HL Deb 03 December 2001 vol 629 cc669-96

8.43 p.m.

House again in Committee.

Schedule 5 [Pathogens and toxins]:

Baroness Finlay of Llandaff moved Amendment No. 143B: Page 106, line 38, leave out "Chlamydophila" and insert "Chlamydia The noble Baroness said: Amendment No. 143B to Schedule 5 is simply a question of taxonomy. Under an amendment agreed on 26th November in the other place, the organism, Chlamydia psittaci was rescheduled as Chlamydophila psittaci. I believe that that was based on information from a paper in the International Journal of Systemic Bacteriology, following the molecular genetics of the organism. However, that recommended renaming—the paper's authors are from the US—has not come into use in the UK and the organism is not currently known as Chlamyclophila psittaci in the Public Health Laboratory Service and NHS laboratories To avoid confusion it would seem sensible to use the name that is commonly used. I venture to suggest that perhaps rather than simply reverse the previous amendment another way to handle the matter may be to use both the new and the old names in the text to ensure that laboratories know that the organism under either name is the organism in Schedule 5. I beg to move.

The Countess of Mar

I have a feeling that the noble friend of the noble Lord, Lord Rooker, has passed the buck. I asked a question on the previous amendment about pigeons and this particular bacterium. I understand that every pigeon is infected with Chlamydia or Chlamydophila psittaci. I quote from Clause 59(4)(b) of Part 7 which states: anything which is infected with or otherwise carries any such substance". Is anything in that provision affected by the amendment we are discussing? I refer to every pigeon in Trafalgar Square. Is the Mayor of London required to report that? Is whoever is in charge of Railtrack required to report the fact when a dead pigeon which is infected with the bacterium is picked up?

Lord Rooker

I hope that I can satisfy both noble Baronesses. However, if I cannot do so, and there is any doubt about the matter we shall rectify the position.

As the noble Baroness, Lady Finlay of Llandaff, said, the amendment would reverse the government amendment that was agreed in the Commons. All I can do is explain how that came about in terms of the scientific advice on which we acted in proposing the amendment in the other place. The list of substances in Schedule 5 is known as the Australia Group list. I hope that I shall not be asked why it is known as the Australia Group list. I am sure that the noble Baroness knows why that is, but I do not.

When the provisions of the Bill were first discussed with the scientific community, one researcher contacted the Home Office to say that the list had recently been amended as a result of a scientific reclassification of certain types of bacteria. The result was that the entry we originally had in the Bill would have included not only the rather nasty bacterium which can cause psittacosis in humans as well as caged birds, but also a less frightening cousin whose worst known effect is to cause conjunctivitis in domestic cats. As we did not think that the threat from terrorists spreading feline conjunctivitis was a pressing one, it seemed to us that we would be justified in amending the list in Schedule 5 in order to focus on the bacterium which created a threat to human health and not impose unnecessary controls on researchers working on substances which were essentially harmless. There may still be debate on the matter in the scientific community. It is the kind of matter we must get right. I shall certainly take advice on the noble Baroness's suggestion.

On Second Reading—although I cannot find a reference to it in Hansard—someone mentioned that smallpox was not included in the list. However, I understand that it is, as smallpox is the variola virus. I am happy to put that point on the record. I do not know whether I have answered satisfactorily the noble Baroness but I am about to find out.

Baroness Finlay of Llandaff

I thank the Minister for his reply. I could discuss ribosomal RNA but I do not wish to detain the Committee any longer. I propose that the suggestion I made earlier is implemented; that is, to use both names in the schedule. The concentration of ribosomal RNA and one of the genes within it determines under which sub-type one classifies the organism. It is the same organism; it is simply a question of the name which is used. I should be cautious as regards having a name in the Bill which is not the name that is in current use by the Public Health Laboratory Service, which is the main public health laboratory service for this country. I believe that we should respect the names that it currently uses. If the Minister has accepted—

Lord Rooker

I speak before the noble Baroness withdraws the amendment, as I cannot speak to it after she has done so. I shall take advice on her suggestion and come back to her.

Baroness Finlay of Llandaff

I thank the Minister for his reply. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 5 agreed to.

Clause 60 [Duty to notify Secretary of State before keeping or using any dangerous substance]:

[Amendment No. 143AB not moved.]

Clause 60 agreed to.

Clause 61 [Power to require information about security of dangerous substances]:

[Amendment No. 143BA not moved.]

Clause 61 agreed to.

Clause 62 [Power to require information about persons with access to dangerous substances]:

[Amendment No. 143BB not moved.]

Lord Dixon-Smith moved Amendment No. 144: Page 31, line 17, after "may" insert "reasonably". The noble Lord said: This is a probing amendment. In this House we always have difficulties in relation to what is or is not "reasonable". Clause 62 provides that: A police officer of at least the rank of inspector may give to the occupier of any relevant premises"— that is, somewhere that holds these nasty materials— a notice requiring him to give the chief officer of police a list or. persons who have access, and so on. We have no difficulty with most of that until we reach Clause 62(7). That subsection states: Any list under this section must … identify the access which the person has, or is proposed to have … state the full name of that person, his date of birth, his address and his nationality". If we are dealing with counter-terrorism, there is no difficulty with any of that because we are dealing with individuals and, indeed, that information must be known.

However, paragraph (7)(c) states, contain such other matters (if any) as may be prescribed". The difficulty there which we have sought to resolve with this amendment by inserting the word "reasonably" is that "such other matters" might become unreasonable for some unfortunate reason. Such cases are not unknown because we are talking about human relations. For example, the head of a firm operating that type of business may have an argument on a Friday night with a local policeman of the rank of inspector or above. That may all sound highly improbable but, sadly, it is not unknown.

Therefore, we considered that it would be better if paragraph (c) included the word "reasonably" so that it read, contain such other matters … as may reasonably be prescribed". That would keep the matters relevant to the issue and not simply create an administrative burden which otherwise might become unreasonable. At the end of the day, while we have every obligation to do everything that we possibly can to contain the appalling problems which terrorism can create, we also have an obligation to ensure that we do not create burdens such that business cannot function effectively and profitably. If it does not function profitably, it will not function at all. I beg to move.

Lord Rooker

I hope that I shall be able to persuade the noble Lord, Lord Dixon-Smith, that his proposed amendment would not in practice provide any additional safeguards against the possibility that the police might ask for information about people with access to dangerous pathogens beyond what is reasonable.

As the noble Lord said, Clause 62 states that the police may seek the name, address, date of birth and nationality of such people. They may also ask for additional information which may be prescribed. If it were prescribed, it would appear in regulations under the negative procedure. Therefore, it would be for Parliament to decide whether any information which it is proposed that the police should be empowered to ask for about such people were reasonable or not. If it were not considered reasonable, the regulations would not pass. If it were possible that an unreasonable set of regulations could pass, their application could, of course, be challenged in the courts.

One other reason why we do not believe that we should agree to the amendment is that it would cast doubt on the validity of many other regulations where none should exist. A court might take a more limited view of what matters were reasonable than might the Secretary of State, who would have the benefit of advice from the police as to why they wanted additional information.

