Terrorism Bill

– in the House of Lords at 4:46 pm on 6 June 2000.

Alert me about debates like this

House again in Committee.

Clause 108 [Evidence]:

On Question, Whether Clause 108 shall stand part of the Bill?

Photo of Lord Goodhart Lord Goodhart Liberal Democrat 5:06, 6 June 2000

This clause replaces a section to a similar effect which was enacted in the Criminal Justice (Terrorism and Conspiracy) Act 1998. That Act was passed after a two-day debate in your Lordships' House at the beginning of September 1998 in the aftermath of the Omagh atrocity, obviously as emergency legislation. That special section has so far never been relied on in a court in the United Kingdom; and I have to say I believe that this Bill, as its successor, probably never will be, even if it is enacted. This clause, or rather its predecessor, was subjected to a devastating analysis in September 1998 during the debate of the noble and learned Lord, Lord Lloyd of Berwick, who I am glad to see in his place. I hope that he will repeat that analysis.

Therefore I shall try to be brief in speaking about this. On these Benches we believe that this clause is both improper as a matter of law and useless in practice. It is improper because it is surely for the court to decide whether an accused belongs to a proscribed organisation on the basis of the evidence before it. The opinion of a police superintendent, or a higher police officer, is not evidence of the accused's membership, even if you call it so.

What is happening is not that the police superintendent is giving evidence but that we are transferring part of the court's power of decision-making--the power to decide whether the accused is a member of a proscribed organisation--from the court to a police officer. Of course it is not a transfer of the whole of that power of decision but it does transfer an important element of it. The opinion of a police officer may, and no doubt will, be based on the evidence as presented to him.

But that opinion is not itself evidence; and whether the evidence justifies the opinion is a matter for the court and not for the police officer.

Under this clause, the police officer's opinion would still be treated as evidence, and possibly a crucial piece of evidence, even if that opinion were based on a belief in the probability rather than the certainty of its truth. The opinion could, and perhaps in a number of cases would, be based on an inadmissible confession. Unquestionably, as a matter of legal procedure, it is plainly inappropriate. It would no doubt be regarded as inappropriate in Strasbourg; and, unquestionably, it would be regarded--quite apart from the European Convention on Human Rights--as a breach of the fundamental tradition of the British legal systems.

Furthermore, it is not only improper, it is useless. Let us consider what will happen at the trial. The first questions which counsel for the accused will ask the police officer is, "What is the evidence you base your opinion on?" If the police officer says, "I'm sorry, I cannot tell you because of risk to our intelligence sources", almost inevitably the court, the judge having been trained in the judicial traditions of this country, will disregard the evidence as being unreliable and untrustworthy. In the unlikely event of the police officer saying what the grounds of his opinion are, counsel for the accused is entitled to say, "We want to hear the primary evidence from people who can give it, not evidence second hand from you, the police officer".

The clause was introduced in haste and should be repented of at leisure. It should never have been included in the 1998 Act; and it surely should be removed from the statute book now. I believe that Clause 108 should not stand part.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Crossbench 5:15, 6 June 2000

I support the noble Lord. I can be brief because he has covered most, if not all, the arguments and I am in the process of losing my voice.

When the criminal justice Bill was before the House in September 1998, I was opposed to Clauses 1 and 2, which are reproduced in Clauses 108 and 109 of the Bill currently before the Committee, on the ground that they would achieve nothing in practice. However, I voted in favour of the Bill because in the aftermath of the bombing at Omagh it seemed to me that something was needed then, even if it were only a gesture. The time for gestures has now passed. There has been time to think again about Clauses 108 and 109. I had hoped that Clause 108 would have quietly disappeared never to be heard of again.

I shall not repeat the arguments which I sought to advance on the last occasion. They came to this: that no judge in Northern Ireland--I am lucky enough to know most, if not all, of them--would take account of the opinion of a police office, however senior, as to whether an accused was a member of a specified organisation unless he could back up that opinion with some evidence. Without evidence it is mere opinion, and mere opinion is worthless in a court of law except when it is given on expert grounds; and on this a police officer is not an expert.

