Act 1988, Part I of the Proceeds of Crime (Scotland) Act 1995 or the Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence) applies,

(b) the detained person has benefited from the offence within the meaning of that Part or Order, and

(c) by informing the named person of the detained person's detention (in the case of an authorisation under paragraph 17(2)) or by the exercise of the entitlement under paragraph 17(4) (in the case of an authorisation under paragraph 17(5) the recovery of the value of that benefit will be hindered.").

Page 117, line 25, leave out ("or non-compliance").
Page 117, line 26, leave out from ("rights") to ("mentioned").
Page 117, leave out lines 27 and 28 and insert ("paragraph 17(1) and (4) —

(a) if the authorisation is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable,

(b) the detained person shall be told the reason for the delay as soon as is reasonably practicable, and

(c) the reason shall be recorded as soon as is reasonably practicable.").

On Question, amendments agreed to.
[Amendment No. 93 had been withdrawn from the Marshalled List.]
Lord Bassam of Brightonmoved Amendments Nos. 93A, 93B, 93C and Amendment No. 94:
Page 117, leave out lines 29 to 31.
Page 117, line 32, leave out ("and this paragraph").
Page 117, line 35, at end insert—
("( ) But, where a person detained under Schedule 7 or section 41 at a police station in Scotland appears to a constable to be a child—

(a) the other person named by the person detained in pursuance of paragraph 17(1) shall be that person's parent, and

(b) section 15(4) of the Criminal Procedure (Scotland) Act 1995 shall apply to the person detained as it applies to a person who appears to a constable to be a child who is being detained as mentioned in paragraph (b) of section 15(1) of that Act,

and in this sub-paragraph "child" and "parent" have the same meaning as in section 15(4) of that Act.").
Page 117, line 45, leave out ("section 41 or Schedule 7") and insert ("Schedule 7 or section 41 at a police station in Scotland").
On Question, amendments agreed to.
[Amendments Nos. 95 to 104 not moved.]
Lord Bassam of Brightonmoved Amendment No. 105:
Page 122, line 13, at beginning insert ("Subject to sub-paragraph (2A),").
On Question, amendment agreed to.
[Amendment No. 106 not moved.]
Lord Bachmoved Amendments Nos. 107 and 108:
Page 122, line 19, at end insert—
("( ) the recovery of property in respect of which a forfeiture order could be made under section 23 would be hindered,").
Page 122, line 27, at end insert—
("(2A) A judicial authority may also make an order under sub-paragraph (1) in relation to specified information if satisfied that there are reasonable grounds for believing that—

(a) the detained person has committed an offence to which Part VI of the Criminal Justice Act 1988. Part I of the Proceeds of Crime (Scotland) Act 1995, or the Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence) applies,

(b) the detained person has benefited from the offence within the meaning of that Part or Order, and

(c) the recovery of the value of that benefit would be hindered, if the information were disclosed.").

On Question, amendments agreed to.
[Amendments Nos. 109 to 113 not moved.]
Schedule 8, as amended, agreed to.
Lord Bach: I think that this is an appropriate moment to break. I suggest that the Committee stage begin again not before twenty-six minutes to nine. I therefore beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Iraq
7.34 p.m.
Lord Islwynasked Her Majesty's Government:
Whether they will give further consideration to the removal of sanctions against Iraq.
The noble Lord said: My Lords, sanctions imposed on Iraq under UN Security Council Resolution 661 of 1990 constitute the most wide-ranging regime of economic sanctions ever adopted by the UN. The embargo affects the import and export of all commodities and products, including oil, weapons and other military equipment, but does not extend to supplies for medical purposes and, in humanitarian circumstances, foodstuffs. However, those are subject to scrutiny by the Security Council Resolution 661 Committee.
Draconian measures of this kind soon led to serious humanitarian problems. In 1996, the oil-for-food scheme was introduced. Later, in 1998, the amount of oil which Iraq could sell every six months was increased from 2 billion dollars' worth to 5.2 billion dollars' worth. This measure highlighted a further major difficulty. The oil industry of Iraq was in a very rundown condition and consequently the required oil capacity could not be realised. As a result, the Security Council authorised the import of oil industry spare parts. Nevertheless, there is now grave concern about the safety and working of Iraq's oil installations.
The principal concern I wish to raise is that of the humanitarian situation. Most neutral observers confirm that economic sanctions are undermining the whole fabric of Iraqi society. In October 1998, Mr Denis Halliday, the United Nations Assistant Secretary-General and Chief UN Relief Co-ordinator for Iraq, resigned. He stated:
"The sanctions were failing in the purposes they were set up for back in 1990–91. They weren't leading to disarmament and, second, the cost of sanctions was completely unacceptable—killing 6–7,000 children a month".
What an astonishing figure that is. For me, it brought back memories of the horror of Aberfan over 30 years ago. Mr Halliday went on to say that the policy was:
"Sustaining a level of malnutrition of about 30 per cent for children under five leads to physical and mental problems. It's incompatible with the UN Charter, with the Convention on Human Rights, with the Convention on the Rights of the Child and probably many other international agreements. I just found that impossible to accept as the head of the UN in Iraq".
There was more to come. In a speech at Harvard University on 5th November 1998, Mr Halliday said that,
"sanctions were causing significant disruption to Iraqi society and family life. The devaluation of the Iraqi dinar had wiped out savings and fuelled corruption and begging".
What is more, the sanctions regime is not affecting the Iraqi leadership, which remains isolated from the humanitarian plight of the general population. Sanctions have not brought about any positive change of a political nature in Iraq. However, they are isolating Iraq from the rest of the world, leading to political fanaticism and a deep-seated resentment of the west.
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Mr Halliday stated his belief that to continue economic sanctions would be to,
"disregard the … very moral leadership and the credibility of the UN itself".
That is pretty strong language to come from a senior and impartial international civil servant.
I turn now to Hans von Sponeck, who until recently was the UN's humanitarian co-ordinator in Baghdad when he, too, resigned. According to the BBC World News on 8th February, he called for an end to UN sanctions on Iraq, saying that they have created a "true human tragedy". He said that the United Nations oil-for-food programme was not meeting the minimum requirements of the Iraqi people.
"As a UN official",
he said,
"I should not be expected to be silent to that which I recognise as a true human tragedy that needs to be ended".
Sarah Graham-Brown has reviewed the situation for Christian Aid. In an address to British parliamentarians on 29th February, she said:
"A critical factor in the impact of sanctions has been the impoverishment of large sections of the population. This has been combined with the erosion, and in some cases virtual collapse, of services on which most people depend, including water and sanitation services, healthcare and education. The living standards of the middle class have been seriously undermined, while those who were already poor live on the edge of survival".
In January 1999, the Security Council's approved panel was asked to assess the current humanitarian situation in Iraq. The panel reported on 30th March in the same year. It concluded that,
"the gravity of the humanitarian situation of the Iraqi people is indisputable and cannot be overstated".
According to the report, infant mortality rates in Iraq are now among the highest in the world. Only 41 per cent of the population have regular access to clean water. Amnesty International, commenting on the report, said that,
"the Security Council must take appropriate action … with a view to ensuring that human rights considerations are fully taken into account".
The report also noted that the population's dependence on humanitarian supplies has,
"increased government control over individual lives".
Saddam Hussein and his regime remain firmly in power.
The anomaly of the situation is that conditions are slightly more favourable in the three northern governates which are under Turkish control. But it must be taken into account that the north receives more per capita—13 per cent of the population gets 19 per cent of the aid; that the programme started earlier there; that smuggling has benefited the economy in the north much more; that the programme in the north allows for a cash component and also for training; and that the agricultural economy there is much stronger.

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In conclusion, I have recently read the pamphlet by the writer and commentator, Geoff Simons, entitled The Scourging of Iraq, which states, at page 131:
"Women suffer, as do men, at the pain of their children. And women suffer also in unique ways. Only the desperately hungry pregnant woman can experience the anguish of knowing that her foetus is already malnourished, that her baby will stand a greater chance of being born disabled or dead, and that if it survives it is destined to suck in vain on shrivelled breasts".
That is the position of Iraqi women today. Surely it is time to end the sanctions. Then, in line with the UN's own reports, the international community should provide additional funding for humanitarian efforts in Iraq. The Government of Iraq should urgently expedite implementation of targeted nutritional programmes. All priority should be given to contracts for supplies that will have a direct impact on the wellbeing of children. This is not an issue about saving face; it is about saving lives.
7.44 p.m.
The Lord Bishop of Hereford: My Lords, I apologise to the House for not being in my place when the noble Lord, Lord Islwyn, began his speech. I want to express our thanks to him for introducing this timely debate.
The Iraqi regime is an evil one, guilty of the grossest violations of human rights, of international aggression and of the use of weapons of mass destruction which are internationally unacceptable in any circumstances. It is cynical and ruthless in using the suffering of its own people as a political bargaining counter—a despicable and utterly immoral tactic. Let us be clear about that.
However, there is widespread and deep concern about the sufferings of the Iraqi people, which have been presented to us graphically by the noble Lord, Lord Islwyn. The concerns have been reinforced by the visit to Iraq earlier this month of a group of Anglican bishops and others to assess the humanitarian needs and to make contact with Christians, who make up about 5 per cent of the population of Iraq and as many as 25 per cent of teachers and doctors. The Middle East Council of Churches has been active since 1991 in many kinds of relief work, so the Churches really do know what the needs are, even making every allowance for the fact that restrictions are placed on visitors.
There is real dilemma between the arguments in favour of maintaining sanctions against this odious regime and the strong conviction of many good people that, according to any doctrine of proportionality (which has undergirded the traditional concept of the just war and ought to continue to undergird any doctrine of a just sanctions regime) the sufferings of the civilian population are disproportionate to any good purpose that the sanctions have achieved or may achieve. There has been a systematic degradation of Iraq's infrastructure and the vast majority of the population have been reduced to poverty. Meanwhile, the regime is, if anything, more firmly entrenched than at the end of the Gulf War.
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There are those who argue for a complete separation of the sanctions policy, which has had such a devastating impact on health and welfare, from military and political considerations—in other words, the sanctions should be lifted because they have not worked and they have become ethically untenable. The overwhelming argument against such a policy is that it would in effect be saying: "If you persist in wickedness long enough, we shall give up and call it a day and let you get on with it".
I do not believe that this is an acceptable policy. I agree with the Government that the weapons inspection process under the newly constituted organisation UNMOVIC must be pursued as part of the process set in motion by UN Security Resolution 1284 of December last year. If the Iraqi Government were to comply with Resolution 1284, there could be a transition to the proper rehabilitation of the civilian infrastructure and the social and economic development of the country. The terms of the resolution are generous and reasonable and, set alongside the now unconditional oil-for-food programme under which Iraq can sell as much oil as it likes or can to meet humanitarian needs—potentially 12 billion dollars' worth this year—the way really is open for a solution to the suffering and distress among the Iraqi people, which every decent person must deplore. It is up to the Iraqi Government.
However, there are some serious questions about the way in which Resolution 1284 is working. The Church delegation was alarmed by the delays and the bureaucratic procedures that it discovered. Even allowing for the fact that it is the fault of the Iraqi Government that a quarter of the food and medical goods delivered since the start of the humanitarian programme have still not been distributed, and even allowing for the fact that there has been proper and rigorous scrutiny of dual-use goods such as chlorine, I wonder whether the figure of only 1 per cent of contracts put on hold quoted by the Minister in another place during a debate on 24th March, or 2 per cent quoted by the noble Baroness the Minister to me this afternoon in this House, is accurate.
The Board for Social Responsibility of the Church of England has information to the effect that on 14th April of this year there were 1,180 contracts on hold, together worth 1.7 billion dollars, covering such matters as water, sanitation, electricity, education and agriculture. If that is so it is a scandal. I hope that the Government will address the matter of bureaucratic delays with great urgency.
The question of proportionality, and the ethical and moral considerations which lie behind it, must be taken with the utmost seriousness. Humanitarian considerations must be central, not peripheral, to the workings of the sanctions regime. Possibilities exist to impose further financial sanctions against the Iraqi elite, who so far have escaped the effect of sanctions. Care needs to be taken to correct the imbalance between the impact of sanctions on the centre and south of Iraq compared with the north of the country. I hope that the Minister will be able to give assurances on these matters.
7.50 p.m.
Lord Rea: My Lords, I am grateful to my noble friend Lord Islwyn for tabling this Question. As noble Lords may be aware, I have asked similar Questions intermittently for the past six or seven years. My noble friend and the right reverend Prelate have spelt out the humanitarian situation. We can accept as a fact that the infant mortality rate in Iraq has greatly increased. A number of reputable international bodies, including UNICEF, confirm that the rate has approximately doubled since 1990. Malnutrition lies behind the high child death rate. Malnutrition makes them more susceptible to common illnesses, especially diarrhoea. That in turn is made worse because of damaged or obsolete sewage and water treatment plants and pumping stations, spare parts having been virtually unobtainable under the sanctions policy until very recently.
Although since last December there has been no real restriction on Iraqi oil exports, there is still a huge backlog of infrastructural repairs to be completed. There is no doubt that, if accepted, SCR 1284 will result in an improvement in the humanitarian situation, but there remain many items for civilian use which will have to be approved by the UN Sanctions Committee before they can be shipped. Many more have been put on hold than the figure of 1 or 2 per cent which has been attributed to my noble friend.
The position of the Government has always been that the humanitarian disaster in Iraq has been due more to Saddam than to sanctions. I agree that Saddam should certainly have used the oil-for-food programme earlier, but the main result of sanctions has been the undermining of the economy, with hyper-inflation, extreme poverty, high unemployment and the general collapse of civil society. As my noble friend pointed out, Saddam and his group have escaped all this. The question is whether the original aim of the sanctions has helped to eliminate Saddam's weapons of mass destruction. I suggest that whatever has been achieved has been due to the work of UNSCOM before it was forced out of Iraq rather than the sanctions themselves. Most of UNSCOM's work had been done by the time it left in December 1998.
The regular bombing of installations in the no-fly zones is the only control that we now have over Saddam's weapons. According to the RAF demonstration in Church House on 28th March, those operations are 70 per cent on target. However, Russia's Ambassador to the United States, Sergei Lavrov, claimed in a debate in the Security Council on 24th March that,
"the United States and Britain, since December 1998, had invaded Iraqi airspace nearly 20.000 times, hitting food warehouses, oil pipeline stations, and last year killing 144 people and wounding 466 others".
French correspondents have come up with similar figures.
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We need to watch and control Saddam's conventional military capacity, not only his weapons of mass destruction. I suggest that sporadic bombing from a great height is an ineffective and inhumane way to achieve that. Although SCR 1284 is likely to lead to some improvement in food and drug supplies, it is cumbersome to operate and does not allow the full funding necessary for the country's rehabilitation. There is a strong possibility that the lifting of sanctions, with the exception of military equipment, and the cessation of bombing may be matched by Saddam with the acceptance of the new UN inspection team UNMOVIC to replace UNSCOM. Perhaps my noble friend can tell us whether that commission will be able to operate in Iraq as matters stand.
With possible discussions between Iraq and Israel reported in this week's Observer, it may be that the time is ripe for further thoughts on the scrapping of the sanctions as they stand and their replacement with much more focused sanctions on arms, together with permission for UNMOVIC to operate inside Iraq. I suggest that that would result in better arms control as well as the recovery of Iraqi civil society.
7.55 p.m.
The Earl of Sandwich: My Lords, I too thank the noble Lord, Lord Islwyn, for this opportunity to revisit the subject. In our previous debate I outlined some of the problems that faced the Iraqis and the responsibilities of the NGOs involved. I shall not repeat the details. I simply remind the Government that they have a humanitarian commitment which in some cases overrides their other objectives. Since the previous debate we have the benefit of the report of the Select Committee on International Development and the Government's response two weeks ago. That committee reached one major conclusion:
"Sanctions have clearly failed to hurt those responsible for past violations of international law. The deterioration of infrastructure, the limited supply of food, the absence of drugs all affect the poor to a disproportionate degree".
The committee went on to say:
"The responsibility for the plight of the Iraqi people must ultimately lie with the Iraqi leadership. This does not, however, entirely excuse the international community from a part in the suffering".
During evidence given to the committee by Mr Peter Hain, the late Bernie Grant, MP, put the following question to the Minister:
"Do you not think that you have some responsibility in relation to the effect of these sanctions on the people? … By pressing these sanctions you are totally ignoring the fact that Saddam Hussein cannot change and at the same time you are not taking any action to get rid of Saddam Hussein. Therefore I would say that you arc not totally, but you are partly, culpable for the situation in Iraq".
The Government must face up to this question. The mantra of "Saddam Hussein is responsible" is really not good enough considering the evidence before us. I do not deny that sanctions can work in the broadest sense of international isolation, but surely it is now beyond doubt that they hit the people hardest and even give comfort to a regime which is well placed to turn them to its advantage.