We have no current plans to bring forward any regulations under this subsection. The immediate question that comes to mind is: if we did have, what would it be? The answer is: information. Having taken advice during the day, I can tell the Committee that, if extra background information were required, we might, for example, seek details of the qualifications or, indeed, the place of training of the people working in the laboratories. However, we have no plans beyond those set out in the Bill. With that explanation, I hope that I have satisfied the noble Lord, Lord Dixon-Smith, and that he will withdraw his amendment.

Lord Elton

Before the noble Lord sits down, I believe that I heard him say that the reassurance that my noble friend sought was contained in the fact that any other requirement that was to be put on the list would have to be agreed through a statutory process. Can he show us where that requirement is set out in the Bill? It does not appear to be in this part, and I am not sufficiently familiar with the Bill to know where it is.

Lord Rooker

There is no way to prescribe other than by a statutory instrument. The police have powers on the face of the Bill, in primary legislation, under Clause 62(1). That measure has the force of law because it is set out in the Bill. If the list had to be added to, that would be defined in Clause 75, I believe. If something is prescribed, it is axiomatic that it is set out in regulations. The interpretation which is set out in Clause 75 provides a definition in line 19. It states, 'prescribed' means prescribed in regulations made by the Secretary of State". I hope that that answers the noble Lord, Lord Elton. The information for which the police can ask is clearly set out on the face of the Bill. The definition of "prescribed" clearly indicates that regulations have come before Parliament.

Lord Elton

I am most grateful. That is quite clear.

Lord Dixon-Smith

Like my noble friend Lord Elton, I am grateful to the Minister for his explanation. Unfortunately, I am not a government Minister and the noble Lord is. I hope that he will forgive me the irreverence, but I am less confident than he is that an unreasonable regulation under the negative procedure will never slip through the House. Not least of the problems that we have in relation to the Bill is the number of occasions on which it is dependent on regulations. We have constantly argued that the regulatory procedure suffers from the much greater disadvantage of inadequate supervision. That said, I have listened to what the Minister had to say and I shall study it. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 144 A not moved.]

Clause 62 agreed to.

Clauses 63 and 64 agreed to.

9 p.m.

Clause 65 [Denial of access to dangerous substances]:

Lord Dixon-Smith moved Amendment No. 145: Page 32, line 12, at end insert "or the security of any country or territory outside the United Kingdom The noble Lord said: This amendment deals with a rather more serious matter. Clause 65 refers to "access to dangerous substances", and states that the Secretary of State may give directions to the occupier of any relevant premises requiring him to secure that the person identified in the directions … is not to have access and so on.

Again we are dealing with the problems of people who might be terrorists, associated with terrorist organisations, or who have behaved suspiciously in the past.

Clause 65(3) states: The Secretary of State may not give the directions unless he believes that they arc necessary in the interests of national security". It is acknowledged and a fact of sad history that the United States is all too often a prime target for terrorist groups, particularly A1'Qaeda. That may continue to be so, and other countries may well become terrorist targets. We thought it desirable to add to the end of Clause 65(3) the words, or the security of any country or territory outside the United Kingdom". That would permit the Secretary of State to make such a prohibition if he was concerned that somebody who was associated with a terrorist organisation that was involved with terrorist activity which would not affect this country, but which might affect some other part of the world. I ask the Minister to consider the position carefully. The amendment would do nothing to endanger the fundamentals of the Bill but would enhance the power of the Secretary of State to deal with such situations and, more importantly, it would give encouragement to our friends and neighbours that we were concerned not only with our own interests but with theirs. I beg to move.

Lord Rooker

We have a great deal or sympathy for this amendment and were it not for what I am about to say, we would have accepted it. I hope that I can show why it is not necessary. The purpose behind it will be covered.

The events since 11th September have drawn attention to the international nature of terrorism and the terrorist networks. It is conceivable that there may be someone in this country who is intent on terrorist activity in another country but who poses no immediate terrorist threat here. In such circumstances, we would not expect the Secretary of State knowingly to allow that person to have access to substances that could be used to devastating effect by those intent on terror. That would not be in the interests of national security. Those who trade in terror pose a general risk to the security of the international community. The risk is a general one. Dangerous substances in the hands of one terrorist could well end up in the hands of others. Adding a specific reference to the security of other countries to the term "national security" would imply that the expression had more limited meaning in other statutes, which we must avoid.

I remind Members of the Committee of the words that were quoted last Thursday during our debates on Part 4 of the Bill on the case of Rehman which concerned the meaning of the phrase, the interests of national security in the Special Immigration Appeals Commission Act 1997, which came before the House on appeal earlier this year. In referring to the events of 11th September, the noble and learned Lord, Lord Hoffmann, said that they are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of Ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security".—[Official Report, 29/11/01; col. 495.] We should take it that the term "national security" in the context in which it is used in this Bill encompasses the concept of international security at the same time. That is the point behind the amendment, which is why we have sympathy with it. We want to avoid that specific use of words simply because of other Acts. The purpose behind the amendment is covered in the Bill.

Lord Dixon-Smith

I listened with interest to what the Minister said, for which I am grateful. Being a mere layman, I am not as confident as he is about the law and lawyers. I have found that one can ask for legal opinions until the one that one wants is received. That may sound cynical but it seems to be the position. I am willing to accept the Minister's assurance that national security includes international security. If it is the position that what Ministers say in the House has to be taken into account by a court of law, I am happy with that assurance.

Lord Donaldson of Lymington

Before the noble Lord sits down, perhaps I should say that while I understand that if one asks for enough legal opinions, one will get the one that one wants, that does not apply when one asks judges.

Will the Minister consider who told him that the words used in a later statute will alter the meaning of words used in an earlier one? That is a somewhat surprising proposition. I am very surprised that the addition of the words referred to in the amendment would imperil anything at all. They seem merely to make for clarity. A single judgment or speech by a judicial Member of the House is an unsure basis on which to base a view of the law. Do not think that I am prejudiced. I was entitled to sit in this House but I preferred to continue to sit as Master of the Rolls.

Lord Rooker

What I have just heard from the noble and learned Lord, Lord Donaldson, has stopped me saying what I was going to say, which was very supportive of judges. I shall take early steps to draw the remarks of the noble and learned Lord, Lord Donaldson, to my right honourable friend the Home Secretary as there might be some doubt about the matter. At the moment, we are resting on the fact that the words in the interests of national security can be taken to apply to international security.

Lord Dixon-Smith

I am even more grateful to the noble and learned Lord, Lord Donaldson of Lymington, for reasons that I do not need to explain. He has helped to clarify the situation. We may perhaps need to return to this matter on Report. I do not alter what I was in the process of saying. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 65 agreed to.

Clause 66 agreed to.

Clause 67 [Search warrants]:

Lord Bassam of Brighton moved Amendment No. 145A: Page 32, line 31, after "IF' insert ", in England and Wales or Northern Ireland,". The noble Lord said: The two amendments in the name of my noble friend Lord Rooker pick up the point underlying Amendments Nos. 146, 146A and 146B, which appear in the name of the noble Lord, Lord Dixon-Smith, and his colleagues. It is fair to pay some tribute to the noble Lord for alerting us to the sense of making the change for Scotland to Clause 67. Indeed, I invite the Committee to accept Amendment No. 146B, which is in the name of the noble Lord, Lord Dixon-Smith. He has scored a direct hit with that amendment.

