Terrorism Bill

HL Deb 23 May 2000 vol 613 cc728-62

8.38 p.m.

House again in Committee.

Clauses 42 and 43 agreed to.

Clause 44 [Authorisations]:

Lord Bach

moved 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 Marlesford

moved 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—

1. (a) if he is a United Kingdom citizen, provide the constable in uniform with his National Health Service number; or
2. (b) if he is not a United Kingdom citizen, provide the constable in uniform with—
1. (i) his passport details, or
2. (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 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 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.

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 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 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 Berkeley

moved 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.

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 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 "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 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 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 Bach

moved 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 Bach

moved 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—

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

moved 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.

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, 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 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.

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.

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 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.

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 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 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 Brighton

moved 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 Goodhart

moved 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 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 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 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 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.

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 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 Brighton

moved 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 Whitley

moved 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 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 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 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 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, 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 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.