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I have just visited the Channel Islands and been reminded of the wartime occupation and the fear and terror which tyranny inspires. We on this island have almost no experience to help us identify with the Iraqi people today. It is only through personal stories that we can appreciate the suffering. But we add to the injustice if we do not at least admit that in our efforts to contain the regime we also indirectly harm the ordinary population and fail to make every effort to reduce the suffering through carefully targeted sanctions aimed at the political élite. I believe that the Government have tacitly admitted this. There has been some improvement under the terms of the latest resolution, but I doubt that the Iraqi people would agree with that. There are acute shortages, delays in the delivery of essential supplies and inequalities in distribution. I have said before that almost always consignments arrive incomplete and equipment is without spares or ancillary parts.
The delay in applications may be part of the normal process of sanctions, but in the case of humanitarian aid it is intolerable. I know of one charity, Medical Aid for Iraqi Children, that has had to wait several months for essential medical equipment for paediatric hospitals. For example, heart-monitoring equipment for an intensive care unit ordered last June was approved only in February. That is quite unacceptable. The DTI still routinely takes three to four months to process these applications. If this Government genuinely distinguish between political and humanitarian objectives, then they must improve the flow of humanitarian aid. They must also speed up the reform of UN committees to enable exemptions to work and, where possible, put in place pre-exemptions of individual items and bona fide charities. There also needs to be some mechanism for monitoring and assessment.
I have studied the government response to the IDC under paragraphs 39 to 40 on exemptions which sounds reasonable as policy but lacks conviction and provides no timescale for improving exemptions. Under paragraph 16 on monitoring, all the Government can do is agree. One reason given in the case of the Iraqi children's charity was that, whereas equipment came from Siemens in Germany, the fact that some components derived from the US meant that approval had to be obtained not only from the UN but from three US government departments. When are we likely to see real progress in the implementation of SCR 1284? There are still acute shortages in Baghdad.
Finally, I have three questions which are of concern to the non-governmental agencies involved such as Save the Children and Care International. Will the Government press for a more transparent procedure in the administration of sanctions? Will the Government join the new UN working group and enable NGOs to make suggestions? What were the findings of the UK mission to New York in March 1999, expressly sent with the aim of strengthening the capacity of the UN sanctions committees?
8.1 p.m.
Lord Faulkner of Worcester: My Lords, I am sure that the House is grateful to my noble friend for initiating this debate. It is right that we should consider the humanitarian consequences of the present situation in Iraq as none of us can feel comfortable when confronted by evidence that children are suffering and dying in that country.
I listened carefully to what my noble friend Lord Islwyn said. I read the Hansard report of a debate in another place on 24th March, initiated by Tam Dalyell MP. I was recently in the Middle East, in Jordan, as one of the UK delegates at the Inter-Parliamentary Union conference where the subject of UN sanctions against Iraq was hotly debated in the conference chamber and at fringe meetings outside. We were left in no doubt about the strength of feeling in parts of the Middle East against the sanctions policy. But missing from each consideration of the issue has been the answer to one simple question: if not sanctions, what? What is the alternative, short of simply withdrawing sanctions and abandoning the proposed arms inspection arrangements and the military activity that backs them up when necessary?
Like the right reverend Prelate, I believe that Security Council Resolution 1284, which was a British initiative, offers the way forward. It offers Iraq suspension of sanctions provided it co-operates. It also allows Iraq to pump as much oil as it likes under the oil-for-food programme—up to 10 billion dollars should be available for the humanitarian programme this year to allow food and medical supplies to get through.
Noble Lords may have seen recent television documentaries made by John Pilger or have read articles by him. He seeks to show that sanctions are responsible for the suffering of the Iraqi people. Other noble Lords have made the same point in this debate. This is effective propaganda. It is hard to think of a more harrowing sight than that of children suffering in a hospital cancer ward because they are not receiving the necessary treatment. It is a scandal that doctors cannot get the drugs they need. But why is that? Earlier this year the UN Secretary-General reported that one quarter of all medical goods delivered to Iraq since the oil-for-food programme started have remained undelivered in government warehouses. Basic items such as antibiotics remain in short supply. Iraq claims that the problem is caused by lack of vehicles. But thousands of vehicles have been authorised by the Sanctions Committee since the start of oil for food. The real problem is the lack of commitment on the part of the Iraqi regime.
It is not only that. Iraq is exporting humanitarian goods. It has sold food to Syria and tried to sell food to Jordan; and several vessels exporting goods from Iraq have been intercepted in the Gulf. There is also evidence that Iraq is exporting oil outside the oil-for-food programme—oil which could and should have been exported under the oil-for-food rules. By exporting it illegally the regime is depriving the programme of revenue and thus the Iraqi people of

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humanitarian relief. The revenue from these illegal exports goes straight into the pockets of Saddam Hussein and his friends. The Iraqi people see none of it.
Is it any wonder that there are sick and malnourished children for Mr Pilger to film? Saddam Hussein, who understands about political propaganda, will make sure that they are there in their thousands, if necessary. To argue that sanctions are not working is to deny the evidence. They have successfully contained a brutal dictator for 10 years and have significantly reduced the threat from his weapons of mass destruction. If sanctions were not making any difference, why does Iraq and its friends put so much effort into trying to have them lifted?
Resolution 1284 shows that the Security Council is prepared to look creatively at the Iraq issue. It provides for suspension of sanctions in return for progress by Iraq short of full compliance. It represents an opportunity for Iraq to make quick progress on sanctions. If Iraq has nothing to hide, as it often claims, then it has everything to gain from cooperating. The resolution also calls on Iraq to prioritise its spending under the programme in line with the needs of the Iraqi people, in particular the most vulnerable.
It may not be very palatable, but we have no choice but to stick with the United Nations policy. The alternative—to lift sanctions—would reinforce Saddam Hussein's regime and allow him again to build up a military threat against other states in the region. I do not believe that the international community could contemplate such a course of action.
8.6 p.m.
Viscount Waverley: My Lords, I have just returned from Baghdad after an independent assessment. Time-constrained remarks reflect my evaluation beyond distressing humanitarian issues and sensitivity to the deep concerns about the Iraqi leadership.
There will not be a comprehensive peace or stability in the Middle East without an Iraqi solution. Differing ends of the spectrum include those with a conciliatory pragmatic approach and some in Washington extolling an open-ended massive operation tied to Iraq's acceptance of unconditional international inspections. I believe that anything would be preferable to the continuing creeping strangulation of Iraq.
We are on a treadmill to nowhere and the inability to achieve policy objectives or continuing containment after 10 long years is not sustainable. Iraqi containment and the provision of humanitarian aid to the Kurds have cost the United States Defense Department about 8 billion US dollars since the war. What are the estimates of UK expenditure?
While wishing to emphasise that Kuwait's concern remains one of deep scepticism, I left Baghdad with the firm perception that we are no more likely now to achieve policy objectives than we ever were; that Saddam will not be pressurised into compliance by dangling the suspension of the sanctions carrot; but,
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most worryingly, that the Western quandary of failure to sustain the moral high ground of ceasefire terms and Security Council resolutions will continue as a result of Iraq's continued exclusion, imposed peace and lack of sensitivity to the Arab mind-set.
The participants must urgently devise a pragmatic exit strategy to unlock the impasse beyond Resolution 1284 which, while addressing outstanding legitimate concerns and creating incentives beyond the perceived American containment-plus agenda, also offers—and here is the key—direct third-location dialogue, a device hitherto not used. A good starting point would be a discussion on the "major concerns" referred to in Resolution 1284. Discussions should extend to de-linking military embargo from economic sanctions, with Iraq reverting to a spirit of "immediate, unconditional and restricted" monitoring.
A range of confidence-building measures should also be put in place. First, there should be the removal of civilian travel restrictions, allowing medical and academic exchange. Secondly, management of and responsibility for financial resources should be returned to the Government of Iraq, a point to which I shall return. Thirdly, we should allow unfettered access to the UN and OPEC arenas. Fourthly, we should encourage the private sector to re-engage. Fifthly, we should permit an early overhaul of the oil industry. A quid pro quo should include the re-establishment of inspectors at the borders and within Iraq, implementation of a smart monitoring sanction of post-sanction racketeering and urgent rebuilding of the education system.
One essential inclusion in a compromise has to be to devise a formula to ensure that future Kurdish autonomy is not jeopardised. Iraq need not shy away from that. During discussions, however, with Tariq Aziz, he emphasised that anything short of direct financial management was an invasion of sovereignty.
I would suggest to him that an acceptable formula could be found, however, to allow Iraqis to manage their own money, ensuring responsibility yet being accountable, with control mechanisms in place not far removed from the accountable methods of the World Bank and the IMF.
Then and only then, all else failing, should default and hidden agendas result in punitive actions., but it should be remembered that the erosion of the former allied coalition constrains many further military options. I remain uncertain that the political will exists for the United States and its allies to allocate more assets, incur greater risks and so deal with further challenges by Iraq.
Opposition is too fragmented and lacking in support within the Iraqi heartland to be effective. The United States Iraqi Liberation Act has failed and generally provided insufficient support and missed key opportunities.
Arab initiatives, which are to be encouraged, include the Egyptians' call for an Arab League summit at year's end and Kuwait, Saudi and Iraq should attempt to stay the course. It also should be noted that

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a Qatari Foreign Minister called for reconciliation in Kuwait last week, supported last Friday in Paris by the French Foreign Minister.
But what about the Iraqi leadership and its intentions? With or without Saddam—and in reality it is more likely to be with—globalisation, and with it the empowerment of the individual, would prevail. So in conclusion, while not calling for an unconditional lifting of sanctions, rather devise urgently a pragmatic package beyond Resolution 1284 whereby sanctions can indeed be dealt with, I believe a policy review could present an achievable road map. And should participants have the will, I believe that we could be out of this mess in 12 months.
8.11 p.m.
Baroness Williams of Crosby: My Lords, I, too, thank the noble Lord, Lord Islwyn, for bring forward this serious matter and for the way in which he did so. All of us are conscious of the great strains on the policy that has been pursued. Not only has it continued for 10 years, but it is clear that there is less solid support for it among those who were involved in the Gulf War than was the case a few years ago. The United States—and increasingly Russia, France and other countries—are beginning to pull away from that policy. Another reason that I believe that the policy cannot last forever is the level of smuggling, in particular over the Russian, Turkish and Jordanian borders. That goes a long way to undermine the effect of sanctions.
I share some of the points raised about the humanitarian agony that is being suffered by the ordinary people of Iraq. It is difficult even to read the accounts of some of the dreadful things that are happening to children in hospitals and in homes. I want to associate myself with what was said by the noble Earl, Lord Sandwich, about some of the unacceptable delays in making available supplies of humanitarian goods.
However, I most closely identify with the speech of the right reverend Prelate the Bishop of Hereford. He put his finger on an acutely difficult moral dilemma. He pointed out that simply to walk away from the sanctions and effectively to hand a victory to Saddam Hussein would do nothing to strengthen the rule of law and the rule of morality in the world. Those who advocate, as did the noble Viscount, Lord Waverley, in a powerful speech to which I shall return, the complete abandonment of sanctions must seriously consider what that could mean for the standing of the United Nations and, more broadly, for the standing of any attempt to establish a moral rule in the world.
Even while we observe that sanctions have become, to a great extent, blunted, it is also the case that without hindrance and according to the evidence of Max Van Der Stoel, the UN representative on human rights in Iraq, Saddam Hussein has continued with capricious executions, the killing of political opponents and the arbitrary imprisonment of large numbers of people. That is why the noble Viscount, Lord Waverley, correctly says that one can have little
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hope of an opposition arising in Iraq. We must be clear why. It is not because there are no opponents of Saddam Hussein in Iraq, but because the terrible things that have happened to them and their families have undermined whatever moral courage those brave people have shown.
Resolution 1284 was a step forward. It would be reasonable to say to the noble Viscount, Lord Waverley, that if the 120 days condition of that resolution were to be taken up—and it is open to Iraq to proceed along those lines—the lifting of sanctions that we are seeking would occur. However, the condition is the difficult issue. It is the condition of accepting that UNMOVIC can move into installations which it wants to inspect without let or hindrance from the government.
I want to ask the Minister a few questions about what might be done in this desperately stalemated position. First, can the Government consider including representatives of at least some Arab states in the inspection teams? Countries such as Jordan and Tunisia leap to mind. It is unfortunate that there is not a single Arab state among the list of representatives on the UNMOVIC group. It is vital to keep the Arabs on board.
Secondly, can the Minister tell us how far we have tried to involve Russia in making representations to the government of Iraq with regard to the possibility of being willing to accept UNMOVIC's surveillance? Russia has an important role to play.
Thirdly, it would be worth considering the postponement of reparations to Kuwait until such time as the most desperate humanitarian needs can be met. I refer not to the waiving of reparations but to a postponement of their payment.
Finally, the noble Earl, Lord Sandwich, referred to the long delays experienced by the sanctions committee in so far as it is consulted. It may be that only 1 or 2 per cent of the delays are caused by us. However, with respect to the Government's loyalty to the United States, is it not the case that the United States has delayed a number of the provisions which should be going to Iraq under humanitarian aid? Can the Government tell us whether the United States would be prepared to consider a more generous approach to the issue?
8.18 p.m.
Lord Howell of Guildford: My Lords, the noble Lord, Lord Islwyn, has done us all a service by raising the issue as we approach the 10th anniversary of the sanctions and embargo. The issue must be revisited again and again and it has prompted a balanced short debate. The questions are simple, but, unfortunately, the answers are complex, deep and difficult. The noble Lord, Lord Faulkner, put his finger on many of them. Are the sanctions working? It depends on what one means by "working". Could they be further modified beyond the expanded oil-for-food programme and Resolution 1284, which is a generous resolution? Should they be suspended or scrapped altogether without launching Saddam on new powers of evil in