At present Clause 67(1) provides for a constable applying for a search warrant to a sheriff or justice of the peace—that is the effect of subsection (4). There is nothing intrinsically inappropriate in that and there are instances on the statute book and at common law where constables do apply in Scotland for search warrants. However, the more usual format now, apparently, in circumstances such as those contemplated in Clause 67, is for the Procurator Fiscal to apply to the sheriff for a warrant authorising a constable to enter premises and search for, seize and retain dangerous substances. That is the approach taken, for example, for comparable provisions in the Terrorism Act 2000 and in the Criminal Procedure (Scotland) Act 1995.

Amendment No. 146AA achieves that for Scotland. Amendment No. 146B removes subsection (4), which will become redundant, and Amendment No. 145A ensures that the current provisions in subsection (1) continue to apply to England, Wales and Northern Ireland.

I anticipate that the government amendments will meet precisely the point that the noble Lord, Lord Dixon-Smith, and his colleagues had intended in their amendments to Clause 67. I hope that in view of that, he will feel able to withdraw Amendments Nos. 146 and 146A and support the government amendments. I beg to move.

The Duke of Montrose

I want to say a few words about the amendments standing in the name of my noble friend Lord Dixon-Smith. Members of the Committee do not need reminding of the importance of constructing the legislation in a way that is compatible with the practice of Scottish law. The Minister took on the meat and substance of the amendments that were tabled by my noble friend, and I am grateful to hear that he is prepared to accept Amendment No. 146B—without that, there would have been an untidy element in the Bill. I have similar worries about the suitability to Scotland of Clauses 112 and 113. I mention that now but may return to it at a later date. We will not press our amendments.

On Question, amendment agreed to.

[Amendments No. 146 and 146A not moved.]

Lord Bassam of Brighton moved Amendment No. 146AA: Page 32, line 39, at end insert— (1A) If, in Scotland, on an application made by the procurator fiscal the sheriff is satisfied as mentioned in subsection (1), he may issue a warrant authorising a constable to enter the premises, if necessary by force, and to search them. On Question, amendment agreed to.

Lord Dixon-Smith moved Amendment No. 146B: Page 33, line 10. leave out subsection (4).

On Question, amendment agreed to.

Clause 67, as amended, agreed to.

Clause 68 [Offences]:

Lord Hylton moved Amendment No. 146C: Page 33, line 21, leave out "five" and insert "three". The noble Lord said: I accept that some of the penalties for offences that are connected with international terrorism may need to be strengthened over and above the levels in the Terrorism Act 2000 or in other existing laws. I also understand that the Government may have felt it necessary to send a strong signal to the courts about the seriousness of terrorist offences.

I invite the Committee to consider whether or not the Government may have overdone things by specifying penalties that are three times more severe than at present. That is the case in Clause 116 and possibly elsewhere. If the Government's position is that these offences are completely new, are they satisfied that they have selected the appropriate level of punishment? Amendment No. 146C refers to imprisonment. Amendments Nos. 151) and I 59C, also in my name, refer to fines.

In regard to prisons, your Lordships know that some 23 local gaols are now overcrowded by 5,000 prisoners. That makes it difficult or almost impossible in some cases to organise constructive regimes. Therefore, on general penal grounds there are strong reasons not to increase the length of sentences, but to use fines and other punishments in combination to reduce the length of imprisonment. I look forward to hearing the views of the Government. I beg to move.

9.15 p.m.

Lord Rooker

I understand the position taken by the noble Lord, Lord Hylton, but we cannot accept his amendment. The offences include failure to notify the Secretary of State that dangerous substances are being held or used, failure to notify the Secretary of State about persons who have access to those substances, which are listed, or failure to comply with reasonable security instructions from the police.

This is part of the process of changing gear and upping our game. Therefore, we need to send out a strong signal that these are potentially serious offences which could put the lives of many people at risk. We are talking of a maximum penalty of five ears or a fine, although it could be both, but that would be a matter for the courts to judge on the merits of the individual case. We believe that we should give them a greater maximum with which to work. I hope that on reflection the noble Lord will withdraw his amendment.

Lord Hylton

I take note of what the Minister has said about the seriousness of the offences. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 68 agreed to.

Clauses 69 to 71 agreed to.

Schedule 6 agreed to.

Clauses 72 to 76 agreed to.

[Amendment No. 146D not moved.]

Clause 77 agreed to.

Clause 78 [Regulation of security of civil nuclear industry]:

Baroness Miller of Hendon moved Amendment No. 147: Page 38, line 43, leave out paragraph (d). The noble Baroness said: In moving to Amendment No. 147, I shall speak also to Amendment No. 147A and to Amendment No. 147B, which is consequential on Amendment No. 147A. Amendment No. 147 can be explained simply and briefly. It seeks to leave out line 43 of Clause 78 which deals with the regulation of security of the civil nuclear industry. Line 43 permits the regulations to, create summary offences or offences triable either way". We believe that to create criminal offences is an improper use of regulations. If criminal offences are to be created. they should be dealt with in primary legislation, which would provide the opportunity for proper scrutiny.

The offences in this clause are rightly considered serious; for example, those that are triable either way can attract up to two years' imprisonment or a fine not exceeding the statutory maximum, or both. The formation of such offences should be subjected to proper democratic examination. The Secretary of State has already been criticised for not allowing proper time for scrutinising this important piece of legislation and he certainly should not seek to compound that problem by using secondary legislation for matters that affect the liberty of people in this country.

I turn to Amendment No. 147A, which is a probing amendment. It seeks to clarify whether the reference in this clause to offences that are "triable either way" includes solemn proceedings in Scotland. In Scotland the accused person has no right to elect the forum in which the proceedings will be raised. That is determined by the prosecutor.

The Law Society of Scotland is aware that a reference to offences triable either way can be to the accused's right to elect trial by jury in England and Wales. It is unclear from the Bill whether offences under the solemn procedure could be created by virtue of these regulations. That is why we have tabled this probing amendment in order to clarify the position. Amendment No. 147B is consequential. I beg to move.

The Deputy Chairman of Committees (Lord Ampthill)

I must remind the Committee that if this amendment is agreed to I cannot call Amendment No. 147A.

Lord Elton

Subject to anything the Minister is about to say which might change my mind, I endorse every word that my noble friend said about the principal amendment in this group. I do not believe that it is for Ministers to make orders creating new offences which then go through this House as secondary legislation. My noble friend has said it very well, but I wish that I had said it, too.

Lord Sainsbury of Turville

I propose to take together proposed Amendments Nos. 147, 147A and 147B, all of which deal with offences under the regulations to be made on the security of civil nuclear sites.

Clause 78 provides the power to make regulations on security in the civil nuclear industry. The aim of these regulations is to provide a strengthened and modernised regulatory regime to ensure the security of nuclear sites and nuclear material. This provides essential protection against risks from terrorists and proliferators.

To be effective, any regulatory regime needs to incorporate sanctions if the regime is breached. The effect of Amendment No. 147 is to remove the power to make breach of the regulations an offence. However, such a power is essential and must remain part of this clause.

Concern has been raised that we are here talking of power taken to create offences by secondary legislation through the negative resolution procedure. We consider this sufficient since the proposed offences and their associated penalties in subsection (3) of the clause are broadly comparable to those which already apply in the Health and Safety at Work etc. Act for breaches of regulations made under that Act whose provisions on offences may be imported into the regulations under subsection (2)(g) as described elsewhere. They are therefore already established and are not novel.