The only evidence which a police officer could use to back up his opinion of the membership of an accused of a specified organisation would almost certainly be the evidence of an informer or other evidence from some secret source which could not be given in court. Therefore there could be no effective, meaningful cross-examination of the police officer on the opinion he had expressed.

If, perchance, a judge were to take account of an opinion of a police officer in these circumstances in convicting a defendant--let us bear in mind that the provisions apply to the conviction of a defendant as well as the committal of an accused for trial--such a conviction would almost certainly be upset on appeal because it would have been in part based on evidence which had not been given in open court and therefore would be contrary to any number of provisions of the Human Rights Act.

To make the opinion admissible in court is, I have to suggest to the Committee, a complete waste of breath. Earlier today the noble and learned Lord, Lord Falconer, described these two provisions as being hard hitting, additional powers. If by that description he refers to Clause 108, I can only disagree, sadly, with him. It hits, and will hit, nothing.

I am not surprised that Clause 108 has apparently not been used in a criminal court since it was enacted. In this Chamber one is not allowed even to think, "I told you so". I shall not say that but only that I am not in the least surprised it has not been used.

Photo of Lord Glentoran Lord Glentoran Conservative

I am sorry the noble Lord, Lord Richard, is not in his place. From this side of the Chamber, I rise to support the Government. Although we have an immense respect for the noble and learned Lord, Lord Lloyd, to say nothing of the noble Lord, Lord Goodhart, it would be inconsistent for me to attempt to persuade the Government to remove these paragraphs in this part of the Bill which is clearly for Northern Ireland emergency situations.

Clause 108(3)(b) gives considerable protection. It states clearly that,

"the accused shall not be committed for trial, be found to have a case to answer or be convicted solely on the basis of the statement"-- that is, the statement from the police officer. Those of us who work and live in Northern Ireland know only too well how unbelievably difficult it can be to get any evidence in time before a court. In that situation, and with the use of this part of the Bill that the Minister made clear, we support the Government.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

The Government have never disguised the fact that these are serious provisions. As we acknowledged at the time they were introduced, they take the law to its very limits. Nevertheless, the Government believed then, and continue to believe now, that the provisions were an appropriate and proportionate response to the serious threat posed by active dissident groups opposed to the peace process.

That threat was demonstrated at its most deadly by the appalling events in Omagh on 15th August 1998. Despite all the existing legislation and the information and intelligence available to the security forces, it was not possible to prevent the bomb that detonated in the heart of Omagh on a busy Saturday afternoon, killing 29 innocent men, women and children. That atrocity reminded us all that there were extreme elements which were determined at all costs to frustrate the will of the people expressed in their support for the Good Friday agreement. It was vital that the governments took action, North and South.

Unfortunately, that threat has not gone away. Dissident groups remain violently opposed to peace. There have been a number of attacks in recent months in Northern Ireland and, although it is still too early to be definitive, last week's bomb attack at Hammersmith Bridge may also underline that the threat is still very real.

However, the Government also recognise the need to comply fully with our human rights obligations and with the natural requirements of fairness and justice. Our guiding principle is that where powers are introduced which go beyond the normal criminal law, as these undoubtedly do, appropriate safeguards must be built in to ensure that they are not used inappropriately.

I can assure the Committee that the judgments which were made in relation to the European Convention on Human Rights were made only after the fullest consideration, otherwise my noble friend Lord Bassam would not have made the declaration he did under Section 19 of the Human Rights Act. In that respect, it is important to note the safeguards which are in place in this clause.

First, Clause 108 requires that a police statement must be given by a senior officer of at least the rank of superintendent, and must be given orally, with the opportunity for cross-examination by either party or by the judge. That cross-examination can examine the basis on which the police officer makes his statement.

Secondly, subsection (3)(b) provides that an accused cannot be convicted solely on the basis of a police officer's statement. It must be corroborated by other evidence.