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the region? Above all, and it is the central dilemma, how do we go about rebuilding the democratic and prosperous Iraq that could exist one day without helping this evil man, this tyrant, and his hideous little clique back to their bad ways.
What does "working" mean? I must agree that the sanctions are leaking in every direction. They are being bypassed. They have not brought Saddam down; he has stood entrenched. If the aim was to bring Saddam off his perch, the sanctions have not worked. However, I do not believe that that was the aim. Surely, the aim was always containment and the prevention of further evil. That is what we are talking about. In that sense, there is no doubt that, painful and tragic though the consequences of the sanctions regime are, it has prevented a repeat of even greater tragedies. There has been containment, or containment-plus, as the Americans say, and that has had some effect.
Therefore, could the sanctions be modified further? Tam Dalyell, the Member for Linlithgow, for whom I have enormous respect, has urged again and again that there are ways through. The matter has been raised again tonight by noble Lords of great experience. Could we do more on the health and immunisation side? Could some of the contract screening be speeded up? Could there be more intellectual and public contact with Iraqis who want to contact the outside world? And could more be done to repair the oil fields? To those who talk that language I have to say that if they had seen, with me, the Burgam oil fields in 1990 as they flamed skywards, covering the entire area with black dust, which made them look like Dante's Hell, and knowing that that was done malignly and deliberately by Iraqi troops at the orders of their masters, possibly they would believe that there is some hideous justice in the fact that Iraq's own oil fields are not in ideal shape.
The truth is that behind all the attempts to get through the problem and alleviate the suffering of the Iraqis stands Saddam Hussein. As we heard from the noble Lord, Lord Faulkner, Saddam has the resources. The UN tells us that a quarter of all medical goods delivered are sitting in warehouses and not being distributed. The élite are obtaining vast resources from their illegal oil exports. I have seen them myself, as I have their food exports rumbling into Syria off the Euphrates road at night.
Therefore, enormous sums of money are available in Iraq and in the hands of the elite. How does one get round the fact that, so long as Saddam plays this game and pursues his evil policies, it is almost impossible to bypass him and bring alleviation to the tragic and impoverished Iraqi people? If he alone is selling outside the oil-for-food programme—approximately 60,000 barrels of oil a day—and the money goes straight into his palaces, his new cars, his armaments and his equipment, it cannot be right to say that we should do more of that in the hope that somehow he will come good and abandon his ways.
The reality is that it is probably too ambitious to talk in terms of getting rid of Saddam. What does it mean if we talk in terms of containing him? Is more evil
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and cruelty to more children and people in Iraq being carried out by the present policy of sanctions, as the right reverend Prelate rightly mentioned? Or will more evil be unleashed if we take the containment harness away from him? What happens if he goes back to his old ways, as he has said that he will? What happens to the Kurds? What happens to the Kuwaitis, who have been so gallant? What happens to the Marsh Arabs and to the whole of the Middle East peace process if Iraq emerges, not benign and democratic, but malign and evil and, once again, led by this hideous tyrant?
That is the agonising dilemma. No doubt the noble Baroness will explain how this Government are facing it. I have no doubt myself that if there was a benign, democratic, rich Iraq, it would be of huge benefit to the entire Middle East peace process and the peace of the world. However, we have not reached that stage yet and I am not sure that removing sanctions would bring us to that point.
8.23 p.m.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, I, too, thank my noble friend Lord Islwyn for allowing me this opportunity to debate the important subject of Iraq. I say straight away that I agree wholeheartedly with the sentiments expressed by the noble Lord, Lord Howell.
I fully share the concern that my noble friend Lord Islwyn set out in relation to the people of Iraq. The tenderness of that expression does him honour, as, indeed, do the sentiments expressed by all noble Lords who have participated in the debate. Would that the tenderness of those sentiments were shared by the Government of Iraq. I agree with my noble friend Lord Islwyn that it is not an issue of saving face but of saving lives. However, the noble Lord, Lord Howell, put his finger on it when he reminded us that we are talking about containment and considering which is the greater evil.
The Government of Iraq prefer—that is what we must face—to use their people's suffering for propaganda purposes. I also agree with the sentiments expressed by the right reverend Prelate the Bishop of Hereford and his description of the regime. The regime knows that the pictures of malnourished children provoke our sympathy, even our outrage, as many noble Lords have already said. And rightly so.
However, it is surely an even greater outrage that the Iraqi Government wilfully deny food and medicine to those children and play politics with their suffering. They hope that by doing so they can play on our emotions and persuade us to abandon the Security Council's resolutions and lift sanctions. That would leave Saddam Hussein free to redevelop his weapons of mass destruction and, once again, threaten the region, as I believe the noble Lord, Lord Howell, outlined.
It is important for us to recall why sanctions were first imposed, following Iraq's unprovoked invasion of Kuwait in 1990. Under Security Council Resolution 687, which Iraq accepted at the end of the Gulf War,

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sanctions can be lifted only when Iraq complies with its obligations, including on disarmament. Iraq could have done that at once if it had chosen to do so. Instead, it chose deliberately to obstruct the efforts of UNSCOM weapons inspectors to uncover the extent of Iraq's weapons of mass destruction programme. It chose to hinder efforts to account for the whereabouts of the 605 Kuwaitis and others who have been missing since the Gulf War. To date, Iraq has produced sufficient information to close only three files. In doing so, it has prolonged the sanctions regime for 10 years.
It would be nice to believe that Saddam Hussein wants to put the needs of his people first. However, he has never done so. In the 1980s he launched chemical attacks on his own civilians, whose only supposed crime was to be Kurdish. Thousands of civilians died in those attacks and many more still suffer from the after-effects of exposure to such weapons. He attacked his neighbours again with chemical weapons in the Iran-Iraq war. As the noble Lord, Lord Howell, pointed out, while his people were starving, he sold food to other countries. Surely there can be few who are now justified in believing that if sanctions were lifted Saddam Hussein would suddenly change the habit of a lifetime and start to put his people's needs first. I for one have no reason to believe that he would do so. I can only agree with the analysis set out so cogently by my noble friend Lord Faulkner of Worcester as to what the likely outcome would be.
I agree with all noble Lords who say that there is absolutely no need for the Iraqi people to suffer or starve. The importation of food and medicine into Iraq has never been prohibited under sanctions. Under the oil-for-food programme, billions of dollars have been spent on food, medicine and repairs to Iraq's infrastructure, including that of its oil industry. The UK has been at the forefront of efforts to alleviate the humanitarian situation. Since 1991 we have donated approximately £100 million in aid to Iraq. Of course, in this respect we are also grateful for the contributions made by British NGOs and religious bodies. I should tell the House that my right honourable friend Mr Hain is due to meet Churches Together in Britain and Ireland next month to discuss the whole situation in Iraq.
As many noble Lords have mentioned, our most recent initiative—SCR 1284—which was adopted in December 1999, is a very important step forward. Throughout the past year we invested huge amounts of time and energy in securing adoption of that resolution. I can assure the noble Baroness, Lady Williams, that the resolution provides a new platform for the UN's dealings with Iraq. All Security Council members are now working hard on its implementation.
On the humanitarian side, it provides for significant improvements to the effectiveness of the "oil for food" programme. It lifted the ceiling on the amount of oil Iraq can export to fund the purchase of humanitarian aid, and this, together with the recent recovery in
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world oil prices, has boosted Iraq's oil revenues back to—if not above—their peak historical level of around 15 billion dollars a year.
Iraq's oil Minister has recently announced that Iraq is planning to increase its exports further by about 700,000 barrels per day, which would put Iraq among the world's top five oil exporters.
All of this means that an estimated 10 billion dollars will be available for the humanitarian programme in Iraq this year. Despite all this, the Iraqi people still do not see the full benefits.
The UN recently recommended that Iraq set aside 91 million dollars for targeted nutrition for groups such as infants and new mothers. Iraq allocated only 24 million dollars.
In 1998 the UN Secretary-General recommended a daily food ratio of 2,463 kilocalories. The Iraqi Government, however, sets the current average ration at just 1,993 kilocalories.
Kofi Annan's latest report notes that Iraq is ordering insufficient quantities of pulses and dairy products to make up the food ration and not including sufficient protein. The Iraqi Government also fail to order enough medicines and then fail to distribute them properly, as a number of noble Lords have already said. The latest UN report notes that one quarter of all medical goods delivered to Iraq since oil-for-food began have not been distributed.
Meanwhile, in the northern governorates the people are not starving. In the north, child mortality rates are actually lower than they were in 1990. Why is there such a difference? It is because in the north the United Nations implements the oil-for-food programme, and does so in a manner designed to bring maximum benefit to the people.
My noble friend Lord Islwyn was not quite right in saying the northern governorates are under Turkish control. They are not.
The government in Baghdad could do the same, if they wanted to. Some have urged here today that we lift sanctions immediately and unconditionally. I am sure my noble friends would not expect the United Kingdom, a Permanent Member of the Security Council, to decide to abandon the council's resolutions, which have the force of international law.
As I said before, there is no reason to suppose that Saddam Hussein would give any higher priority to the needs of his people than he does now.
I can assure the right reverend Prelate the Bishop of Hereford and the noble Earl, Lord Sandwich, that our policy is to expedite the supply of humanitarian goods to Iraq. Under Resolution 1284 the Sanctions Committee procedures for approving humanitarian contracts have been streamlined to ensure the contracts are processed more quickly than before. We will not overlook our responsibility, however, to ensure that Iraq does not acquire prohibited goods.
In total the United Kingdom only puts a tiny percentage of the oil-for-food contracts on hold and it is about 1 per cent overall, and I can assure the noble Earl, Lord Sandwich, that we will continue in our

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efforts to improve efficiency and transparency. I shall write to the noble Earl, Lord Sandwich, in relation to the two other questions.
I will address some of the matters raised by the noble Baroness, Lady Williams, about the question of UNMOVIC and its staff. Hans Blix, the Executive Chairman of UNMOVIC, is currently in the process of recruiting and training his staff in this region, and we do look to Russia, as the noble Baroness suggests, to urge Iraq to co-operate with the resolution. It is only fair to add that, during the negotiations for the resolution last year, the UK made the very proposal to postpone payments for oil-for-food to the compensation fund so that money could be used for food and medicine and unfortunately other council members rejected this proposal. We have tried very hard indeed, and we must not underestimate the success that we have had in getting this new resolution. We are trying to work with it as effectively and efficiently as we can, but we accept there is much to do and we shall continue to do all that we can in that area.
I can also assure my noble friend Lord Rea that we are not conducting a bombing campaign in Iraq. The UK and US pilots are patrolling the "no fly" zones, which were established in 1991 and 1992, in response to Iraqi oppression of the civilian population. They stop Saddam Hussein using his aircraft to attack his own people. Since late 1998 Iraq has waged a systematic campaign to shoot down our aircraft. There have been over 650 direct threats against our aircrew, including missile attacks and heavy anti-aircraft fire, and our aircraft take action only when they are forced to do so to defend themselves.
As regards the package that the noble Viscount, Lord Waverley, for which argued in terms of confidence-building measures to persuade Iraq to resume co-operation, many of those proposals already exist the form of SCR 1284, and they offer Saddam Hussein every incentive to co-operate.
All the comments made by the noble Baroness, Lady Williams, were very much to the point, and I think she was right to highlight that Saddam Hussein has continued to disregard human rights and that Resolution 1284 is a step forward.
The way ahead lies with SCR 1284. This is a real opportunity for Saddam Hussein, if he wishes to take it, but most crucially SCR 1284 marks out a clear route out of sanctions by allowing for their suspension. Under the resolution, if Iraq co-operates with the new disarmament body to a standard well short of that required for a sanctions lift then sanctions can be suspended, possibly within months.
The Iraqi Government are fond of claiming that they have given up their weapons of mass-destruction and have nothing to hide. If that is so then they have everything to gain by resuming full co-operation with the UN. Her Majesty's Government call on Iraq to do so.