Furthermore, the Select Committee on Delegated Powers, which has considered the power to create secondary legislation included in this Bill, has made no comment on this proposed power in its report

Amendments Nos. 147A and 147B concern the type of offences that can be created under the regulations to be made under this clause on security in the civil nuclear industry. At present, Clause 78 provides that regulations may create two categories of offence, namely, summary offences and offences triable either way. The noble Baroness has proposed adding to these a third category, a solemn offence which, in Scots law, is tried on indictment only.

The Government do not see any need to create offences under the regulations that would be triable only on indictment. As I have explained, it is important to have effective sanctions for breach of the regulations, but we are confident that the existing offences in this clause fully provide for that.

I am advised that it would be rare to create a new crime which could be tried only on indictment. The normal approach is to specify, as this clause does, that a crime is triable as a summary offence or either way. Where an offence can be tried either way, it is left open to the prosecutor to decide, in all the circumstances of each individual case, what the appropriate procedure would he. To accept this amendment would go against the usual approach. In the light of these explanations I hope that the noble Baroness will not press the amendments.

Baroness Miller of Hendon

I listened very carefully to what the Minister said. He will not be surprised to learn that I do not agree with him. I feel very passionately that criminal offences should not be made by secondary legislation. I understand what the Minister said about the Select Committee looking at the matter and being unable to find anything wrong. It would be totally impertinent of me, a mere Front Bencher, to say that I do not believe that to be correct. In fact I do not think that it is correct. However, the Select Committee has made its decision. I certainly would not dream of testing the opinion of the Committee. Looking around I do not see any of my noble friends here. Having said that, I shall read carefully what the Minister has said. My first thought is that I do not agree with it. This is a serious matter that should be dealt with by proper primary legislation.

With regard to the Minister's comments on Amendment No. 147A, I did not propose that we should add the words "solemn proceedings". I said that the clause is not clear. I simply wanted to probe whether or riot the provisions would apply in Scotland as they do in England and Wales. If I did not make that clear to the noble Lord, I apologise. Perhaps I was not as clear as I should have liked. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 147A and 147B not moved.]

Lord Sainsbury of Turville moved Amendment No. 147BA: Page 39, line 9, leave out from "way" to "or" in line 10 and insert "—

  1. (i) on conviction on indictment, with imprisonment for a term not exceeding two years or a fine (or both); and
  2. (ii) on summary conviction, with imprisonment for a term not exceeding six months"
The noble Lord said: This group of amendments proposes three minor technical amendments to clauses in Part 8 of the Bill. These are needed to rectify minor drafting errors or to ensure consistency in the wording of the Bill as a whole. They have no implications for the policy intentions underlying the Bill.

The first proposed amendment relates to Clause 78. It makes clear the maximum penalties which may apply to offences created under the regulations that are triable either way. The maximum penalties will be different depending on whether the offences are tried in the magistrates' court or in the Crown Court.

The second proposed amendment concerns Clause 80. It ensures consistency in the language used in the provisions regarding extraterritorial jurisdiction in the civil nuclear security clauses and in similar clauses elsewhere in the Bill.

The third proposed amendment also concerns Clause 80. It corrects a small drafting error that occurred during the drafting of the Bill.

I am sorry to have to trouble Members of the Committee with these matters. Nevertheless, in the light of this explanation I hope that these amendments can be accepted.

On Question, amendment agreed to.

Clause 78, as amended, agreed to.

Clause 79 agreed to.

Clause 80 [Prohibition of disclosures in relation to nuclear security]:

Lord Sainsbury of Turville moved Amendments Nos. 147C and 147D: Page 40, line 32, after "Kingdom" insert ", but only if they are done Page 40, line 37, leave out from "in" to end of line 38 and insert "subsection (5) affects any criminal liability arising otherwise than under that subsection On Question, amendments agreed to.

On Question, Whether Clause 80, as amended, shall stand part of the Bill?

Lord McNally

I want to be brief, to read something into the record and to get a ministerial response to a point that needs to be put and responded to. Clause 80 is headed "Prohibition of disclosures in relation to nuclear security". Earlier I made it clear that from these Benches we fully accept that there is a threat to the nuclear industry from terrorism with the potential use of nuclear technology for terrorist purposes. We need to make sure both in this clause and right through the Bill that we get the right balance between meeting that threat properly and with a sense of urgency, and protecting civil liberties and legitimate debate.

I shall read into the record a paragraph from a letter sent by Greenpeace to Members of another place which puts succinctly the argument about Clause 80. It states: It is of great concern to us that this Bill represents an unwarranted and unreasonable prohibition of the public's access to important information. With particular reference to Part 8—'Security of. Nuclear Industry'—it appears that the Bill will act to prohibit the legitimate disclosure of information regarding the Nuclear Industry, nuclear waste, and the transport of nuclear material. This Bill is likely to result in the criminalisation of groups and individuals that legitimately oppose the Nuclear industry. It will also prevent communities and individuals from being able to make informed decisions on how the Nuclear Industry affects their lives". That is the charge which Greenpeace makes and it is the dilemma which faces us throughout. Are Ministers convinced, certainly as regards Clause 80, that they have struck the right balance between protecting our nuclear industry from terrorist threat and allowing the legitimate debate which depends on access to information about the role which the nuclear industry should play in our country.

9.30 p.m.

Lord Elton

As the Minister is not immediately rising to his feet, perhaps I may raise a more minor matter—I should have done so anyway—and one with which the Committee may be familiar. We have again the term "a United Kingdom person". I know what a United Kingdom national is; I know what a United Kingdom citizen is; and I know what a United Kingdom resident is. Is this a new term and a different interpretation? I do not doubt that if the Minister is in difficulty the noble and learned Lord, Lord Falconer, will he able to help him. It is not a phrase with which I am familiar.

Lord Hylton

In support of what was said by the noble Lord, Lord McNally, it seems to me that there is some danger in connection, for example, with plants such as Sellafield and the long drawn-out controversy over MOX fuel. All have aroused fears, apprehensions and arguments in neighbouring countries, such as the Republic of Ireland. They may therefore be said to have international implications for us. In that context, I hope that there will be no suppression of reasonable and peaceful information.

Lord Donaldson of Lymington

I came across the answer to the noble Lord's question while browsing through the Bill. The expression "a United Kingdom person" struck me, as it struck the noble Lord, as extraordinary. I am sure that the Minister is now being told where it appears. If one looked outside the clause where I met it, one would discover that one got there by steps; namely, that a United Kingdom person was defined as a British national and so forth. One has to lift one's eyes a little to see where the strange expression came from.

Lord Sainsbury of Turville

The noble Lord, Lord McNally, questioned the justification for the clause. Perhaps I may deal with his concerns. There clearly is a balance to be drawn between the protection of sensitive information and people's legitimate comments and queries about the nuclear industry.

There is a need to strengthen the law in order to ensure full protection for sensitive information on the security of nuclear sites and nuclear material. While companies are required to protect that information under the nuclear security regulatory regime, those obligations apply only to companies and not to individuals.

