Defences

– in the House of Lords at 5:45 pm on 6 June 2000.

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(".--(1) Subsection (2) applies where in accordance with a provision mentioned in subsection (5) it is a defence for a person charged with an offence to prove a particular matter.

(2) If the person adduces sufficient evidence to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

(3) Subsection (4) applies where in accordance with a provision mentioned in subsection (5) a court--

(a) may make an assumption in relation to a person charged with an offence unless a particular matter is proved, or

(b) may accept a fact as sufficient evidence unless a particular matter is proved.

(4) If sufficient evidence is adduced to raise an issue with respect to the matter mentioned in subsection (3)(a) or (b) the court shall treat it as proved unless the prosecution disproves it beyond reasonable doubt.

(5) The provisions in respect of which subsections (2) and (4) apply are--

(a) sections 39(5)(a), 54, 57, 58, 77 and 103 of this Act, and

(b) sections 13, 32 and 33 of the Northern Ireland (Emergency Provisions) Act 1996 (possession and information offences) as they have effect by virtue of Schedule 1 to this Act.").

On Question, amendment agreed to.

Clause 118 [Crown servants, regulators, &c]:

[Amendment No. 177 not moved.]

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

moved Amendment No. 178:

Page 55, line 7, at end insert ("any of").

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

Before addressing the amendments in this group in detail, it may be helpful for me briefly to explain Clause 122.

The clause lists the Bill's order-making powers and provides that they should be made by statutory instrument and may contain savings and transitional provisions. Importantly, it also says which orders are subject to affirmative or negative resolution. An urgency procedure is provided by subsections (4) and (5).

During the Report stage of this Bill in another place, my right honourable friend Mr Adam Ingram advised that, although the Government felt that the delegated powers in the Bill were subject to the appropriate scrutiny, the powers would of course be looked at carefully by the Select Committee on Delegated Powers and Deregulation of this House.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

I am sorry to interrupt the Minister, but it seemed to me that he may be talking about the subsequent amendment. Is he talking about Amendment No. 178 and thus Clause 118?

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

Perhaps I should have indicated that I am talking to Amendment No. 178 and working through the other amendments which are similarly grouped. I thought I made it clear that I was addressing the grouping.

If the Delegated Powers and Deregulation Committee felt that any of the procedures were inappropriate, we would have regard to its recommendations.

Amendment No. 178 is a minor and technical drafting amendment. It gives more flexibility in the making of regulations under Clause 118. Amendments Nos. 178, 190, 191 and 208 are also minor and are technical drafting corrections.

Amendment No. 180 corrects an error which was spotted by the DPSC at paragraph 42 of its report. Amendment No. 181, tabled by the noble Lord, Lord Cope, addresses the same point, but I trust that he will agree to withdraw his version.

The more substantive amendments in this group concern whether certain order-making powers in the Bill should be subject to the negative or affirmative procedure. Paragraph 17(4) of Schedule 7 requires the kind of passenger information which carriers may be required to provide to be specified by order by the Secretary of State. Paragraph 21 of Schedule 8 requires provision to be made, by order, for Scotland, allowing a solicitor to be present at interviews, subject to any conditions set out in the order.

Those two powers are currently subject to the negative procedure. The DPSC recommended, at paragraphs 39 and 41 of its report, that they should be subject to the affirmative procedure on the first occasion that they are made. We considered the committee report carefully and decided to accept those recommendations. Amendments Nos. 179 and 185 put that decision into effect.

Amendments Nos. 183 to 188, tabled by the noble Lord, Lord Cope, would make those two powers subject to the affirmative procedure on every occasion when they are used. We are not persuaded of the need to go that far; we do not believe that is necessary. So having started from a proposal that the powers should be subject to negative resolution, and having considered the concerns outlined in the DPSC report, we believe that the "first-time only" affirmative procedure strikes the right balance. I beg to move.

Photo of Viscount Bridgeman Viscount Bridgeman Conservative

We are pleased that the Government accepted the requirement that a first-time order should be subject to affirmative resolution. We regard that opinion by the committee to be important and constructive and are pleased that the Government are accepting it.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

As a member of the committee, I join with the noble Viscount, Lord Bridgeman, in saying that we are happy that the Government accepted the recommendation.

On Question, amendment agreed to.

Clause 118, as amended, agreed to.

Clauses 119 to 121 agreed to.

Clause 122 [Orders and regulations]:

Photo of Lord Ampthill Lord Ampthill Crossbench

The noble Lord, Lord Bassam, has already spoken to Amendment No. 179. But I should remind the Committee that, if it is accepted, I cannot call Amendments Nos. 183, 184, 187 and 188 as they will have been pre-empted.

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

moved Amendment No. 179:

Page 57, line 30, at beginning insert ("Subject to subsection (2A),").

On Question, amendment agreed to.

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

moved Amendment No. 180:

Page 57, line 40, leave out ("118(2)") and insert ("118(1) or (2)").

On Question, amendment agreed to.

[Amendment No. 181 not moved.]

Photo of Lord Bach Lord Bach Government Whip

moved Amendment No. 182:

Page 57, line 41, after ("52(1)") insert ("(a) or (b)").

Photo of Lord Bach Lord Bach Government Whip

With the leave of the Committee, I shall move Amendment No. 182 on behalf of my noble friend Lord Bassam of Brighton. This is a drafting amendment, but I am happy to explain it more fully than usual as it has been requested, properly, that it be dealt with on its own.