Terrorism Bill
8.38 p.m.
House again in Committee.
Clauses 42 and 43 agreed to.
Clause 44 [Authorisations]:
Lord Bachmoved Amendment No. 114:
Page 20, line 24, after ("in") insert ("or on").
The noble Lord said: I beg to move Amendment No. 114, which is a minor amendment to Clause 44. Its purpose is to ensure that the stop and search powers are exercisable in relation to an item carried on a vehicle.
Clause 44(1)(d) already allows the police to search an item in a vehicle, and I am sure noble Lords would not want the police to be barred from searching for items carried, for example, on a car roof-rack. I hope that this amendment is uncontroversial, even if amusing to some noble Lords. I beg to move.
On Question, amendment agreed to.
Lord Marlesfordmoved Amendment No. 115:
Page 20, line 29, at end insert—
("(2A) An authorisation under this subsection authorises any constable in uniform to stop a person for so long as is necessary to question him to ascertain his identity and movements.
(2B) For the purposes of subsection (2A), a person required to give details of his identity to a constable in uniform must—

(a) if he is a United Kingdom citizen, provide the constable in uniform with his National Health Service number; or

(b) if he is not a United Kingdom citizen, provide the constable in uniform with—

(i) his passport details, or

(ii) details of other documentation used to gain entry to the United Kingdom,

and must also provide such other particulars as the constable may reasonably require.").
The noble Lord said: I move this amendment and speak to Amendments Nos. 118, 120, 121, 122 and 161, which follow on quite neatly but rather more substantially from the amendment which the Minister has just moved. The substantial amendments are Amendments Nos. 115 and 161, the latter reproducing for England what Amendment No. 15 does for Northern Ireland. I seek to help the Government by making the provisions of the Bill more effective. However, I hope that I shall have the support of those who perhaps feel that the Bill is already too effective by assuring them that nothing that I propose in these amendments in any way infringes on civil liberties or human rights.
I start with what I hope is a common position for all of us: that if terrorism is to be combatted, the identification of those who might be terrorists should be achieved as simply, effectively and certainly as possible. It is only by doing so that the risks of inconvenience or worse to the innocent can be minimised.
At present, the only preliminary general identification available to the police who wish to question someone is the name and address. Both of

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those are always difficult to verify rapidly and some prove impossible. Indeed, the use of false names and addresses is often the tactic of first resort for wrongdoers. Names are not enough in fighting serious crime, of which, of course, terrorism is a great example.
And yet in its dealings with citizens, every state has long used a multitude of numbering systems as a supplement and, indeed, often an alternative to names and addresses. In this country, every citizen receives a national health number at birth. Birth certificates have long been used and, indeed, required as evidence of identity for a number of purposes, both official and private. Later, everyone has a national insurance number. However, some people have numerous national insurance numbers. It has long been widely known and admitted by successive governments that there are far more current national insurance numbers than there are people entitled to them.
All taxpayers have a tax number and I believe that multiple tax numbers are rather less popular than multiple national insurance numbers.
All those who travel abroad will have passports which have a number which changes every time a new passport is issued to the same person, which is a strange system. All those authorised to drive road vehicles have a driving licence number which, itself, is a crude cryptogram of name and age. Members of Her Majesty's forces have military numbers. Civil servants will usually have passes with numbers. Members of Parliament and those who work in the Palace of Westminster will have passes of varying colour and design, each with a unique reference number. Those who go to prison have a prison number which, incidentally, varies with every prison to which a person is admitted. Those convicted of serious crimes receive a criminal record number, and so it goes on.
Ten members of the European Union—Austria, Belgium, Finland, France, Germany, Greece, Luxemburg, the Netherlands, Spain and Portugal—have national identity cards. A valid identity card of any EU or economic area country may be accepted as a travel document for entry into the United Kingdom. In the United Kingdom, a system of identity cards was introduced during the war and was scrapped in 1952.
Following the government's 1995 Green Paper, the House of Commons Home Affairs Committee made an extensive study of identity cards in 1996. It concluded that a case for introducing a voluntary identity card had been made but it was opposed to the use of a unique identity number for each cardholder.
The then government, in their August 1996 reply, accepted the committee's proposal that there should be a voluntary identity card based on the new photo driving licence. They envisaged that a single national identity number might be required in the future.
I do not propose that there should be identity cards. I do not even propose that there should be any fresh, new national identity number. However, in order to make this important legislation effective, I believe that the existing National Health Service number should be
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used as an identity reference for British citizens and, for non-British citizens, passports or other entry documents would enable the police to exercise their powers under the Bill.
Of course, that would mean that National Health Service numbers would gradually have to be made available for use by the police national computer, as driving licences already are. But I hope that I do not need to reassure the Committee that to use the same number for different purposes no more means unauthorised persons having access to information held for those different purposes than if the same information is held under different numbers.
Therefore, my amendments spell out, under the power of the stop and search provisions in Clause 44 and Clause 89 for Ireland, the power of the police to ask for National Health Service numbers which would have to be developed in the way I have described for British citizens. For others, the police would require the production of identity material which has been used for entry into the United Kingdom.
With the serious threat of the development of terrorism and the need to introduce this Bill, I believe that that will become an essential weapon to make it more effective. I beg to move.
8.45 p.m.
Lord Dubs: I am not very happy about the arguments being put. It seems to me that this is a way of establishing an identity card system without overtly doing so. It is better to have a proper debate about the merits or demerits of ID cards rather than dealing with that issue in this particular round-about way.
Not everybody from abroad necessarily has a passport. People may come from a repressive regime which does not permit them to have passports. So it does not follow that that particular form of documentation would be available.
I am not wholly clear about how one would demonstrate that one's National Health Service number was accurate. No doubt the noble Lord knows what his number is. I know what mine is but I have no piece of paper to prove that. So it is a complicated approach. I believe that the noble Lord would do better to argue the case for ID cards, if that is what he believes.
Baroness Park of Monmouth: I find myself in agreement with both noble Lords in that I agree that a national identity card would probably be the most sensible system. But I wonder whether there is not quite a lot to be said for the national insurance number. It seems to me that that is one thing which everybody in Northern Ireland—and it is Northern Ireland that I am thinking about—undoubtedly has which is probably not regarded, even by the most virulent Republican, as an admission of British citizenship or anything else. It is simply that you are part of the national health system in Northern Ireland. Therefore, it would be extraordinarily difficult not to have such a number and not to be prepared to give it. On those grounds, I suggest that there is merit in the proposal.

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I quite see the difficulty in relation to the non-British citizen. For that reason, I agree that the best answer would be a national identity card. But that is for another debate, and quite a long one. I hope that we might consider this as a half-way house.
Lord Dubs: I should make it clear that I am not advocating identity cards. I prefaced my remarks by saying that, if that is what the noble Lord wants, then that should be debated. But I was not arguing the case for ID cards.
Lord Cope of Berkeley: First, I congratulate my noble friend on his ingenuity in raising this matter on the Bill. However, as he said, it is relevant because of the necessity properly to identify people in terrorist cases.
I find attractive the idea of a single number for all purposes rather than having a multiplicity of numbers for all the different purposes which my noble friend set out. But I cannot agree to the acceptance of the amendment.
It is difficult to justify the different personal reference numbers from different government departments. I was going to say that the NHS number, deriving, for those of us who are old enough, directly from the identity card number, as it does, seemed to have some primacy in the matter and might take preference over the others. But in response to what was said earlier, I was going to produce my NHS medical card, which I happened to have with me, to demonstrate that one could exhibit one's NHS number. But, to my astonishment, I discovered that my NHS number is not what I thought it was and it is certainly not the identity card number that I have held since my youth, dating back to the war. Perhaps that is not such a good point after all.
As far as the Bill is concerned, I believe that the present position should remain, both in Northern Ireland and in Great Britain. However, it is important that we consider the matter of voluntary identity cards on another occasion. My noble friend has found an ingenious way of reminding us of the issue.
Lord Bach: I too congratulate the noble Lord, Lord Marlesford, on his—to use the words of the noble Lord, Lord Cope—ingenious way of bringing this debate before the Committee. On the government side, we appreciate the fact that he has brought forward these amendments aimed to assist the police and in Northern Ireland the Army to carry out their powers under Clause 44 and under Part VII, Clause 89. The Government welcome the intentions of the noble Lord, but he will not be entirely surprised to hear that I am not in a position to accept the amendments.
Amendment No. 115 would fundamentally change the nature of Clause 44. As drafted, that clause provides the police with the power, when authorised, to stop and search when expedient for the prevention of acts of terrorism. The amendment would widen the scope of the authorisation to enable a constable in uniform to stop and question, as well as to search, to ascertain identity and movements. The amendment
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would combine the current stop and search power with the Northern Ireland specific power at Clause 89(1)(a) to stop and question, usually in the wake of a terrorist incident.
Counter-terrorism provisions in Northern Ireland have traditionally included a specific stop and question power for use usually in the wake of a terrorist incident by the police and the Army. That allows the security forces to stop and question anyone about their identity and movements and makes it an offence not to answer questions.
By any standards, those are necessary but wide powers that we believe continue to be appropriate for the time being in the special circumstances of Northern Ireland, but we do not believe that they should be part of the permanent United Kingdom-wide counter-terrorist powers, with which this Bill is largely concerned. We believe that it is sufficient that the police are able to stop and search people to prevent acts of terrorism. Of course, if terrorist articles are found in their possession, arrest may follow, with the right to detain and question. We do not believe that a more general stop and question power is called for and the police have not asked for such a power. In those circumstances, the Government cannot support that measure. We see the aim, but we do not believe that the case has been made for introducing a new power of this type outside Northern Ireland.
The noble Lord's Amendments Nos. 118 and 119 would, of course, be a safeguard for a person stopped under Clause 44, in that they would give him a right to ask for and to receive a written statement that he was stopped under the identity requirement provided for in Amendment No. 115. Of course, if the substantive amendment is not passed that provision is not necessary.
I now turn to the second limb of Amendment No. 115, with which we should consider Amendments Nos. 120, 121, 122 and 161. The aim is to require specific information to be provided on the exercise of the powers in Clauses 44 and 89. Before dealing with the specifics of those amendments, I say to the noble Lord that his concerns about carrying documentation for proving identity have a wider application which will be raised with the Home Secretary. I know that my noble friend Lord Bassam also is particularly interested in them.
The amendments would require a person to provide the officer with his National Health Service number—that may be a little difficult for the noble Lord, Lord Cope, if tonight's experience is anything to go by—if he is a United Kingdom citizen or with his passport or other immigration details if he is not. It would be an offence to fail to do so under the Clause 44 power, but failure would not, as I read the amendment, constitute an offence under Clause 89. Leaving that point to one side, we do not believe that the amendments tabled by the noble Lord present a practical proposition that the Government could accept.
We believe that the vast majority of United Kingdom citizens will not have with them or know their National Health Service number. I am sure that

733
the Committee will agree that a person must not be detained by the officer for the time that it would take to establish that information. Further, there is no requirement that persons visiting the United Kingdom or resident here as non-UK citizens should have their passport or immigration details with them.
As I have tried to make clear during my response, the Government will ensure that the general point made by the noble Lord previously and again tonight is carefully considered. The Government see the aim of the amendments but we believe them to be both unnecessary and impractical. We hope that they will not be pressed.
Lord Marlesford: I am grateful to the Minister for the way in which he has replied and I am grateful to other noble Lords who have contributed to the debate. I must assure the noble Lord, Lord Dubs, that of course one recognises that there are some people who, for the reason that he gives, do not have documents when they come to this country. However, that is a totally different problem relating to asylum seeking and so on, and the sooner such people receive whatever documents they need or whatever number they needed, the better.
The subject of an identity card is an emotive one. I would not wish people to have to carry cards or passports or any other form of documentation. However, if people find it convenient to do so, as I understand they do in most EU countries that have such systems, that would be a perfectly welcome development and it would be in accordance with the civil liberty approach that I would endorse.
I am grateful to the Minister. Of course, I intended these amendments to be probing. I had no intention of pressing them. I hope that the Government, in their internal discussions on the way forward in relation to requiring more certain forms of identification that are needed in many areas, of which terrorism is only one, will have found these few minutes of value. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 116 and 117 not moved.]
Clause 44, as amended, agreed to.
Clause 45 [Exercise of power]:
[Amendments Nos. 118 and 119 not moved.]
Clause 45 agreed to.
Clause 46 agreed to.
Clause 47 [Offences]:
[Amendments Nos. 120 to 122 not moved.]
Clause 47 agreed to.
Clause 48 [Authorisations]:
[Amendment No. 123 not moved]
Clause 48 agreed to.
Clauses 49 to 52 agreed to.
9 p.m.
Clause 53 [Port and border controls]:
Lord Cope of Berkeleymoved Amendment No. 124:
Page 24, line 14, leave out ("repeal") insert ("revoke an order made under").
The noble Lord said: In moving Amendment No. 124, I shall speak also to Amendments Nos. 130 and 131. These amendments concern so-called "carding" schemes under which aircraft and other operators are required to dish out cards for completion by passengers, and then to forward them to the security authorities.
Amendment No. 124 is of limited purpose. As the Bill stands, a scheme of this character can be introduced under paragraph 16 of Schedule 7 by order of the Secretary of State who can, subsequently, under the part of the clause to which Amendment No. 124 refers, repeal that paragraph by order, thus finishing the carding scheme. But he can only do that once. Once the carding scheme has begun as a result of paragraph 16, then the Secretary of State can only repeal the whole paragraph and leave it out, thus stopping the scheme for good. That means that a carding scheme, once started, would remain permanent and be there for all time. Amendment No. 124 would enable the Secretary of State to revoke the order so that the carding scheme could be suspended for the time being but restarted if the terrorist situation altered.
Amendment No. 130 is a probing amendment to inquire what the intentions of the Government are in relation to these schemes. Will they be used relatively briefly in connection with specific counter-terrorist operations when there is a specific threat? Or is it the intention that they should become a permanent feature of travel within the United Kingdom as well as further afield? It is an important question for the operators because, to introduce such a scheme, would place them in considerable difficulty, about which they are concerned. There is also the wider question from the general civil liberties point of view as to whether or not it is intended to permanently operate these schemes.
A number of other questions arise in this regard. One is to whom responsibility is to be given for the accuracy of the information on the cards. It is difficult to expect the operators to be responsible for the accuracy of the information. They are not in a position to check it even if everybody had their passports with them. In theory it may be possible, but some people are not required to carry passports, identity cards or anything else. In those circumstances, it is difficult for the operator to be held responsible. Indeed, we know that false information is often given on passenger lists for both good reasons and bad.
Amendment No. 124 is particularly concerned to discover whether or not the schemes can be reinstated. I beg to move.
Viscount Simon: Amendment No. 131 seeks to ensure that the provisions for the supply of information contained within this paragraph take proper account of the intricate logistics of airline operations.