It is important to ensure that there are fully effective sanctions against individuals. The consequences of illegitimate disclosure of sensitive information on the security of nuclear sites and material could be highly damaging and this strengthening of the law is essential.

Perhaps I may deal with the area of most sensitivity to organisations such as Greenpeace; namely, the consideration of the impact of the clause on the disclosure of information relating to the transport of nuclear material. This is one of its major concerns. To ensure the security of nuclear material in the course of transport it is essential to protect detailed information on routes, time schedules and the nature of the material being transported until the movements begin so that no forewarning is provided to potential attackers. Furthermore, the recommendations of the International Atomic Energy Agency—the relevant United Nations body—on the physical protection of nuclear material, which underpins the UK nuclear security regulatory system, include this requirement. The clause would prohibit only the intentional or reckless disclosure of information which could prejudice security and provides essential protection of nuclear material in the course of transport.

I make two further points. First, an offence would be committed only if there was a deliberate or reckless disclosure of information that could prejudice security. Whether an offence has been committed will depend on the facts of the case which will be for the courts to assess. Secondly, a great deal of information on nuclear transport has no implications for security. Information collected through observation from public places is essentially public information and is very unlikely to be able to prejudice security. The same applies to disclosure of information that is already in the public domain. Dissemination of that kind of information is highly unlikely to fall within this offence. I hope that that explanation satisfies the noble Lord's concern.

There have been comments during the debate about whether particular measures are necessary to fight terrorism. I believe that after the events of September 11th most people in this country do not want advance notice to be given on the movement of nuclear material around the country and the reckless disclosure of such information should be discouraged. It is on that basis that this clause is put forward.

A question was asked about what "United Kingdom person" means. That is defined in Clause 82(2): In this Part 'United Kingdom person' means a United Kingdom national, a Scottish partnership or a body incorporated under the law of any part of the United Kingdom".

Lord Dixon-Smith

Before the noble Lord sits down, I understand "United Kingdom national", but does that definition refer to someone who lives in the United Kingdom but who is not a UK citizen? I believe that such a person should be covered by the provision.

Lord Sainsbury of Turville

In subsection (3) it is provided: For this purpose a United Kingdom national is an individual who is—

  1. (a) a British citizen, a British Dependent Territories citizen, a British National (Overseas) or British Overseas citizen;
  2. (b) a person who under the British Nationality Act 1981 … is a British subject; or
  3. (c) a British protected person within the meaning of that Act".

Lord Elton

I presume that the last part includes citizens of Northern Ireland, which is not part of Great Britain.

Lord Donaldson of Lymington

Do not citizens of Northern Ireland carry British passports?

Lord Hylton

Northern Ireland is part of the United Kingdom.

Lord Sainsbury of Turville

A British citizen in this context would include someone from Northern Ireland.

Lord Dixon-Smith

We shall consider whether an amendment is required to include people who are normally resident in the United Kingdom but are not UK citizens.

Lord Sainsbury of Turville

I shall check whether the explanation that I have given is correct. If not, I shall write to the noble Lord and correct the mistake.

Clause 80, as amended, agreed to.

Clause 81 [Prohibition of disclosures of uranium enrichment technology]:

Lord McNally moved Amendment No. 148: Page 40, line 41. leave out paragraph (a). The noble Lord said: We seek to leave out paragraph (a) of subsection (1) of Clause 81. Again, this is related to the continuing national debate as regards the future of the nuclear industry. Subsection 11)(a) refers to the "enrichment of uranium". Greenpeace has stated that highly enriched uranium can be used in nuclear weapons. However, enriched uranium, covered in this clause, is the material used in the normal nuclear fuel employed in power stations. If subsection (1)(a) remains unamended, it would be impossible to discuss the process by which nuclear fuel is made, where it is made, or possibly the potential problems of using it.

In tabling the amendment, we seek to establish whether subsection (1)(a) constitutes a form of gagging clause" on any legitimate discussion of the peaceful uses of nuclear energy. I beg to move.

Lord Sainsbury of Turville

With regard to Amendment No. 148. perhaps I may explain briefly the purpose of Clause 81. It provides the power to make regulations prohibiting the disclosure of uranium enrichment technology and to set out exceptions to the prohibitions. The clause is necessary because this technology is highly attractive to proliferators. While it is used in the civil nuclear industry to enrich uranium for use in fuel for power generation, it can be easily adapted for use in developing nuclear weapons.

The case for rigorously protecting the technology is therefore self-evident. Companies in the civil nuclear industry are already required to apply stringent controls under the civil nuclear security regulatory regime, but those requirements will not apply to individuals. We propose to make regulations to fill that gap.

However, when we draw up the regulations we shall ensure that we balance robust protection of this technology with the need not to prevent its communication in legitimate circumstances and the regulations will provide for appropriate defences. They will be subject to public consultation and, most important, they will require the consent of both Houses under the affirmative resolution procedure.

I hope that, with those assurances, the noble Lord will be willing to withdraw Amendment No. 148, which would rob the clause of most of its effect.

Lord McNally

We seem to have decoupled Amendment No. 148 from Amendment No. 149 in the groupings list. However, I am happy to withdraw Amendment No. 148.

Amendment, by leave, withdrawn.

[Amendment No. 148A not moved.]

Clause 81 agreed to.

Clause 82 [Part 8.L: supplementary]:

[Amendment No. 149 not moved.]

Clause 82 agreed to.

[Amendment No. 149A not moved.]

Clause 83 agreed to.

Clause 84 [Trespass on aerodrome: penalty]:

Lord Hylton moved Amendment No. 150: Page 42, line 34, leave out "3" and insert "2 The noble Lord said: The amendment provides an opportunity for me to ask the Minister whether he considers that the same considerations should apply to fines as to imprisonment. I beg to move.

9.45 p.m.

The Minister of State, Department for Transport, Local Government and the Regions (Lord Falconer of Thoroton)

The question went beyond me. Do I take the same provisions to apply to fines as to imprisonment? The reason we are increasing the level of fines from what it was prior to the passing of the Act to what is proposed in the Bill is that we do not think a level 1 fine adequately conveys the concerns that we have on the issue; it would not be proportionate to the offence; and it would be unlikely to act as a deterrent.

Trespassing on an aerodrome would involve a deliberate attempt to circumvent access controls and has safety and security implications. The proposed penalty of level 3 on the standard scale, currently £1,000—which is the effect of the change in the law proposed in the Bill—reflects the view that the offence is not as serious as unauthorised access in a restricted zone or on an aircraft, both of which attract a level 5 fine, currently £5,000.

The level 3 fine contained in the Bill would, we believe, be proportionate to the offence and the aim that it seeks to realise, the prevention of possible terrorism. It would act as a deterrent and would be consistent with the penalty for similar offences under Article 122 of the Air Navigation Order 2000—for example, endangering the safety of an aircraft, person or property, and drunkenness on board an aircraft.

I am not sure whether that answers the noble Lord's question, but it explains why we are increasing the fine from level 1 to level 3 for the specified offence. I hope that I have adequately answered the question. But if not, if the noble Lord asks a slightly longer question I shall try again.

Lord Hylton

I am grateful to the noble and learned Lord for that reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 84 agreed to.

Clause 85 [Removal of an intruder]:

Viscount Astor moved Amendment No. 150A: Page 43, line 1, after "person" insert "(authorised in writing) The noble Viscount said: In moving. Amendment No. 150A, I shall speak also to Amendments Nos. 150B to 150G.