Thirdly, the clause provides only for the evidence of the admissible. It will be for the courts to determine what weight, if any, to give to such evidence and that will depend on the circumstances in particular cases. That is an important safeguard, as I hope that noble Lords will recognise.

Finally, as was discussed in relation to the earlier amendment, this provision is targeted very specifically at only a small number of organisations in Northern Ireland which remain wedded to violence. Currently, there are only four specified organisations to which Clauses 108 to 111 apply: the Real IRA, the Continuity IRA, the Orange Volunteers and the Red Hand Defenders.

I also remind Members of the Committee that these provisions are kept under review with regard to their continuing requirement. They can at any point be "switched off" by order. That review process will take account of the approach of the government of the Republic of Ireland to their equivalent provisions since cross-border co-operation has been an important factor in their history.

Like many noble Lords, I look forward to the day when stringent, indeed draconian, measures such as these can be removed from the UK statute book. I sincerely hope that that day is not far off. But I believe that it would be premature to dispose of an integral piece of our armoury at this stage. I commend Clause 108 to the Committee.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

I am grateful in particular to the noble and learned Lord, Lord Lloyd of Berwick, for his speech. He repeated the arguments which he persuasively addressed to the House in September 1998.

I am afraid that I am unable to accept that there are adequate safeguards in the Bill. First, the fact that the opinion must be that of a middle-ranking police officer--a superintendent--rather than someone more junior is not a form of safeguard. The safeguard in subsection (3)(b), that no one can be found to have a case to answer solely on the basis of the statement, is of little value, and it seems that there is a dilemma. If there is evidence to justify conviction without taking into account the opinion of the police officer, why give evidence of the police officer's opinion at all? If, on the other hand, the police officer's opinion is an essential piece of the jigsaw leading potentially to conviction, we shall run up against the problem pointed out by the noble and learned Lord, Lord Lloyd; namely, that no judge brought up in the traditions of the courts of Northern Ireland, which in this respect are plainly the same as those of Scotland, England and Wales, will accept that evidence as the basis for conviction. I talk about the "judge" because it is almost inevitable that such trials will be held under the Diplock procedure.

The fact is that any society which regards itself as governed by the rule of law, as we certainly do, must apply the rule of law even when it is inconvenient and frustrating for it to do so. And here I do not use the expression "human rights"; I use the expression "rule of law", which is a different and older tradition. It certainly goes back many centuries in this country. I do not believe that Clause 108 satisfies the tests of the rule of law.

It is not my intention today to seek to divide the Committee on Clause 108, but we may well return to the issue on Report. I withdraw my opposition to the Question that Clause 108 stand part of the Bill.

Clause 108 agreed to.

Clauses 109 to 115 agreed to.

Schedule 14 [Exercise of Officers' Powers]:

Photo of Viscount Bridgeman Viscount Bridgeman Conservative

moved Amendment No. 172:

Page 139, line 19, leave out paragraph (e).

Photo of Viscount Bridgeman Viscount Bridgeman Conservative

Amendment No. 172 refers to page 6, paragraph 32, of the report of the Delegated Powers and Deregulation Committee, which draws attention to the fact that Schedule 14 permits information obtained by authorised officers to be passed on to listed person or,

"to a person specified by order of the Secretary of State for use of a kind specified in the order".

This is a probing amendment, but the Committee seeks an explanation of why these powers should be drawn in such wide terms. Our amendment seeks to restrict the width of those powers. I look forward to hearing the Minister's reply. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

I can well understand the thinking behind the amendment. Indeed, the Delegated Powers and Deregulation Committee in its report encouraged your Lordships' House to probe the need for such a wide provision allowing the Secretary of State to add by order to those to whom information acquired by examining or authorised officers might be made available and for what purpose. I hope that today I shall be able to allay any underlying concerns.

First, this type of provision is not novel. Indeed, a similar provision is to be found in Sections 21 and 22 of the Immigration and Asylum Act 1999 in relation to the supply of information acquired by immigration officers. I am sure that the noble Viscount is aware of that because I recall that his noble friend Lord Cope moved a similar amendment to that Bill when it was before your Lordships' House.