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Any request for information places an additional burden upon already tight airline schedules. It is therefore vital to the integrity of the operation that airlines can ensure that complying with such a request causes minimum impact. Consequently, a request for carding to be applied to a specific flight could—if applied inconsiderately—jeopardize the schedule and punctuality of the airline concerned. And punctuality, as Members of the Committee will know, is one of the most important factors in passengers' choice of airline.
Paragraph 16(2), as it currently stands, is unclear concerning at what point in the journey any requirement for carding would be required. The simplest interpretation of the provision is that passengers would be required to complete a card on the ground, either before boarding an aircraft or ferry or, alternatively, after disembarking at their destination. Neither course would be easy to implement and both would risk compromising the punctuality of operations.
Many Members of the Committee will have experienced queues to get onto an aircraft and some may even have complained. To have to queue after getting off the aircraft would not endear the airline to its passengers, and I can well understand operators' concerns to ensure that that does not happen. And, of course, there is the physical aspect of finding a flat surface upon which to write in the cramped confines of an aircraft gate lounge.
The purpose of my amendment, therefore, is to ensure that operators have sufficient flexibility in meeting the carding requirement. It simply enables an additional option for operators to distribute cards to their captive passengers during the flight when they might complete them at their leisure and hand them in before the flight lands without any interruption to the operation. In that way, passengers will be able to embark and disembark with minimum disruption and the Home Office's requirements would be met. As that procedure already exists on international flights, it should be logical and easy to extend it to domestic flights.
Lord Brabazon of Tara: I support Amendment No. 131, to which I added my name arid to which the noble Viscount, Lord Simon, spoke, arid also support the amendment of my noble friend. I should declare an interest which applies also to later amendments. I was recently involved in a Channel Islands-based airline which will be affected by the Bill, along with all other airlines.
The airlines want to know when they have to produce this card. That is not at all clear in the Bill as presently drafted. Amendment No. 131 merely seeks to introduce a requirement that it should be on the arrival of the relevant voyage or flight. As the noble Viscount said, that is precisely what happens when a flight comes in from anywhere else in the world. Non-EU residents are handed cards by the flight crew during the flight and they are then completed. If that is acceptable for the Immigration Service, it should be acceptable for anybody else. The problem is that doing it in any other way could affect the punctuality of
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flights and compromise departure times which, when running tight schedules, would be undesirable from the point of view not only of the airlines but also of passengers. I therefore support the amendment of the noble Viscount, Amendment No. 131.
Lord Greenway: I should like broadly to support the two amendments tabled in the name of the noble Lord, Lord Cope of Berkeley, and in some measure the amendment just spoken to, although, as I shall explain in a moment, I shall part company with the airline interest.
The noble Lord, Lord Cope, was worried about the proposed use of this power, and that is a matter of some concern to the ferry industry. Ferries have used cards in the past. One particular occasion related to the Aintree incident. When there is a specific emergency, passengers are, by and large, quite willing to fill in these cards. However, if it were proposed to do so on a permanent basis, I suspect that there would a good deal of adverse passenger reaction.
As regards Amendment No. 131 tabled in the name of the noble Viscount, Lord Simon, it may be all well and good for airline passengers to be able to fill in their cards either in the terminal building or on the aircraft. After all, when some of us travel to foreign parts we are asked to fill in such cards on the aircraft, and that never seems to present too much of a problem. Indeed, everyone sits in neat little rows. However, that is totally different on a ferry where there may be 2,000 passengers milling around. Therefore, as far as concerns the ferry industry, it would be preferable to leave how the carding is done to the discretion of the operator.
Lord Bassam of Brighton: These amendments have provided us with a useful debate and have given us the opportunity to discuss the carding powers in the Bill. Such powers allow the examining officers to require people who have travelled from one part of the common travel area to another, excluding journeys within Great Britain, to complete and produce a card containing specified information about themselves. There is also the related power to require owners or agents to supply passengers with these cards. So the ultimate responsibility for the completion of the card does not lie with the carrier; that responsibility, in terms of accuracy, is a matter for the individual.
The carding power is to be found in the PTA, though not precisely in this form. The police have found it to be an extremely useful tool in tackling terrorism. It enables them quickly to obtain self-supplied details about passengers. However, as we recognised in our consultation paper, the power has been the source of some concern in certain quarters. Indeed, Members of the Committee have expressed that concern this evening. Objections have included that its use can delay journeys on occasions and that it can appear to be used disproportionately against Irish people.
Mindful of these sensitivities and the availability of passenger information provisions, the Bill provides that the carding power will have to be explicitly

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"switched on" by the affirmative resolution procedure rather than being permanently available, as is currently the case. We envisage that one of the main factors that will be taken into account when deciding whether an order should be laid is the prevailing security situation. Even when a carding order is in force, that is not to suggest that blanket carding of all flights and sailing will take place simply as a matter of course. As now, the police will use the powers carefully and, I am sure, sensitively. But the amendments tabled seek to delineate more precisely these parameters.
Perhaps I may turn to the detail of the amendments. Amendment No. 124 seeks to delete from the face of the Bill the possibility of the repeal by order of the carding power but in its place make specific reference to the power to revoke a carding order. I take, first, the second effect, which we believe to be completely unnecessary. The Interpretation Act provides that any power to make an order includes the power to revoke. As to the proposal to delete the possibility of repeal by order altogether, we understand the concern at providing for repeal of a provision of an Act of Parliament in this manner. Such a decision would obviously not be taken lightly. In the first place, a revocation of a current order would be much more likely. But the carding power has been a long-term cause of concern for some and we think it right to provide an express provision on the face of the Bill to allow for its repeal at some point in the future, subject to Parliament's agreement via the affirmative resolution procedure.
Amendment No. 130 provides that the carding power may be used only,
"in connection with specific counter-terrorist operations".
Of course we recognise the underlying concern here—namely, to ensure that the power is not used disproportionately—but we do not think that the proposed approach would do the trick. While carding can be used in the context of what we understand by the term "specific counter-terrorist operations", it is also useful as part of the wider, ongoing intelligence gathering effort. To limit its use to specific operations would deny the police the power in circumstances where they currently find it invaluable.
Amendment No. 131 provides that carding must take place,
"prior to the arrival of the relevant voyage or flight".
We have two difficulties with this approach, which we take to be designed to deal with concerns about the delay to passengers and carriers that might arise as a result of filling in cards. The first difficulty is technical and minor in that no equivalent provision seems to be made in respect of outward journeys.
The second difficulty goes to the heart of the way the carding power is used. The approach proposed in the amendment is used very occasionally when a whole flight or sailing is "blanket" carded and passengers are asked to fill out their cards on the journey. However, this is rare. It is much more common for the police to use the carding power highly selectively in the context of their wider examination powers. In these
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circumstances "carding in advance" could lead to an unnecessary interference in the lives of some passengers and be wasteful of their time, as the way the power would be likely to work in practice would be for the police to ask everyone to complete a card and then only collect, or study, the cards of any who, on examination, matched a particular line of inquiry they were pursuing. The amendment is, therefore, overly prescriptive and could actually work against the interests of the travelling public.
I hope that in view of the comments and the assurances that I have given, noble Lords will withdraw their amendments.
9.15 p.m.
Lord Avebury: I hope that I may ask the Minister a question. He said that he was not suggesting that carding would be used on all flights and sailings and that it could be applied to particular flights as the police determine is necessary. If they think that a terrorist or terrorists might embark on a particular flight, they can designate that flight as one to which carding applies.
However, the wording of paragraph 16 in Schedule 7 is general. It appears to indicate that the Secretary of State has to make an order which applies to all flights or sailings of the descriptions mentioned in subparagraph (3). How can the Minister claim that the power is selective, as he says? I wish to be assured that we shall not have blanket and unnecessary carding of all flights to or from particular destinations but that the order can be limited to those flights on which there is reasonable cause to suspect that terrorists may be carried. However, if that is the case, the order will not apply continuously over a long period but will apply only when those suspicions have arisen. One would like to see a flexible power which enables the Secretary of State to amend the order without coming back to Parliament for a second affirmative resolution to state that it now applies to certain flights rather than those which featured in the original order. Will the Minister give us an assurance on that point?
Lord Elton: I beg to interject that the idea of a terrorist revealing his profession by means of filling in a card on an aeroplane seems to me rather far-fetched. However, putting that aside, I raise a point now that I had intended to raise later. Will the Minister consider the advisability of putting on the statute book yet another item which almost invites us to be treated as a bargaining counter or a barometer of the temperature of relations between Dublin and London?
If the Bill states that we shall discard this measure when it is no longer necessary, that seems to me to put the Government in a difficult position in the future when there may appear to be no immediate prospect of the necessity for the power but the power may be needed again later and diplomatic pressure is brought to bear to discard it now for political reasons. We have frequently been in that position in the past. It seems to me rather odd gratuitously to create another such instance. I believe that my noble friend's Amendment No. 124 gets over that difficulty in a way which is

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perfectly normal as regards every other statute. I have to welcome a Henry VIII clause which for once enables a government to discard a power rather than take it.
Lord Bassam of Brighton: Henry VIII had some virtues after all! I have listened to the debate with interest. First, I shall try to deal with the point made by the noble Lord, Lord Avebury. The point about the power—the noble Lord almost answered his own question—is that it is enabling. It enables the police to use the carding exercise with some precision and flexibility. That is the point of it. As I made plain earlier, the power can be used when the security situation dictates and demands.
I say to the noble Lord, Lord Elton, that we are mindful of the Irish Government's view, but we also have to be mindful of security considerations and the balance in terms of benefit of having flexible measures, such as the one we are discussing, in a general enabling power. I do not share the pessimistic view of the noble Lord, Lord Elton, that this will be seen as yet another bargaining counter in the "ratcheting up or down" of relations between London and Dublin. It is a responsible power and can be useful, although not all carding exercises and regimes are endless in their benefit. When I flew to the United States, the filling-in of my green card was somewhat fatuous as I was asked on it whether I was a drug dealer or a terrorist—and I could not answer either of those questions. I think the noble Lord takes the point.
We think that this power is useful; the police think that it is useful; the security situation periodically demands it; and it will be used with both precision and flexibility.
Lord Cope of Berkeley: I knew that the Minister had a past slightly more chequered than many Members of the Committee, but I did not think that it would have got him banned from going to the United States.
I am reassured that the Government intend to use these powers as they have been used up to now and do not intend to use them in a blanket way—although that has been suggested occasionally to some of the operators.
I do not think that the Minister answered my question about who is responsible for the accuracy of the information given on the cards.
Lord Bassam of Brighton: I apologise to the noble Lord; I thought I had responded. The accuracy of the information is the individual's responsibility. The carrier's responsibility is simply to facilitate the operation of the scheme. The carrier does not have responsibility for the accuracy of the information; that is down to the individual in each instance.
Lord Cope of Berkeley: That is a reassuring answer. In the light of the discussion we have had, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 agreed to.
Schedule 7 [Port and Border Controls]:
Lord Bachmoved Amendment No. 125:
Page 104, line 41, at end insert ("and "vehicle" includes a train.").
The noble Lord said: In moving Amendment No. 125 I shall speak also to Amendments Nos. 126 to 129 and 135.
These are technical and drafting amendments to Schedule 7 of the Bill. Amendment No. 126 makes clear that the examination officer's powers extend to those entering or leaving the UK from places other than a port—for example, a person landing on a beach. Amendments Nos. 125, 127 to 129 and 135 are technical amendments to ensure that the powers conferred on an examining officer in respect of searches also apply to examinations, and that it is an offence to obstruct an examination as well as an offence to obstruct a search. I beg to move.
On Question, amendment agreed to.
Lord Bachmoved Amendments Nos. 126 to 129:
Page 104, line 41, at end insert—
("( ) A place shall be treated as a port for the purposes of this Schedule in relation to a person if an examining officer believes that the person—

(a) has gone there for the purpose of embarking on a ship or aircraft, or

(b) has arrived there on disembarking from a ship or aircraft.").

Page 106, line 27, after ("search") insert ("or examination").
Page 106, line 35, after ("is") insert ("searched or").
Page 107, line 36, leave out second ("the") and insert ("a").
On Question, amendments agreed to.
[Amendments Nos. 130 and 131 not moved.]
Lord Cope of Berkeleymoved Amendment No. 132:
Page 109, line 1, after ("If") insert (", in connection with specific counter-terrorist operations,").
The noble Lord said: In moving Amendment No. 132 I shall speak also to the other amendments grouped with it.
The amendments relate to a similar provision for the supply of passenger information under paragraph 17 of Schedule 7, whereby schemes can be introduced in which the operators of a ship or an aircraft are required to produce lists of their passengers, crew and vehicles. This provision is similar to that contained in previous legislation, but with the addition of vehicle particulars.
Amendment No. 132 seeks to probe when the Government anticipate using the power, and whether it will be used from time to time in connection with specific operations or in a more blanket manner. Amendment No. 134 seeks to ensure that only information which can reasonably be expected to be provided should be obtained by orders of this kind. Some things are inherently more difficult to obtain than others depending on the circumstances of the particular airline or shipping company.