Amendments Nos. 150A and 150B seek to insert in Clause 85 the words "authorised in writing" after the words, the manager of an aerodrome or a person acting on his behalf". I have looked at the Aviation and Maritime Security Act 1990. Section 21C of that Act creates an offence that a person shall not go on to an aerodrome and so on without the permission of the manager or someone acting on his behalf. The difference is that under the 1990 Act there is no power for anyone to use reasonable force. If we are going to give the power for someone to use reasonable force when acting on behalf of the manager of an aerodrome, that should be authorised in writing by someone rather than that person just being given a nod. I shall be interested in what the Minister has to say about that.

Moving to Clause 86, subsection (2) states that regulations "may" provide. We believe that regulations "should" provide, and therefore Amendment No. 150C seeks to remove the word "may" and insert the word "shall".

Amendment No. 150D seeks to remove paragraph (c) from subsection (3), which states that the regulations may "create a criminal offence". My purpose is to discover from the noble and learned Lord—I am sure that he will be able to tell me where this is in the Bill—whether the power to create a criminal offence under these regulations refers specifically to this clause or goes wider. Where do I find anything which can restrict that power to create a criminal offence? I am sure that it is in the Bill in some obvious place, but I should be grateful if the noble and learned Lord would point it out for me.

Paragraph (g) of subsection (3) states that the Secretary of State "may", make provision about removal from the list (which may include provision for appeal)". If regulations are laid, it is important that there should be a provision for appeal. Therefore, Amendment No. 150E seeks to ensure that a provision for appeal "shall" be included. Amendment No. 150F seeks to delete from paragraph (i), relating to the conferring of functions on the Secretary of State, the words, or on a specified person". I did not know quite what was meant by that reference. The definition seems rather wide. What do the Government mean? Who else could come under that provision? It seemed to me that it should be restricted to the Secretary of State.

My final amendment in this group is purely a probing amendment. Surely the regulations would fall automatically under a court, so there is no need to include the words, confer jurisdiction on a court". I should be grateful for the noble and learned Lord's response. I beg to move.

Lord Rotherwick

I support my noble friend and have added my name to the amendment. In regard to Amendments Nos. 150A and 150B, I am concerned that the person referred to should be authorised in writing. Let us take the example of a police constable who makes an arrest. He does so with a warrant card, which he can show if the person asks the reason for his arrest. Interestingly, a policeman is not allowed to enter this Chamber before changing out of his uniform, his epaulettes, and his helmet or hat. He has no authority in this Chamber. If he were to attempt to arrest someone and the person queried his action, he would have no authority.

It seems sensible that if someone is doing something wrong and a person approaches him and says, "You are to come this way", and he questions that, the person approaching him must show some kind of authority. It seems sensible that he should have some form of authority, even if it is only a written authority.

Lord Falconer of Thoroton

The first two amendments tabled by the noble Viscount relate to Clause 85, dealing with the removal of an intruder. The Bill states: A constable, the manager of an aerodrome or a person acting on his behalf may use reasonable force to remove a person who fails to comply with a request under subsection (1)(b)", of the Aviation Security Act 1982. A request to leave, when not complied with, can then be dealt with by the constable or by someone acting on his behalf, using reasonable force to remove the person.

What the noble Viscount, Lord Astor, seeks—and what the noble Lord, Lord Rotherwick, suggested in support—is that the person who helps the constable or the manager of an aerodrome or who is acting on his behalf needs to be authorised to do so in writing. No limit is suggested on the number of persons who could be authorised in writing. So such written authority could plainly be given to all employees.

It is clear that an aerodrome manager or aircraft operator must have the power to remove unauthorised persons from their property. It is also right, given the nature of the business and of this particular power, that they should be able to remove such persons quickly.

To limit those authorised would be counter to those objectives. And to require written authority to be given to all appropriate staff would simply be an unnecessary bureaucratic exercise. One would end up with the need for speed, which would not necessarily be complied with if the authorisation had to be in writing. Equally, in order to comply with the provisions, an aerodrome manager could authorise all the staff to have that authority so as to comply with the proposed amendment. Yet that would simply be an unnecessary bureaucratic exercise.

I remind the Committee that the wording of the Bill is consistent with the equivalent provisions in the Channel Tunnel (Security) Order 1994 and the Aviation and Maritime Act 1990 in respect of the Channel Tunnel and maritime industries respectively. So, although this is a probing amendment, if one thinks about it, it is not a sensible one.

Viscount Astor

Before the noble and learned Lord leaves that point, does he accept that, as the Bill is drafted, someone acting on a person's behalf need not necessarily he a member of that person's staff? He could authorise anyone to act on his behalf whether or not an employee.

Lord Falconer of Thoroton

Indeed, the wording of the legislation is in that exact form. In order to be prepared, he would simply authorise all his employees on the basis that they might be the class or category most likely to be authorised. I am sure that the noble Viscount has in mind a practical rather than a bureaucratic provision.

Earl Attlee

Does the clause not go further than authorising? There is no requirement for authority. I could weigh in and help the manager of an aerodrome because I am acting on behalf of the manager. I would not necessarily be authorised. There need be no record of it.

Lord Falconer of Thoroton

I have no doubt that the provision is a requirement. It is giving constables, managers of aerodromes or persons acting on their behalf specific powers. The noble Earl would not be acting pursuant to that power if he simply weighed in, as he said. He would not have, therefore, the protection of the statute.

The remaining amendments relate to the establishment and maintenance by regulation of a list or lists of companies approved by the Secretary of State to provide security services to the aviation industry. Amendment No. 150C replaces the word "may" with "shall" and obliges the person to produce the list. It is likely that such lists will be needed but details will need to be considered carefully before a final decision is made. That consideration would need to include full regulatory impact assessments. For that reason, we would not want the clause to be worded in such a way as to require the Secretary of State to maintain such lists.

With one exception, to which I shall come in a moment, the other amendments would dilute the effectiveness of the clause. Amendment No. 150D would mean that regulations could not create an offence of falsely claiming to be a listed person, as provided for in Clause 88 of the Bill, in respect of air cargo agents. That is the purpose of the provision and its omission would clearly be a serious weakness.

The noble Viscount, Lord Astor, asked in effect one question: why would the offence be restricted to matters referred to in Clause 86? New Section 20A(2) states: Regulations may provide for the Secretary of State to maintain a list of persons who are approved by him for the provision of a particular aviation security service". New subsection (3) refers to "the regulations". That is a reference to the regulations in the previous subsection. Therefore the criminal offence could be only in the context of regulations passed for the purpose defined in new Section 20A(2).

We regard Amendment No. 150E as eminently sensible and entirely in line with our intention to provide for a right of appeal in the event of delisting. We shall accept Amendment No. 150E. I urge the noble Viscount, Lord Astor, to move that amendment and we shall agree to it. I congratulate him on bringing forward the amendment.

Amendment No. 150F limits the power in regulations to conferring functions only on the Secretary of State. The noble Viscount does not want there to be anyone else. With respect, we might well need to appoint an independent person to hear an appeal against delisting. If the Secretary of State delisted someone, it would be sensible for there to be an independent person to hear such an appeal. This power would enable such an appointment to be made. We think that that is sensible.