In the case of the Terrorism Bill, the provision concerns information acquired by an examining officer or an authorised officer. The point of the provision in both cases is, of course, to provide flexibility for the future, but with safeguards.

At the moment, the key frontier control agencies with which the police, as examining officers, work, and with which it makes good operational sense to exchange information, are Customs and Excise and the Immigration Service. Closer co-operation and working relationships between them are developing at all times. In addition, the police work closely with their colleagues in the National Criminal Intelligence Service and the National Crime Squad. All those organisations are named on the face of the Bill.

However, I believe that one can say fairly that in framing new anti-terrorist legislation we have tried as far as possible to be "future proof". We have added the new provision concerning the seizure of cash at borders by authorised officers. With that in mind, it seems prudent to us to provide the Secretary of State with a reserve power so that he can add extra agencies to the list if developments suggest that that might be operationally beneficial.

At the moment we do not plan to use the power. If we had other organisations in mind, of course we would name them on the face of the Bill. However, times change and links with other agencies may develop or relevant responsibilities may change. It could be to the general benefit of all concerned that the supply of information to other agencies is sanctioned.

The Bill proposes that the addition of a further agency to the list of those to whom information may be supplied should be subject to the affirmative resolution procedure. We consider that to be the appropriate level of scrutiny in these circumstances. It is an important power which concerns the passing of information to third parties and it is right that this level of safeguard is provided.

I hope that that explanation is clear and that the noble Viscount will not seek to press his amendment.

Photo of Viscount Bridgeman Viscount Bridgeman Conservative

I thank the Minister for that comprehensive reply, which we shall study carefully. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 14 agreed to.

Clause 116 agreed to.

Clause 117 [Consent to prosecution]:

Photo of Lord Goodhart Lord Goodhart Liberal Democrat 5:30, 6 June 2000

moved Amendment No. 173:

Page 54, line 36, leave out ("subsection (3)") and insert ("subsections (3) and (4)").

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

In moving Amendment No. 173, I shall speak also to Amendment No. 176, both of which stand in the names of my noble friends and myself. These amendments concern the question of whether it is appropriate for the Director of Public Prosecutions to consent to prosecutions in terrorist cases which are concerned mainly with overseas terrorism or whether that consent should be given, as we suggest, by the Attorney-General.

It will be a useful safeguard to require consent to be given at a high level to the prosecution of offences under the Bill. Of course, we welcome that. Clause 117 as it now stands requires that in all cases the consent be that of the Director of Public Prosecutions. Our view is that the consent of the DPP is indeed sufficient where the case relates to what I might describe as "internal terrorism". However, a prosecution, for example, for funding of allegedly terrorist activities outside the United Kingdom, or, to take another example, weapons training for overseas terrorism prosecuted under Clause 54, may raise very sensitive political issues.

If the organisation in question to which the accused person is said to belong is proscribed under the Bill, the decision is in some ways much simpler. The political decision regarding the justification of prosecution for membership of or activities under the aegis of that organisation will already have been taken by the Secretary of State when he made the proscription order. Therefore, we believe that in the case of prosecution for offences under Clauses 11 to 13, which come into play only when the relevant organisation is a proscribed organisation, the consent of the Director of Public Prosecutions is adequate. However, all the offences referred to in Amendment No. 176 can be committed by members of an organisation which is not proscribed.

At Second Reading of the Bill, I, as did a number of other speakers, touched on the difficulties concerning overseas terrorist organisations which conduct fund-raising, organisational or other activities in this country. They raise the question of whether the activities of such an organisation are ones that we support to an extent which would make it inappropriate to prosecute, even if technically they come within the definition of terrorism. I do not believe, for example, that in this country we would have wished to prosecute someone who raised funds in the 1980s for the African National Congress, even though some of the activities carried on by the ANC during the course of its armed struggle undoubtedly came within any reasonable definition of terrorism. Therefore, a decision would have to be taken as to whether the ANC was an organisation whose members we should prosecute if they conducted fund raising or training in this country.