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Again, it is important to understand who is responsible for the accuracy of a list of this character. In this case, the list is being drawn up by and specifically given to the authorities by the owners or agents of the ship or aircraft, but they cannot really be held responsible for its accuracy. They will have to rely on what they are told. Even in the case of vehicle numbers, while they may take them down correctly, they are not in a position to verify whether the correct plates are on the vehicle. Dates of birth and that kind of detail are extremely difficult to verify except in the case of those who happen to be carrying their passports. Of course, there is no requirement in most of these cases to carry a passport because these are essentially internal movements of ships and aircraft, not foreign movements.
These are essentially probing amendments intended to discover the way in which these powers are going to be used and the details of them. I beg to move.
9.30 p.m.
Lord Greenway: I support the noble Lord, Lord Cope of Berkeley, in Amendments Nos. 132 and 134. I have a number of amendments grouped with his amendments. As the noble Lord explained, the amendments relate to the provision of a passenger manifest by ferries and airlines. Providing information is not new. Under EU rules, ferry operators have to provide information regarding the name, sex and broad age group of passengers. What these new powers seek to do is extend that to include the place and date of birth.
The Bill basically repeats the powers existing in the Prevention of Terrorism Act with one or two additions. The noble Lord, Lord Cope, mentioned the addition of vehicles. There is also reference as regards ships to "expected to arrive" rather than information to be provided on ships arriving in a UK port—for example, looking to a situation prior to actual arrival in port. Operationally, this extension is very significant as the information is not easily collected on board for hand-over at port of disembarkation. It would really have to be collected prior to sailing and then transmitted independently.
The existing power in the Prevention of Terrorism Act has not been used, although a number of police forces did try to use it last summer. That led to an outcry among the ferry companies, as a result of which the police withdrew their request. This forced the ferry companies to look at the situation, certainly as is possibly envisaged in the Bill whereby the power would be continuous. The ferry companies believe that the provision would give rise to all sorts of additional costs in relation to extra staff and perhaps added technology for listing these manifests. In addition, in relation to the incident I mentioned last summer, representations were made by the diplomats in the Republic of Ireland.
The other worry is that, by forcing ferry companies to comply with these requirements, time would be lost. Modern ferry operations, particularly on the Irish Sea,
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are carried out by high-speed ferries with a very short turn-round time—perhaps 30 minutes—and it could well be that ferry companies might lose one round trip a day, which would have serious financial implications.
I mentioned in debate on previous amendments our worry about whether the power would be used at all times or at specific times. In a way the Bill gives the police unfettered authority to use the power. Police checks, which are by no means new, have not so far given rise to such requirements. Under EU regulations, the ferry operators already provide the police with access to the information they have and they have every intention of continuing to do so.
Perhaps I may turn to the specific amendments standing in my name. Amendment No. 132A covers the point of who may invoke the power to require carriers to provide the police with passenger information. Currently, this authority is vested in any examining officer; that is, any constable, immigration or designated Customs officer in any place. The invocation of this power is fundamentally different from the examination activities of stopping, questioning, searching and detaining individuals or goods, with which the rest of Schedule 7 is concerned. While the latter functions are undoubtedly the preserve of examining officers, the invocation of this power is more truly a police management decision with consequences reaching far beyond the port of arrival.
Vesting the authority, as my amendment suggests, in the chief constable within whose area a port of arrival is located would more closely reflect the nature of a sensitive management decision being taken and would provide an assurance that a decision would be taken judiciously and based on a full and sensitive appreciation of its wider consequences and by an officer or his deputy. I note that an amendment standing in the name of the noble Viscount, Lord Simon, provides that an assistant chief constable should be the person mentioned. I have no particular quarrel about that. Those two people would certainly already have built up an effective working relationship with the ferry companies concerned.
Amendment No. 133A inserts at the end of subparagraph (2) the words,
"as soon as reasonably practicable".
That replicates the specification from the existing Prevention of Terrorism Act about when compliance with a police request must take place and would provide a palliative against undue disruption being caused by an unreasonable request. Carriers, especially ferries, cannot provide information at the flick of a switch. It takes time. We have already heard about the misinformation that can be provided.
The final amendment standing in my name, Amendment No. 136A, inserts a new subparagraph providing a defence for the owner or agent of a ship or aircraft charged with an offence under subparagraph (1) pursuant to paragraph 17(2). That replicates the statutory protection given in paragraph 1(4) of Schedule 6 to financial institutions when faced with a request with which they are unable to comply to supply

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customer details to the police. That was introduced at Report stage in the Commons by the Minister after consultation with members of the financial, business and banking community.
The airline operators and ferry operators were not consulted and they would face exactly the same predicament as the financial institutions and indeed would have sought the same protection, which is what my amendment seeks to do. Of particular significance in the context of ferry operations, the amendment would also protect carriers which pass on false details that had been declared to them by their customers and which they, in the absence of any passport requirement, had no means of verifying. I believe that Mickey Mouse and Donald Duck, in terms of names written down on these documents, have moved on and I understand that Tony Blair is quite a favourite at the moment.
This new measure places quite an onus—particularly the financial implications involved—on the ferry business. I very much look forward to hearing what the Minister has to say.
Viscount Simon: I should like to speak to Amendments Nos. 133, 136 and 137 standing in my name, although there may be a little duplication in my remarks because several points have already been covered by the noble Lord, Lord Greenway. For example, the first part of Amendment No. 133 states,
"as soon as reasonably practicable",
which the noble Lord has already discussed in detail.
The second part of that amendment seeks to establish the gravity of a request for information from a ferry or airline operator. I believe it is necessary to stress the importance of the need to ensure that such requests are not made frivolously or lightly; are made only when there is a specific need; and that officials should not see this as a power which they can invoke on a casual basis.
Airline and ferry companies understand and accept that, on matters of security, there will be occasions when police officers will need to request information from them. Their concern is that such requests invariably cause disruption and cost to their operation and that passengers do not like the additional bureaucracy. There should be in place safeguards to ensure that the authority to request information is not abused or used as a "catch all" on the basis of "better safe than sorry". Clear guidance must be provided for examining officers that they will need a specific reason for requesting passenger information and that they will need to justify that reason to a very senior officer.
By investing the overall authority in very senior officers—I have suggested that this should be at the level of assistant chief constable or above—they will, by virtue of their position, apply diligence in deciding when it may be appropriate to make such a request. This is a process which should police itself (no pun intended) and ensure that all those involved in the process approach it with appropriate seriousness.
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On domestic journeys, albeit over water to and from our islands, passengers have the right of passage, do not require passports and are under no obligation to provide their carrier with personal information of the kind which might form the basis of a request from the authorities. On exactly the same basis, carriers have no statutory right to demand information such as the date and place of birth—available on international services through the requirements of passports—and therefore do not hold such information on their databases. That information has to be gathered on a voluntary basis and co-operation is generally much more easily achieved if individuals understand the specific reason for being asked to give personal details. It makes good sense, therefore, to ensure that the power to make such requests is exercised carefully and responsibly and only by approval of the most senior police officers in respect of the particular circumstances that will ensure the co-operation of the public.
I turn now to Amendments Nos. 136 and 137. Amendment No. 137 would be required for sequencing purposes as a natural consequence of accepting Amendment No. 136, which has already been spoken to by the noble Lord, Lord Greenway. The intention of Amendment No. 136 is to provide a defence for airlines and shipping companies in the event that they are unable to comply with a request for information about their passengers. I am inclined to believe that the lack of such a provision in the Bill is simply an oversight. Exactly this defence is extended to financial institutions in paragraph 1(4) of Schedule 6 in circumstances where either the financial institution does not have access to the required information or it is not reasonably practicable to provide it.
It is quite possible that individual passengers, aware of their rights of passage within Great Britain, may decline to provide information to the carrier or even deliberately offer incorrect information, as happens when names such as "Tony Blair" and various others are supplied. In those circumstances it would not be right for the carrier to be held responsible for failing to provide the information required under the terms of this schedule.
There are particular reasons in respect of travellers for requesting a similar defence for ferry companies and airlines. Not least among those are the facts which I outlined in my earlier remarks about the obligation for individuals to provide information and the rights of transport operators to demand it. I believe that there is every reason to ensure that transport operators are afforded a similar defence to that offered to financial institutions.
Lord Brabazon of Tara: I support these amendments and have put my name to three of them. The arguments have largely been made; however, I should like to emphasise one point to the Minister. Within the common travel area there is no requirement to carry any form of identification whatsoever. Therefore, it is hard for a shipping company or an airline to demand this information from passengers.

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The airline or shipping company may well have the name of the passenger, and it may be the name in which the ticket was booked. But if there is also a requirement to state the date and place of birth of each passenger, the airlines and shipping companies have no means to ensure the accuracy of the information given. Therefore, it is essential that some defence should be given to the owner or agent for not providing the specified information. That is the purpose of Amendments Nos. 136 and 137.
Mention has been made of false information and false names being given, and that has happened. But when I was a Minister, on more than one occasion, for security reasons, I travelled to the Republic of Ireland on a ticket booked by my officials deliberately using a false name. I do not know whether it still happens, nor do I know whether the Minister has been to the Republic of Ireland on official business, but it certainly applied 10 or so years ago. Would the airline be blamed for the fact that my officials had booked my ticket in a false name or should I be blamed? Who would be blamed? Under this provision, will an airline be held responsible if a ticket is deliberately booked in a false name?
There is a further problem. While in many cases passengers start their journey in this country or in the Channel Islands, for example, they check in, and the airline or shipping company has an opportunity to ascertain the person's name and possibly even the other information—as I said, there is no guarantee that the information will be accurate—many passengers come into Heathrow from further afield, from America, for example. They come in through immigration and then go straight to the gate of the flight that will take them to the Isle of Man or wherever it happens to be. The first the airline sees of the passenger is at the check-in gate. If the airline then has to find out the information that might be required of that passenger, it could result in endless delays. Imagine someone being asked to fill in a form, with 20 or 30 people standing behind him and with the aeroplane about to depart in 20 minutes' time.
The industry has no problem with being as helpful as it possibly can. All that these amendments do is to try to be practical about this requirement and to give the industry some defence against providing information which, although it is thought to be perfectly accurate, may not necessarily be so. I very much hope that the Minister will be able to look with some sympathy at the arguments that have been made.
9.45 p.m.
Lord Bassam of Brighton: My Lords, I am grateful to Members of the Committee who have taken part in the debate. The quality and content of the debate reflect well on the operators, with whom we have continued to have a constructive and valuable dialogue.
The amendments focus on the passenger information that the police may require owners or agents of ships or aircraft to provide. Requiring
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carriers to provide information about passengers and crew is, as the noble Lord, Lord Cope, rightly observed, not new. The current Prevention of Terrorism Act already requires carriers to provide the police with a list of the names, dates and places of birth of passengers and crew, unless there is a dispensation given by the police. So there is already an existing power.
This is one of those situations where the price of peace and freedom is eternal vigilance. That lies very much at the heart of the debate. We must all pull together to ensure that we are vigilant.
It is perhaps worth reminding the Committee of the words of the noble and learned Lord, Lord Lloyd of Berwick. In his report he commented that,
"there are sound strategic reasons for an island nation to carry out … checks at ports".
The provision of passenger and crew details is a very important part of that process, and I do not believe that any noble Lord argued against that. The Government recognise that requirements on carriers to co-operate must be reasonable and must be conducted sensitively and proportionately so that the impact on the travelling public and business in cost and disruption is kept to the minimum. We also realise that we must work closely with carriers and operators at ports and airports to achieve that. A partnership approach is required.
One of the reasons we have moved from listing on the face of the Bill the types of passenger information that the police will be able to require is our recognition that if we are to go beyond the present requirements we must consult the industry even more fully, and we have already begun that process. I can assure the Committee that in drawing up any orders we shall take careful account of the views of industry and the requirements of the police. For that reason, I am grateful to all Members of the Committee who have contributed to the debate.
The amendments before us this evening narrow down the circumstances in which passenger information must be provided by the owners or agents of ships or aircraft. No doubt in each case the concern is the effect that the requirements could have on the operations and costs of the carrying companies and, understandably, the practicality of carrying them out. As I hope I have already indicated, we understand the underlying concerns and shall work with the industry to minimise any unnecessary burdens and disruption.
I turn to the detail of the amendments. Amendment No. 132 in the name of the noble Lord, Lord Cope, provides that information may be requested only in connection with specific counter-terrorist operations. While I recognise the underlying reason for the amendment, I must advise the Committee that such an approach will constrain the ability of the police to obtain the information which, understandably and rightly, they require. The gathering of such information from carriers may not always be confined to a specific investigation but form part of ongoing police activity at ports that is intended to disrupt terrorist movements and help prevent terrorist outrages.

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As the Committee appreciates, police work does not always fall into neat little compartments of specific investigation, and that is precisely so in the case of preventive and intelligence-led policing. Although it is perhaps a technical point, for security purposes it may not always he possible for the police to disclose the reasons why information is requested. In short, police operations would be damaged if the limitation imposed by this amendment applied. I am sure that that is not what the amendment seeks to achieve but that may be its unintended effect.
I turn to Amendment No. 133 in the names of the noble Viscount, Lord Simon, and the noble Lord, Lord Brabazon of Tara. The amendment introduces two additional concepts and also reiterates the link between a request for information and the existence of a specific terrorist investigation, which I have already discussed. The first point is that owners and agents should comply with requests "as soon as reasonably practicable", and the second is that such a request may be made only after consultation with a police officer of at least the rank of assistant chief constable. The noble Lord, Lord Greenway, has tabled amendments similar to Amendment No. 133. However, the noble Lord proposes that consultation should be at the level of chief constable.
On the first point, we recognise that that part of the amendment picks up the current language of the PTA. It is not envisaged that carriers will be asked to provide information to an unreasonable timescale. Even if such a request was made the courts would be unlikely to have sympathy with any ensuing prosecution. We therefore took the view that it was unnecessary to carry over that part of the provision from the existing legislation. I note the view that the industry may derive some comfort from an explicit provision to that effect, and I shall take away that particular point and give it more detailed consideration.
On the second point, the Government are not attracted to the proposition that very senior police officers should be drawn into the decision-making process about what passenger information should be requested from whom, when and in what circumstances. These are operational decisions which, rightly in my view, rest with those officers at the ports in the front line of counter terrorist operations—as is the case now under the existing PTA. It would inhibit and hinder the police operation if each time they felt they needed information it were necessary for the operational officers at the port to seek higher authority from their headquarters and to request it—particularly if it were information needed quickly. What is important of course is that good relationships are built up and maintained at ports, with the police and the carriers working together. Each must recognise their responsibilities to the other in the wider interests of all. To add layers of bureaucracy—I fear that seeking the permission of a senior officer would do so—is not, we believe, the answer.
Amendment No. 134 in the name of the noble Lord, Lord Cope, focuses on the information that may be specified in any order under this provision. There is still a debate to be had at Clause 122 about whether
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only the first such order should be subject to the affirmative resolution procedure, as recommended by the Delegated Powers and Deregulation Committee and reflected in government Amendment No. 185; or whether, as proposed by the noble Lord, Lord Cope, the affirmative resolution procedure should apply for all such orders. We shall listen carefully to the points made on this issue.
In this amendment the noble Lord proposes that the order may only specify information which the owners or agents have in their possession or may be reasonably be expected to obtain. I understand the concern which carriers may well have about the difficulties which they might encounter if they are asked to provide information not already in their record systems; or if unreasonable demands for other information are made of them. Currently we have no plans to specify by order anything which is not already contained within the present legislation; that is to say, the name, date and place of birth. As I have said, that has potentially been a requirement on carriers for many years now and it is important that the police should be able to continue to obtain that information. We would only envisage specifying information above and beyond that in any order after close consultation with all parts of the industry. Let me stress, therefore, that we shall not specify in an order passenger information beyond that already required under the PTA without consulting the industry on its availability. Furthermore, there will be an additional opportunity for your Lordships' House to consider the requirements in the order when it is laid. For those reasons we think the amendment unnecessary and we hope it will not be pressed.
Amendments Nos. 136 and 137 in the names of the noble Viscount, Lord Simon., and the noble Lord, Lord Brabazon of Tara, and Amendment No. 136A in the name of the noble Lord, Lord Greenway, create a statutory defence for use if charged with failing to provide specified information. This ties in with the earlier amendment suggesting that information should be requested only if it is in the possession of the carriers, or they may be reasonably expected to obtain it. I have stressed already that we shall not add to the present requirements without taking account of the views of the industry. Equally, I should stress the importance of maintaining the ability of the police to secure the information which is already specified under the PTA. We believe that it is the responsibility of carriers to obtain such information if it is requested, but equally it is the responsibility of the police to act reasonably and recognise the practicalities which carriers face from time to time when a request is made. As we have already said, a partnership approach is required enabling the law enforcement authority's own carriers to work together to combat the threat of terrorism. A prosecution under this part of the Bill would only be as a last resort where a particular company was wilfully or persistently failing to co-operate; and any order or request for information by the police could, of course, be the subject of judicial review proceedings, which after 2nd October of this year should take into account whether convention rights have been observed. We