Amendment No. 150G is related to Amendment No. 150D. The power would permit the granting of a forum to an aggrieved party other than judicial review and would therefore seem to us to be desirable.

In the light of what I have said, I hope that the noble Viscount will be willing to withdraw the amendment and will not move Amendments Nos. 150B, C, D, F and G, but that he will be persuaded to move Amendment No. 150E.

10 p.m.

Viscount Astor

I am grateful to the noble and learned Lord for his reply. I think that this is the first time that I have ever received a compliment from him in the many debates that we have had on transport matters. Recently, I have received some far from complimentary responses from him, so I am enormously grateful to him and I shall do as he asks.

I hope that the noble and learned Lord saw the point of our first two amendments. We were concerned to probe the Government's understanding of who could act on behalf of an authorised person. This is the first time that a power to use reasonable force has been granted. No such power is included in the Aviation and Maritime Security Act 1990, although, as the noble and learned Lord said, there is such a provision for the Channel Tunnel.

The noble and learned Lord has given a clear response to my other amendments, for which I am enormously grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 150B not moved.]

Clause 85 agreed to.

Clause 86 [Aviation security services]:

[Amendments Nos. 150C and 150D not moved.]

Viscount Astor moved Amendment No. 150E: Page 43, line 35, leave out "(which may include provision for appeal)" and insert "which shall include provision for appeal On Question, amendment agreed to.

[Amendments Nos. 150F and 150G not moved.]

Clause 86, as amended, agreed to.

Clause 87 [Detention of aircraft]:

Viscount Astor moved Amendment No. 151: Page 44, line 30, leave out "is of the opinion'' and insert "ha reasonable grounds to believe The noble Viscount said: Detention of an aircraft is a fairly drastic action, as it could cause considerable financial loss to the airline involved. The power to do so is clearly necessary in the light of recent events, but in view of the serious impact that its exercise can have, the power should be used only when there are reasonable grounds to believe that there is a threat to safety. Mere opinion is not enough.

Amendments Nos. 151A and 151B are also in this group. They go back to the Aviation Security Act 1982, into which the clause will add a new Section 20B. Clause 20(4) of that Act says: The powers conferred by subsection (3) above shall not include a power for an authorised person to use force for the purpose of entering an aircraft, building or works or entering upon any land". The Bill creates a power for an authorised person to do that. I have no problem with that. An authorised person should have the power to do that. However, I am concerned by the provision in subsection (3)(b) for that authorised person to, arrange for another person to enter the aircraft and in paragraph (e) to, authorise the use of reasonable force by another person". What is the Government's intention? I have no problem with giving an authorised person the power to use force, which they have not had before, but the Government have gone a long step further than that. That power must be defined or limited to a group of people who are authorised by the authorised person on a temporary basis. The idea that you could have another person enter and authorise reasonable force after that arrangement does seem to have the danger of giving considerable powers without any checks and balances.

This is largely a probing amendment and I shall listen carefully to the noble and learned Lord's response. I beg to move.

Lord Falconer of Thoroton

I am grateful to the noble Lord for providing an opportunity to explain this important provision in the Bill.

The authorised persons referred to in the clause are highly trained and competent aviation security inspectors employed by the department. The power to give a detention direction would be exercised only in extreme circumstances, for example, where, in the professional judgment of an inspector, security had been so seriously compromised or a threat had been received of a sufficiently serious nature that detention of an aircraft or a class of aircraft was the only practicable option in order to prevent a potential terrorist attack.

The first amendment, which the noble Viscount acknowledged was probing, seeks to change the "opinion" provision to a "reasonable grounds" provision. An opinion involves making a judgment; it allows an individual to form a view on such reasons and grounds as seem appropriate. It is an estimation. This involves situations such as those where a threat has been made but cannot be substantiated as a fact; for example, whether a bomb really is on board an aircraft at a specific airport. It may be possible to determine this only after the aircraft has been detained for a thorough search.

The need for reasonable grounds involves actual knowledge of relevant facts which provide grounds for a relevant belief established by evidence. The amendment would seem to be based on the premise that opinion gives the inspector too wide a margin of discretion and that there is no need for his decision to be reasonable. However, the aircraft operator is protected by the available appeal mechanism and by judicial review. We believe that the safeguards within the clause and in public law therefore make the amendment unnecessary.

Furthermore, Section 18 of the Aviation Security Act 1982 deals with the service of enforcement notices when an inspector is of the opinion that there has been a failure to comply with the relevant direction. The new proposed power for detention of aircraft via direction mirrors this provision. Consistency would demand that similar wording is used unless a contrary argument exists.

As to the second series of points about arranging for other people to do particular things, I am sure that the noble Viscount will agree that, having taken the difficult decision to detain an aircraft, an authorised person needs to be able to call upon any help he may need, either to satisfy himself about the security of the aircraft or to remove any unauthorised person from it. Such an authorised person, as I have said, will be a well-trained professional aviation security inspector, but he will not be trained in the detention of suspects or in the use of reasonable force. Nor is he likely to be in a position to conduct a full search of the aircraft on his own. I should also remind Members of the Committee that this may be happening at an airport where there is no permanent police presence, nor any other authorised person. It is therefore clear that an authorised person, in order to carry out his duties effectively, may well need to summon assistance. To render him unable to do so—which, in effect, is what the proposed second series of amendments in this group would do—would be indefensible.

I hope that in the light of what I have said, the noble Viscount will withdraw his first amendment and not move his subsequent amendments.

Viscount Astor

Perhaps I may deal first with the second part of the noble and learned Lord's reply. What he has said, in effect, is that an authorised person at an airport can co-opt any fellow worker, or indeed anybody he finds available at an airport, if he thinks that he needs them to come and help enter an aircraft and use reasonable force. I believe that is what the noble and learned Lord is saying. It is not a question of a particular group of people being involved; it is a general power of co-option by an authorised person. I believe that I have the matter right. I am sure that the noble and learned Lord will correct me if I do not.

This is a wide power. I apologise to the noble and learned Lord as I see in the groupings list that the intention to oppose Clause 87 is grouped with the amendment we are discussing. I ask one question on that matter which the noble and learned Lord touched on when responding to Amendment No. 151. I hope that it will be convenient for him to refer to it again now. I refer to the matter of appeals. I could not find easily a reference to an appeals process if an aircraft is detained. The stock answer is, of course, judicial review. However, we all know how long that takes and how expensive it is.

New Section 20B(5) contains a power for the Secretary of State to consider an objection. However, I cannot find reference to an appeals process should the owner or operator of an aircraft consider that the Secretary of State has for some reason detained his aircraft unnecessarily or wrongly. I should be grateful if the noble and learned Lord could tell me where I can find such a reference.

Lord McNally

Before the noble Viscount sits down, I should tell him that he has slightly worried me by his probing. I had been reassured that the "authorised person", when arranging for another person to enter an aircraft, or when arranging for reasonable force to be used by another person, would summon the police, the Army or someone to help. However, the noble Viscount seems to suggest that the authorised person could act like a sheriff organising a posse and could authorise almost anyone to act. The authorisation of the use of reasonable force by another person is rather worrying in its breadth of power. I hope that the Minister intends that that specialist and authorised person at the airport will call in only, as it were, equally specialised people to tackle these tasks.