The Director of Public Prosecutions is a civil servant. He or she is and should be non-political. However, the decision to prosecute for involvement in overseas terrorism requires to be taken by someone who certainly has political experience and good political antennae. Of course, the decision must not be taken as a political decision. If that happened it could lead to disaster, as, indeed, happened with the decision of Sir Patrick Hastings, the Attorney-General in the first Labour government in the Campbell case in 1924.

However, we believe that the decision must be taken by someone who has a political background and, above all, by someone who sits in one or other House of Parliament and who can be called upon to explain himself in that House. I do not intend in any way to be disrespectful to Mr David Calvert-Smith, the present DPP, but I certainly believe that the noble and learned Lord, Lord Williams of Mostyn, would be admirably placed to undertake the difficult task of deciding whether or not prosecution should be authorised in these borderline cases.

The Conservative amendments propose to require all prosecutions under the Bill to have the consent of the Attorney-General. We do not object to that in principle but it seems to us that the decision in cases of domestic terrorism is likely to depend much more on nuts and bolts issues, such as whether there is sufficient evidence to justify a prosecution. Our own feeling is that those decisions can properly be taken by the DPP and thus save the time of the Attorney-General. However, I express the hope that the Government will be willing to accept the principle behind either our amendment or that of the Conservatives, which we would support in default of our own. I beg to move.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

As the noble Lord, Lord Goodhart, has just pointed out, we also have two amendments in this group, Amendments Nos. 174 and 175, which go slightly further than the Liberal Democrat Amendments Nos. 173 and 176, also being debated. First, I support what the noble Lord, Lord Goodhart, said with regard to his amendments concerning overseas terrorism and making the case that proceedings should not be instituted without the consent of the Attorney-General where they concern terrorism wholly or mainly outside the United Kingdom.

There is also a case for saying that, given the political nature of all terrorist offences, the Attorney-General is the right person to sanction prosecution for all these offences, whether or not they are concerned with foreign terrorism. That is obviously the effect of our amendments. However, apart from that, there is a potential difficulty in trying to distinguish between terrorism which is wholly or mainly outside the United Kingdom and terrorism which is not.

Much of the terrorism about which we have been speaking this afternoon, though by no means all, is in connection with Ireland. There is reason to suppose that a good deal of the capacity of PIRA and other related organisations exists outside the United Kingdom; that is, substantially in the Republic of Ireland and, to a small extent, further afield. Is PIRA terrorism, therefore, wholly or mainly outside the United Kingdom? When PIRA was active, the bombs it let off and the incidents it perpetrated were within the United Kingdom. The same can be said now of the Real IRA and the Continuity IRA. But there are other organisations at the Protestant end of the scale, the loyalist end, which have carried out attacks in the Republic of Ireland. I do not think they would claim to have carried out more offences in the Republic of Ireland than in Northern Ireland; nor would anyone point to that fact. Certainly, they are not doing so at present.

However, I mention that to draw attention to the potential difficulty of trying to distinguish in this way between terrorism wholly or mainly outside the United Kingdom and other terrorism; that is to say, within the United Kingdom. That is one reason for marginally preferring our Amendments Nos. 174 and 175 to those moved by the noble Lord on behalf of the Liberal Democrats. I believe the point is worth the consideration of the Committee.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office 5:45, 6 June 2000

I do not want Members of the Committee on the Benches opposite to get too excited, but my speaking note starts, "Resist - but".

It is common ground between us that there should be a consent provision in relation to the main offences in the Terrorism Bill. Clause 117 of the Bill provides for that. The issue is whether these offences in some or all circumstances should be subject to Attorney-General rather than Director of Public Prosecution consent.