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believe that our focus should be on getting the information right in any order we make after careful consultation with the industry. As such we do not believe that the inclusion of a statutory defence is the right way to proceed.
The noble Lord, Lord Cope, asked specifically about the responsibility for information and its accuracy. It is the carriers' responsibility to pass on accurately information provided to them, but it is not their responsibility to verify the accuracy of the information itself. I hope that that clarifies the point he raised.
I trust that Members of the Committee will want to reflect carefully on the points I have made in response to their considered amendments. I am sure that they will take note of the matter which I said I would take away and consider further. I trust that in the light of the explanations I have given they will not pursue their amendments.
Lord Brabazon of Tara: Before my noble friend decides what to do with his amendment, perhaps I may ask the Minister to clarify a point which I raised. What happens if a passenger deliberately gives a false name? Is the carrier responsible for passing that information on? Will he be responsible for the fact that the name is false, or will it be the responsibility of the passenger?
Lord Bassam of Brighton: I understand that the carrier can pass on only that information which he has reasonably obtained in an accurate form based on such information. It is not for the carrier to verify the quality or veracity of that information and it would be unreasonable to expect him to do so. He can only act reasonably in the circumstances.
If the carrier is told something and he believes it to be the case, and if he passes that information on in an accurate form, one would not want to hold him to account for any inaccuracies which were not in any way, shape or form his responsibility.
Lord Cope of Berkeley: We have had an interesting and slightly longer debate than anticipated. The Minister said a great deal that will be reassuring and we shall study his words carefully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 132A to 134 not moved.]
Lord Bassam of Brightonmoved Amendment No. 135:
Page 109, line 26, after ("search") insert ("or examination").
On Question, amendment agreed to.
[Amendments Nos. 136 to 137 not moved.]
Schedule 7, as amended, agreed to.
10 p.m.
Clause 54 [Weapons training]:
Lord Goodhartmoved Amendment No. 138:
Page 24, line 22, after ("if") insert ("for the purpose of assisting, preparing for or participating in terrorism").
The noble Lord said: In moving Amendment No. 138, I shall speak also to Amendments Nos. 139, 140, 146, 151 and 159. A common thread runs through all the amendments in the group.
Although Clause 54 is based on existing legislation applying only to Northern Ireland, the clause will apply to the whole of the United Kingdom. Under Clause 54,
"a person commits an offence if he provides or receives instruction or training in the making or use of … firearms … explosives, or … chemical, biological or nuclear weapons".
Perhaps we can leave out of the debate chemical, biological and nuclear weapons and concentrate on more ordinary firearms.
On the face of it, Clause 54(1) and (2) extend to weapons training in the Army, the police or the cadet force. The subsections extend to and criminalise a farmer teaching his son to shoot rabbits or pigeons. They also extend to and criminalise training provided to employees of a legitimate armaments business.
Clause 54(5) states:
"It is a defence for a person charged with an offence under this section in relation to instruction or training to prove that his action or involvement was wholly for a purpose other than assisting, preparing for or participating in terrorism".
However, it is wholly wrong to go about this in a back-to-front way which initially criminalises perfectly legitimate, and indeed often necessary, activities and then provides an excuse if anyone who legitimately follows those activities is charged. This is not a case of a special defence to a general crime. It is, for example, different from making exceeding a speed limit an offence and then allowing specific exemptions from that, such as fire service vehicles in the course of their duties. In a case of that kind, it is legitimate to place on the defendant the burden of proving a special defence—the standard of proof in such a case being the civil standard of balance of probabilities rather than the criminal standard of beyond reasonable doubt.
It is absurd to say that training in the use or making of weapons is itself a general offence. As I have already indicated, such training is often not only legitimate but necessary. The gist of the offence here is not providing weapons training per se, but providing weapons training for purposes of terrorism. Indeed, that is how the offence itself should be defined. If that is so, then subsection (5) would need to be deleted, as we have provided.
Of course, if terrorist purposes are part of the definition of the offence, then that is a necessary element for the prosecution to prove. If the defendant raises a reasonable doubt in the mind of a jury or, in the case of the Diplock courts, the mind of a judge as to the purposes for which he is providing weapons training then, of course, he would be entitled to be acquitted. That is as it should be. It is contrary to the

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principles of British law to require a defendant to disprove the existence of an essential element in the case.
I move on to Amendments Nos. 146 and 151 in relation to Clause 57 of the Bill. That clause provides that possession of an article in circumstances which give rise to a reasonable suspicion that possession is connected with terrorism is an offence. Clause 57(2) requires a defendant to prove that possession is not for terrorist purposes. Again, that is too high a standard. Conviction can be on the basis of reasonable suspicion. Certainly, it should be enough for the defendant to show that there are reasonable grounds for believing that possession may not be for terrorist purposes; in other words, that the suspicion does not exclude reasonable doubt.
Clause 57(3) imposes a wholly artificial test of possession, where the mere fact that property is found on premises at the same time as the defendant creates a presumption of possession which the defendant has to disprove. That means that if terrorist equipment is found, let us say, in the back of a pub, anyone who is in the pub at any time when the equipment was there is deemed to be in possession of that equipment unless they can prove that they did not know or were not in control of it. Therefore, in our amendments we propose to delete Clause 57(3) altogether on the grounds that it provides a wholly artificial test of possession.
Amendment No. 159 deals with Clause 58, which makes it a crime to possess information which is likely to be useful to a terrorist. That could extend to possession of a copy of Who's Who. Certainly that is a document that at one time the IRA appear to have used for the purposes of identifying potential victims. However, they seem to have made the mistake of using out-of-date copies of Who's Who and putting bombs outside houses which formerly had been occupied by a target hut, at the time of the bombing, were occupied by someone else. Again, this is a case where under the Bill as it now stands a reasonable excuse for possession has to be proved. We think that is inappropriate. It is putting it back to front. What Clause 58 should require is for a crime of possession with a view to the article's use by a terrorist.
The common factor which lies behind the way all these clauses are drafted is an attempt, I believe, to make it easier to obtain convictions. That, some people might say, is a legitimate aim. If it was done properly, of course, I would agree it was a legitimate aim, but it cannot be done in the way that it is being done here.
What is happening here is that offences are being artificially subdivided and some elements then have to be disproved by the defendant rather than proved by the prosecution. The artificiality is shown, for example, by the absurdity of treating training in the use or manufacture of firearms as an offence in itself.
I believe that these clauses as they now stand do not adequately comply with the presumption of innocence. Someone charged with terrorist offences is entitled to rely on the presumption of innocence just as
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much as someone charged with other offences. An attempt to get round this by presuming some of the elements of the offence and requiring the defendant to disprove them is not only wrong in itself but likely to be counter-productive. It is inconsistent with the presumption of innocence and likely to conflict with the Human Rights Act as well as with the ancient traditions of British justice. I beg to move.
Lord Beaumont of Whitley: The noble Lord, Lord Goodhart, has given very ably the thinking behind his amendments, which is also the thinking behind a number of mine.
Terrorism is not what it once was. Some of your Lordships will have seen the very good film about the Irish ascendancy in Cork during the remaining years of the British rule in Ireland. A friend of mine, who is a member of the Irish ascendancy, says she remembers her uncle who when he was a schoolboy had his shotgun stolen by the IRA while he was away at school. When he came back he found it on the hall table, complete with cartridges, for him to use during the holidays, and when he left for school again he left it on the hall table and it disappeared the same day.
There are all sorts of problems where there is an uncertain support for terrorists in a particular area, and it is very important in that area that we should put up a situation where people cannot be automatically thought guilty and should be able to follow the perfectly normal British practice of being considered innocent until they are proved guilty.
It is a difficult path to tread, but I am sure the amendments of the noble Lord, Lord Goodhart, and my amendments to a certain extent come from very much the same stable. We are on the right track and I hope that the Government will pay attention to what we are saying.
Lord Marlesford: I find myself in almost total agreement with the noble Lord, Lord Goodhart. These clauses, as drafted, are extremely objectionable. Of course, I see the purpose of them but they would be subject to misuse; they give the wrong impression; and they are not in accordance with our traditions.
I shall give two examples, one of which is farcical and the other less farcical. When I was a small boy aged about eight and interested in chemistry, I remember being shown how, if you put iodine crystals in ammonia and left them for half an hour or so and then poured them away, there was a black sludge. When the black sludge dried, you could scatter it on the ground and if people walked on it, it made a most satisfactory, although quite harmless, bang. That particular experiment came to an end when I had a matchbox of the stuff in the pocket of my shorts on a very hot day; unfortunately, it dried without me realising it and I had a large violet stain on my thigh for many months. I have never been quite the same since.
I take another more sensible and serious example. The Committee will be aware that in certain eastern European countries, there was a time when the possession of a typewriter was seen as unacceptable

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because it could be used for subversive purposes. Typewriters had to be registered and the print had to be recorded so it could, if necessary, be linked with any subversive literature which appeared. People who were regarded as unsuitable were not allowed to have them. I remember that that applied particularly in Romania.
I ask the Government to reshape those clauses, roughly on the lines proposed by the noble Lord, Lord Goodhart. I say happily that I yield to no one in my desire to have effective opposition to terrorism, but we must be extremely careful that we do not use methods which are unacceptable to the great majority of people in this country.
Lord Cope of Berkeley: When I looked at Amendment No. 138 before the debate, it did not seem to me that the effect was very different. The effect of Clause 54(5) is to provide a defence for anyone who has a legitimate use for instruction or training and so on, other than for the purposes of terrorism. But listening to the noble Lord, Lord Goodhart, I thought that his drafting was mildly to be preferred in having the full offence rather than having a very wide offence and then providing a defence for it.
But I take a different view of the amendments to Clauses 57 and 58 dealt with by the noble Lords, Lord Goodhart and Lord Beaumont of Whitley. It is difficult to express a view on this without referring back to my own experience, because that colours everything that I think on this matter.
The experience I have of this matter leads me to the view that it is extremely difficult for the police in Northern Ireland to prove terrorist offences. Perfectly ordinary articles can be used as absolutely deadly weapons. There are many examples, one of which is the coffee-jar bomb. A large number of our fellow citizens have been killed by coffee-jar bombs.
At the same time, one of the features of organised terrorism is that the people involved are extremely disciplined. They learn carefully from any conviction which is achieved. They review it extremely carefully afterwards and then send out instructions to all their people in order to avoid anybody else being convicted in the same way.
In those circumstances, in my view, the law has necessarily had to become more draconian. I accept that these provisions are more draconian than ideally we should wish. But in facing terrorism, we are not in an ideal situation.
As I said in relation to an earlier amendment, we all hope that this long phase of terrorism in Northern Ireland is coming to an end. However, it has not yet come to an end; we are not legislating on the basis that it is over and nor should we. We hope that we shall arrive at that point before long, but we are not there yet, and that is not the basis of this legislation.
In looking at the record of Northern Ireland one sees an appallingly low record of convictions in comparison with the number of ghastly offences that have taken place. The reason is the expertise of the terrorist in avoiding conviction, often due to the
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ordinary articles that they use to carry out their evil operations. I would not go to the stake over every word in the drafting of these clauses, but clauses such as these that place the onus of proof, as Clauses 57 and 58 do, are, I believe, a necessary part of our defence against terrorism now and for the foreseeable future. Therefore, I do not support the amendments to Clauses 57 and 58.
10.15 p.m.
Lord Bassam of Brighton: I am grateful to the noble Lord, Lord Cope, for his last contribution. He speaks on this subject with the kind of wisdom that I do not have, as he served honourably in the Northern Ireland Office. I listened carefully to what he had to say on all these matters.
I am also grateful to the other Members of the Committee who contributed to the debate on what is a difficult subject. I am a little worried about the pockets of the noble Lord, Lord Marlesford, and the explosive devices that they have contained in the past. I am sure that they did not have a host of other ghastly things in them as well, as boys' pockets tend to.
I am particularly grateful to the missing noble and learned Lord, Lord Lester of Herne Hill, who gave me advance warning of his concerns when we discussed these aspects of the Bill some two months ago. That was a helpful and instructive discussion.
It may help if I set out the position of the Government in this area. As your Lordships know, the Government's view is that the Bill, as introduced, is already compatible with the European Convention on Human Rights. However we accept, especially in the light of the Kebilene case, that it would be helpful to make express provision for the burdens placed on the defendant in the Kebilene provisions to be evidential rather than persuasive or legal burdens.
I have spent some time with my partner, who is a lawyer, learning the difference between "evidential" and "persuasive". We had a most instructive discussion between the cornflakes and the toast.
As can be seen from Amendment No. 176A, this new provision is to apply not only to the Kebilene offence in Clause 57, but also to the similar provisions in Clauses 39(5)(a), 54, 58, 77 and 103, together with their equivalents in the "transitional EPA" which are kept alive under Schedule 1 to the Bill.
Amendment No. 207A ensures that Amendment No. 176A will come into effect immediately on Royal Assent.
I want to explain how we have arrived at the list of provisions in subsection (5) of Amendment No. 176A. Those are provisions where to put a persuasive burden on the accused would amount, or come close, to making him disprove an essential element of the case.
I should also say a word about all the other so-called "reverse burdens" in the Bill—those not listed in subsection (5) of the amendment. It is, of course, for the courts to interpret the statute, but the Government's view is that it is right for the other burdens that the Bill places on defendants to be persuasive burdens.