Lord Falconer of Thoroton

On the first point that was raised, I refer to subsections (4) and (5) of new Section 20B, which is headed, Detention direction. Subsection (4) states: The operator of an aircraft in respect of which a detention direction is given may object to the direction in writing to the Secretary of State". Subsection (5) states: On receipt of an objection to a detention direction under subsection (4) the Secretary of State shall undertake certain courses of action. A process is gone through and then the Secretary of State will decide whether or not to confirm or, in effect, discharge the detention order that has been made. That is the appeals process to which I referred.

Viscount Astor

I am grateful to the noble and learned Lord for those comments. I was aware of that provision. My point, which I perhaps did not make clear enough, was that should the Secretary of State not agree with the person who makes an objection, what happens then? Will the matter go straight to judicial review or can the relevant person apply to the courts either to try to overturn the Secretary of State's ruling or to force him to reconsider the matter?

Lord Falconer of Thoroton

There is no procedure beyond the detention direction by the person referred to in new Section 20B(1), then the appeal to the Secretary of State. That process can be challenged by judicial review. As far as I am aware, there is no appeal beyond the Secretary of State. I am comforted by the fact that the officials in the Box nod. As regards the point made by the noble Viscount, Lord Astor, which was picked up by the noble Lord, Lord McNally, in theory there is no limit to the person who can be authorised by the authorised person to enter the aircraft or to be "another person" within the meaning of subsection (3)(e), but in practice the authorised person would be most likely to call on airport or airline security staff, who would be the most appropriate people in the circumstances.

Viscount Astor

I am afraid that the noble Lord, Lord McNally, will be disappointed because the next time he goes to the airport he will not be grabbed by an authorised person who says, "Come and join in the fun". Of course, he may be the first person they pick and I may be proved entirely wrong. I am grateful for the explanation that the Minister has given. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 151A and 151B not moved.]

Clause 87 agreed to.

Clause 88 agreed to.

10.15 p.m.

Lord Falconer of Thoroton moved Amendment No. 151BA: After Clause 88, insert the following new clause—


  1. (1) The powers in section 108(1) and (2) of the Civil Aviation Act 1982 (c. 16) (extension outside United Kingdom) apply to provisions of this Part which amend that Act.
  2. (2) The powers in section 39(3) of the Aviation Security Act 1982 (c. 36) (extension outside United Kingdom) apply to provisions of this Part which amend that Act.".

The noble and learned Lord said: This is a technical amendment to make it clear that additions or amendments to existing legislation contained in Part 9 of the Bill are intended to be capable of being extended to the Channel Islands. The Aviation. Security Act 1982 and the Civil Aviation Act 1982 both include a permissive power to extend their provisions outside the UK. As originally drafted, Part 9 did not make it clear that additions or amendments to those Acts are similarly intended to be capable of being extended outside the UK.

It is not always necessary or appropriate for an amending enactment to make it clear that additions or amendments are intended to be capable of such extension. However, the islands of Jersey and Guernsey have specifically asked that such permissive power be included. Legal advice is that, in this instance, it would be wise to make clear such provision for extension. Although it has not specifically requested an extension, the Isle of Man has no objection to Part 9 of the Bill being capable of extension in those circumstances. I beg to move.

On Question, amendment agreed to.

Lord Dixon-Smith moved Amendment No. 152: After Clause 88, insert the following new clause—


  1. (1) A person shall not—
    1. (a) go onto a train or other vehicle used for the purpose of public transport except with the permission of the operator of such train or other vehicle or a person acting on behalf of that person and in accordance with any conditions subject to which that permission is for the time being granted, or
    2. (b) remain on such train or other vehicle after being requested to leave by a constable.
  2. (2) A person who contravenes subsection (1) without lawful authority or reasonable excuse is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
  3. (3) A constable or the operator of such train or other vehicle, using such force as is reasonable in the circumstances, may remove from such train or other vehicle a person who contravenes subsection (1)(b).".

The noble Lord said: It would be a gross oversimplification to suggest that the Bill seems to presuppose that terrorists would use only aircraft for major acts of terrorism. We know from experience that that is not so. One has only to look at some of the dreadful events in Israel to see that buses can be used. I cannot recall an occasion when a train has been used for an act of terrorism, but I suppose that it is not beyond the bounds of contemplation.

This putative new clause, which we have tabled as a probing amendment to explore the Government's reaction to that proposition, simply seeks to give a somewhat greater degree of security and control to the operators of trains and buses over who should or should not travel on them. It also seeks to give them the right to object to particular individuals if they are sufficiently worried that they may pose a security risk. It is a serious point, even if we have not expressed it very well. I shall be the first to say that we may not have done so. However, it seems to me that this issue merits a certain amount of consideration. I look forward very much to hearing what the Minister has to say on the matter. I beg to move.

Lord Falconer of Thoroton

I agree in principle with much of what the noble Lord has said although I do not believe that he is putting forward his amendment as a serious attempt to deal with the problem. Much of what the amendment seeks to achieve is covered by existing legislation; for example, the Channel Tunnel (Security) Order 1994 provides similar powers in respect of a Channel Tunnel industry to those set out in his amendment. Section 129 of the Railways Act allows for by-laws to be made by operators covering the railway assets. In addition, powers exercisable by the police are also exercisable by the British Transport Police on board trains. So, in a situation when the police have power of arrest, the BTP will also have that power on board a train.

Even if one accepts that the suggested provisions in the amendment may be of use in dealing with people who board a bus or a train without permission, how is one to define "permission"? If it means not having a valid ticket, which seems to be the approach in the amendment, there are existing powers to deal with such issues under Section 5 of the Regulation of Railways Act 1889. Equally, powers exist to remove persons causing a nuisance and so on.

The most persuasive argument against the amendment is to ask what it adds to the cause of preventing terrorism. I believe that the perpetrators of the terrible atrocities of 11th September all had valid tickets. I do not think that the matter of buying tickets is at the heart of the issue. Much was made in the other place about the importance of restricting the content of the Bill to matters strictly related to the prevention of terrorism. Similar comments were made on Second Reading.

I understand that the noble Lord, Lord Dixon-Smith, does not intend to extend the various provisions on not travelling without a ticket. He was probing wider issues and I hope that I have dealt with them. If one analyses the form of the amendment, one can see that it is both unnecessary and outside the scope of the Bill. I hope that the noble Lord will be willing to withdraw the amendment.

Lord Dixon-Smith

I am grateful to the noble and learned Lord for his explanation, which has helped. He is correct that we were concerned with the issue of terrorism. Although I cannot say that I am 100 per cent satisfied that existing law is totally adequate to deal with the situation, brutal experience suggests that the law has precious little to do with the prevention of terrorism if a sufficiently determined person wants to do something.

The important point is that the matter has been properly thought about. The noble and learned Lord has suggested that it has certainly been thought about even if not in sufficient detail absolutely to prevent such terrorism. Even when the Bill is enacted, there will still be an element of prayer in the prevention of terrorism. With that thought in mind, I am grateful to the noble and learned Lord, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 152ZA not moved.]

Lord McIntosh of Haringey

I beg to move that the House do now resume.

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

House resumed.

House adjourned at twenty-five minutes past ten o'clock.