Amendments Nos. 173 and 176 tabled by the noble Lord, Lord Goodhart, propose that where offences relate to terrorism wholly or mainly outside the United Kingdom there should be Attorney-General consent for a prosecution to go ahead. At Second Reading the noble Lord indicated that he supported such an approach because of the difficult and sensitive issues which can arise in connection with such cases. Perhaps I may say that he developed that argument very well this afternoon, with his usual talent. He said that political antennae were required. I believe that that is, indeed, the case.

The noble Lord also stressed the importance of the involvement of someone directly accountable to Parliament in issues which can touch on international relations and related matters. That is a wise observation.

I am sure that the Committee will recall that the noble Lord, Lord Bach, indicated on the first day of Committee that we have sympathy with those arguments. We recognise the particular sensitivities that may apply in international cases. However, we are not entirely persuaded that Amendments Nos. 173 and 176 quite do the trick. On a technical point, they do not cover Northern Ireland. We take the view that any change to the current consent provisions should also apply there.

More substantively, we should like to look carefully at the formula proposed for defining an international case. That may have some bearing on the comments made by the noble Lord, Lord Cope. It is important that the right ground is covered, and as clearly as possible. We need to reflect further on whether the phrase,

"terrorism wholly or mainly outside the United Kingdom", fully meets those tests. For instance, we are not sure that it is entirely clear whether the formula applies to acts that take place wholly or mainly outside the United Kingdom or to acts undertaken in the United Kingdom or elsewhere to advance a cause wholly or mainly connected with a place other than the United Kingdom, or both. This is far from straightforward territory. I am sure that the noble Lord will appreciate that we want to consider further whether the approach adopted in the amendments is the best one in all the circumstances.

As we have indicated, we have sympathy with the concern underlying the amendments, although we cannot accept them in their current form. We should like to take them away for further consideration with a view to tabling further amendments of our own at Report stage.

I turn to Amendments Nos. 174 and 175 tabled in the name of the noble Lord, Lord Cope. These amendments go further--although the principle is the same in terms of the major offences under the Bill--in arguing that they should be subject to Attorney-General rather than DPP consent.

We believe that the amendments perhaps go a step too far. We have indicated that we have sympathy with the point made by the noble Lord, Lord Cope. We accept the case for requiring the involvement of the Attorney-General in international cases because of the sensitivities which have been alluded to in the debate. However, we do not think that it is necessary to require his personal consent for prosecutions under the Bill which do not have an international dimension. That is not to say that we do not recognise the many delicate issues which may be involved in deciding public interest in such cases. However, the DPP is well used to making such decisions in complex and sensitive areas. It is always open to him to consult the Attorney-General on particularly difficult and sensitive cases. Indeed, the Attorney-General is informed as a matter of course of all serious cases. The Director of Public Prosecutions can and does raise individual cases of concern in their regular discussions.

It is important that Attorney-General consent to prosecution is reserved for the most sensitive and serious cases of all and that the numbers of categories of cases he has to consider personally are kept to a manageable number so that he can give them the sufficient detail of attention they require. I think the House will agree that a line has to be drawn somewhere.

We have indicated that we intend to table amendments at Report stage to provide for Attorney-General consent in international cases, but we are not persuaded that the case has been made also to require his personal involvement in cases without that international dimension.

The fact that some cases under the PTA are currently subject to DPP consent--primarily Sections 16A and B concerning the possession of articles or information for terrorist purposes--indicates that the DPP will not be taking on an area of work with which he is entirely unfamiliar.

In the light of our undertaking to table the amendments I have described at Report stage, I trust that noble Lords will not seek to press their amendments.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

I am grateful to the noble Lord, Lord Bassam, for what is certainly a more than moderately encouraging reply. I am grateful that he has accepted the principle behind our amendments. I have enough knowledge of the problems of parliamentary drafting to recognise that opposition amendments are rarely perfect. I am sure that ours could be improved upon. I shall look forward with interest to seeing what is proposed at Report stage. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 174 to 176 not moved.]

Clause 117 agreed to.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

moved Amendment No. 176A:

After Clause 117, insert the following new clause--