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I must stress that these amendments are not intended to alter the effect of the provisions in question. They merely set out on the face of the Bill what we believe would in any case have been the effect of the provisions as originally drafted. Nevertheless, I hope that your Lordships will welcome this clarification.
I now turn to the amendments that have been tabled by other noble Lords. Perhaps I may begin with Amendments Nos. 138 to 140, tabled by the noble Lord, Lord Goodhart, and his noble friends. They would remove completely the "reverse burden" construction of the offences in Clause 54. These offences are based on those in Section 34 of the Northern Ireland (Emergency Provisions) Act and are modelled closely on that section. The noble Lord made a number of respectable points in going over the issues that the amendments cover. The Government believe that, while it is not necessary to restructure the provision as fundamentally as Amendments Nos. 138 to 140 propose, we feel that, by including Clause 54 among the offences dealt with in Amendment No. 176A, we have struck the right balance.
Having reflected on the comments made by the noble Lord, Lord Goodhart, and the careful arguments he advanced, I shall give an undertaking this evening to look again at Clause 54 and give it more detailed consideration. I make no commitments or promises in saying that, but I shall certainly take away the points raised by the noble Lord and give them further thought.
I turn now to Clause 57. Amendments Nos. 146 and 159, tabled by the noble Lord, Lord Goodhart, would, we hope, have a similar effect to the Government's in terms of the burdens of proof in Clauses 57(2) and 58. So, too, would the amendments tabled by the noble Lord, Lord Beaumont. However, the Government's approach is simpler in so far as it sets out clearly on the face of the Bill that an evidential burden is intended. Amendment No. 176A is also more comprehensive in that it deals with other similar burdens elsewhere in the Bill.
Finally, Amendment No. 151 would dispense completely with Clause 57(3), while the amendment of the noble Lord, Lord Beaumont—Amendment No. 152—proposes deleting only Clause 57(3)(a). The Government cannot accept those amendments. We believe that all of subsection (3) is essential to the effective operation of the provision. With that explanation, I trust that the noble Lord will not press his amendment.
Before concluding, I must say a word about government Amendment No. 141 to Clause 54, which is also part of this group. This amendment gives third parties the right to be heard before any forfeiture is made under Clause 54, and ensures property is not forfeited until the end of any appeal process. This additional protection for individuals is in line with our approach in Clauses 23 and 58. I trust that the Committee will welcome it.
Lord Goodhart: I am grateful to the Minister. I saw a copy of the letter to him from my noble friend Lord
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Lester of Herne Hill and am aware that my noble friend is happy with the amendments, particularly Amendment No. 176A, which the Government will bring forward on the final clay of Committee stage.
Having made my points on the Bill as now drafted, I am happy to acknowledge that most of them will be dealt with if Amendment No. 176A is incorporated into the Bill. It represents a substantial step forward and I am particularly grateful to the Minister for agreeing to look specifically at the problems of Clause 54, on which I was pleased to have not only the wholehearted support of the noble Lord, Lord Marlesford, but also the qualified support of the noble Lord, Lord Cope. In those circumstances I am happy not to press my amendment. Frankly, if things go according to plan, it is unlikely that I shall wish to bring any of these amendments back at Report stage. I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
[Amendments Nos. 139 and 140 not moved.]
Lord Bassam of Brightonmoved Amendment No. 141:
Page 25, line 14, at end insert—
("( ) Before making an order under subsection (7) a court must give an opportunity to be heard to any person, other than the convicted person, who claims to be the owner of or otherwise interested in anything which can be forfeited under that subsection.
( ) An order under subsection (7) shall not come into force until there is no further possibility of it being varied, or set aside, on appeal (disregarding any power of a court to grant leave to appeal out of time).").
On Question, amendment agreed to.
Clause 54, as amended, agreed to.
Clause 55 agreed to.
Clause 56 [Directing terrorist organization]:
Lord Beaumont of Whitleymoved Amendment No. 142:
Page 25, line 25, leave out (", at any level,").
The noble Lord said: Members of the Committee will have noticed that I stayed quiet during the whole of this afternoon and evening until the last set of amendments was called. Now I come into my own with the final amendment of the day. It is very simple and it will take only a very short time to deal with it. I did not intervene when the noble Lord, Lord Elton, said, semi-facetiously, that he did not think that terrorists would enter on such cards the fact that they were terrorists. As the noble Lord is no longer in the Chamber, I must tell him through Hansard about my grandfather who was a Member of the British Parliament and married to an American. When he arrived in New York and was asked whether he intended to subvert the constitution of the United States by force, he said, "Yes, of course". He was noted for having a rather bizarre sense of humour and also for being an extreme radical. No one quite knows to this day which of those two qualities was actually in force at that particular time—
Lord Avebury: I trust my noble friend will allow me to intervene. During the McCarthy era, when my uncle

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was asked a similar question, "Do you intend, while in the United States, to commit any immoral, sexual offence?" he replied on the form, "Yes, I do—with Senator McCarthy".
Lord Beaumont of Whitley: I do not know what happened to my noble friend's relative, but my grandfather spent the night on Ellis Island until his wife's uncle—who just happened to Mayor of New York at the time—managed to spring him the next morning.
My amendment takes a few words for the purpose of asking what on earth they are meant to convey and what they are meant to do. They appear to be rather unnecessary. I do not know what they mean, or why they are in the provision. No doubt the Minister will tell me. I beg to move.
Lord Bach: Having just heard about the ancestors of two noble Lords, I think that that is probably enough for this hour of the night. Therefore, I shall not try to top their stories. With permission, I shall speak to the amendment on the Marshalled List. The "directing" offence in Clause 56 is based on an existing Northern Ireland offence under Section 29 of the EPA. It is aimed at those who direct the activities of organisations without committing acts of terrorism themselves.
Such persons may be active at the very top of terrorist organisations. We said in the consultation paper Legislation against Terrorism that the offence was aimed at "the strategists"; indeed, the two men who have been convicted of the offence in Northern Ireland are so-called "Mr Bigs", which is not, I believe, an expression used very often in this place. But the offence can also be committed by those who direct the organisation's activities at other levels: the organisation's "middle management", so to speak. It is surely right that they, too, should be guilty of an offence.
The maximum sentence of life imprisonment provides an appropriate penalty for those at the very top of such organisations, while at the same time allowing a court to give a lower sentence for those lower down the scale. By deleting the expression "at any level", the noble Lord's amendment would appear to focus the offence more directly on the "Mr Bigs" at the expense of middle management. If that is not the intention, a defendant, however highly placed, might still argue that he had not "directed" the activities of the organisation because he was responsible to another director at a higher level. There would be arguments about whether, because he answered to a superior, he could really be said to be "directing".
We do not think that making such an amendment would send the right signals to terrorist organisations about society's abhorrence for their actions. It is fundamental to this Bill that terrorism of any kind is terrorism and must be treated as such. By the same token, directing terrorism at any level is directing terrorism and must be treated as such. I hope that
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explains to some extent why the phrase that the noble Lord complains about, "at any level", is to be found in the Bill.
10.30 p.m.
Lord Beaumont of Whitley: The noble Lord has explained the position to a certain extent, but I find the explanation not the slightest bit persuasive. It seems to me that to leave out those three words would not in any way detract from the purposes which the noble Lord so rightly tries to achieve. It would not send any negative signal, unless people read Hansard rather carefully and noted that the words had been removed from the original text. If those words are removed from the Bill, I do not believe that any bad signal would be sent out. Terrorists would be just as easily convicted. However, this is a probing amendment; it is not an important point. I certainly do not intend to bring it back at any other stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 56 agreed to.
[Amendment No. 142A not moved.]
Clause 57 [Possession for terrorist purposes]:
[Amendments Nos. 143 to 156 not moved.]
Clause 57 agreed to.
Clause 58 [Collection of information]:
[Amendments Nos. 157 to 159 not moved.]
Clause 58 agreed to.
Clauses 59 and 60 agreed to.
Clause 61 [Scotland]:
On Question, Whether Clause 61 shall stand part of the Bill?
Lord Cope of Berkeley: The Committee will have noted from the Marshalled List that I intend to oppose the Question that Clause 61 stand part of the Bill in order to press once again a point I have made at intervals during our debates concerning the extent of consultation with the Scottish Parliament on certain matters. I have elicited the information that the Government did not consult the Scottish Parliament but they did consult the Scottish Executive. That does not seem to me an acceptable substitute given that the Scottish Parliament has authority—given to it by this Chamber and this Parliament—over matters of Scottish law. I have received that explanation on several occasions and no doubt I shall hear it again. I do not intend to press the matter this evening.
Lord Bach: I am not entirely surprised that the noble Lord opposes the Question that Clause 61 stand part of the Bill. He was good enough to give notice of his intention. He may be pleasantly surprised to hear that I shall not dismiss his arguments in a sentence or two. I shall take my time over this.
This clause applies to Scotland the England-and-Wales incitement provision in Clause 59. The only difference is that Clause 61 reflects the position of the Scottish criminal law. In Scotland, the relevant

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offences are covered by the common law, whereas in England and Wales they are dealt with by common law and statute. Clause 61 therefore keeps the law throughout the UK on an even footing when dealing with incitement to commit terrorism.
I invite the noble Lord to consider Clause 60 which deals with exactly this situation as far as Northern Ireland is concerned. There is nothing special about Clause 61, except that it deals with Scotland.
As I explained when we were considering Clause 8 of the Bill last week, terrorism is a matter reserved to the Westminster Parliament under Head B8 to Schedule 5 to the Scotland Act 1998. Under the devolution settlement at Section 29 and, paragraph 2 of Schedule 4 to the Scotland Act, as the noble Lord will know, the Scottish Parliament is not competent to legislate on a reserved matter or to modify the law on reserved matters. Under Section 29 also, it is provided that where legislation of the Westminster Parliament deals with a reserved matter—in this case terrorism—the legislation may modify Scots criminal law as it applies to that reserved matter of terrorism.
That is precisely what Clause 61 does: it creates a new criminal offence and penalties, and thereafter leaves to the general criminal law of Scotland the process by which a person is tried and convicted for the offence. If I may set it out as clearly as I can for the noble Lord, as I am sure this will be the last time that he raises this matter in the course of the Bill's passage through the House—at least I hope so—the Government are clear, first, that Clause 61 deals with a reserved matter; secondly, that, as a result, the Scottish Parliament would not be competent to legislate on this matter; and, thirdly, that Clause 61—as does the rest of the Bill in its application to Scotland—makes provision in respect of Scots law that is specific to this subject matter of terrorism.
Lord Avebury: Why is it then that there is no equivalent in Clause 61 of the Criminal Damage Act 1971 in England or its equivalent in Northern Ireland? Apparently in Scotland a person can incite to commit damage to property, even if it endangers life, whereas he cannot do so either in England and Wales or Northern Ireland. That seems to be a difference between the jurisdictions which is not justified by any objective considerations.
Lord Bach: I hope to be able to answer the noble Lord before I sit down. Let me continue with what I was saying. The Committee will appreciate that if Clause 61 was not part of the Bill there would be a gap which it would not be within the competence of the Scottish Parliament to fill, even if the Scottish Parliament were otherwise minded to do so.
That is not to say that we will not continue to work together with the Scottish Executive on the details of how the provision in the Terrorism Bill will work in practice. Officials have been working very closely before introduction and at every stage of the passage of the Bill. Regular meetings and discussions have taken place. It is important that those responsible for
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policing and the criminal justice system in Scotland are fully aware of, and have been consulted on, the way that the provisions in the Bill will affect them.
The noble Lord, Lord Avebury, asks why we have a different definition for violence against property in Clause 59 to that contained in Clause 61. I believe that that is the purpose of his question. We have always said that the incitement provision its specifically focused on the most serious offences in this area which do not already—that is the key word—attract the incitement offence by virtue of the extra-territorial applications of existing legislation. Our intention in this provision, which essentially fills in gaps in UK law, is to outlaw the incitement here of very serious acts with a terrorist motive overseas. So, in relation to property crime, the relevant offence is to incite the endangering of life by damaging property. It is not a case of one definition of "terrorism" for here and a narrower one for abroad; it is the same definition for all acts, whether here or abroad. We are applying the definition in Clause 1 to specify existing offences, to ensure that incitement here to commit certain acts abroad—which, if committed here, would constitute one of those specified offences—will be caught. There is a difficult balance to be struck. We rightly cherish our long-held traditions of freedom of speech, and we only limit it in the most serious of circumstances.
We are very grateful to the noble Lord, Lord Cope, for having directed our minds towards this question of the effect that this legislation has on Scotland. He has quite rightly asked these questions on a number of occasions. I hope that the answer I have attempted to give at this last moment of today's Sitting may be of some help to him. We look forward to hearing what has to say.
Lord Cope of Berkeley: I hesitate to work too hard in the interests of Scotland, not least because those of your Lordships who come from England or Wales, or for that matter Northern Ireland, may not realise that the only chap Bonnie Prince Charlie beat in the course of the 1745 rebellion was General Sir John Cope—no relation of mine as far as I am aware!
Lord Bach: He was not perhaps the noble Lord's grandfather or some other such relation? As we have been talking about relations in general, I wonder whether the noble Lord is quite sure about that.
Lord Cope of Berkeley: He certainly was not my grandfather; it was 1745! But I cannot be entirely certain as to whether he was a more distant relation. I am not sure of all my relations that far back, but, as far as I know, he was no relation. The Scots, having defeated him, wrote a rude song and a pipe tune to match. It has been my experience in life that, whenever I am within range of a piper who discovers my name,

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he is likely to start pumping up his equipment. Thus I am not inclined to work too hard for the Scottish interest.
Lord Carter: Is the noble Lord aware that at this time of the evening the debate should be addressed to the question before the Committee?
Lord Cope of Berkeley: I did realise that. I also realised the confusion there would be if both the Scottish Parliament and ourselves were attempting to legislate in the same jurisdiction on these matters. It is certainly not my wish that we should get into a situation where to incite terrorism of a particular kind in one part of the United Kingdom was legal whereas in other parts it was illegal. Therefore, all those inciting
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terrorism went to one particular part of the United Kingdom to do it. That would be the effect if we did not carry Clause 61 as it stands now or something very like it, so I do not intend to pursue my opposition to Clause 61.
Clause 61 agreed to.
Clauses 62 to 64 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 seventeen minutes before eleven o'clock.