Paragraphs 45 to 52 deal with insolvency in relation to forfeiture and restraint orders--this relates to Schedule 4 of the Bill--and cover the whole of the United Kingdom. Paragraph 51 provides protection for insolvency practitioners who seize or dispose of property subject to a restraint or forfeiture order. The key provision is paragraph 51(2), which says that, provided the conditions in 51(1) are fulfilled,

"The insolvency practitioner shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his negligence".

However, paragraph 51 only works for insolvency practitioners in the United Kingdom. But it is also possible that property may be seized or disposed of by an insolvency practitioner based outside the United Kingdom.

Paragraph 52, which replicates paragraph 34 of Schedule 4 to the Prevention of Terrorism (Temporary Provisions) Act 1989, therefore provides that:

"An order may be made ... to secure that an Islands or external insolvency practitioner has the same rights [in relation to property in the UK] ... as he would have if he were an insolvency practitioner in that part of the United Kingdom".

The procedure for making the order under paragraph 52 depends on which part of the UK the property is situated in--and this is where we come to the amendment.

Under paragraph 52(2), if the property is in Great Britain, the order is made by the Secretary of State. Such orders are to be subject to the negative resolution procedure by virtue of Clause 122. But if the property is in Northern Ireland, the order is made by the Department of Economic Development in Northern Ireland. The procedure for an order of this kind is set out in paragraph 52(3). It is to be subject to negative resolution within the meaning of Section 41(6) of the Interpretation (Northern Ireland) Act 1954. That replicates the provision in subparagraph (7) of paragraph 34 of Schedule 4 to the Prevention of Terrorism (Temporary Provisions) Act 1989, which was added to the 1989 Act by the Insolvency (Northern Ireland) Order 1989.

Because the procedure for orders under paragraph 52(1)(c) is set out in paragraph 52(3), it follows that the procedure in Clause 122 should not apply here; that is, in Clause 122. But the present wording of Clause 122(2)(letter "i") suggests that all of paragraph 52(1) is included. That overlap could cause uncertainty. That is why we have tabled the amendment. It clarifies that for orders under paragraph 52(1)(c), the procedure to be followed is that in paragraph 52(3) of Schedule 4, not Clause 122. I hope that that is sufficiently clear to explain to the Committee why the Government are moving this particular amendment.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative 6:00, 6 June 2000

I thought that was a very clear explanation of this highly complex matter. My only quibble is that I think it is actually (i) rather than (1).

On Question, amendment agreed to.

[Amendments Nos. 183 and 184 not moved.]

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

moved Amendment No. 185:

Page 57, line 44, at end insert--

("(2A) In the cases of--

(a) the first order to be made under paragraph 17(4) of Schedule 7, and

(b) the first order to be made under paragraph 21 of Schedule 8, the order shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament (and subsection (2)(j) or (l) shall not apply).").

On Question, amendment agreed to.

[Amendment Nos. 186 to 188 not moved.]

Photo of Viscount Bridgeman Viscount Bridgeman Conservative

moved Amendment No. 189:

Page 58, line 19, after ("opinion") insert ("and his reasons for holding that opinion").

Photo of Viscount Bridgeman Viscount Bridgeman Conservative

This subsection allows the Secretary of State to override Parliament in matters of urgency. The amendment seeks to require him to give the reasons for his opinion when making such an order. I beg to move.

Photo of Lord Avebury Lord Avebury Liberal Democrat

The amendments in my name, Amendment Nos. 189A and 189B, are grouped with this amendment. The clause as it stands requires the Secretary of State to get an affirmative resolution from each House of Parliament in order to proscribe an organisation. However, as we discussed at an earlier stage at Clause 122(4), the Secretary of State has the power, if he is of the opinion that it is a matter of urgency, to proscribe an organisation without the approval of Parliament, and that proscription remains in force for a period of 40 days after which, if it has not then received the approval of both Houses of Parliament, it lapses.

I objected to this on the first day of Committee and I gave the example that the Secretary of State could proscribe an organisation one morning at 10 o'clock and that a person going out and collecting subscriptions on behalf of the organisation at 10.05 would be committing an offence which might land him in prison, even though he had no knowledge that the order had been made. This is fundamentally unjust. Proscription is such a serious measure that it should always be sanctioned by Parliament and we should not extend that power to the Secretary of State the power an organisation at five minutes' notice and without the knowledge of the members of that organisation.

When we were discussing this previously, I do not believe that the Minister gave the Committee much of an indication of how or in what circumstances the urgency power would be used. As far as I am aware, that power that has not been used in Northern Ireland. Perhaps the Minister will explain what circumstances the Government envisage might occur in the Province which justify the use by the Secretary of State of such an extreme power. What is the justification for extending it to the whole of the United Kingdom? Terrorism has flourished in Northern Ireland in the past. There may have been new organisations of an extremely dangerous character springing up which may theoretically have justified the Secretary of State acting urgently in order to prevent those activities from continuing over the next 40 days until an order was made by Parliament. But can we imagine that such a development would occur on the mainland of the United Kingdom? Is it not always within the power of Parliament, if it sees that the circumstances justify it, to make emergency legislation extending the powers that have already been granted to the Secretary of State and to say that it is not enough to have an affirmative resolution and that we must give Ministers this power of urgency which did not exist before?

In the Criminal Justice (Terrorism and Conspiracy) Act which came before your Lordships in the summer of 1998, we went through every stage of the Bill in a single day. So, it is not that Ministers cannot take powers if they really need them to deal with terrorist threats as a matter of extreme urgency. If there is no proper justification for the power, it should not be included in the Bill. I hope that the noble Lord who is to reply will either give us a thorough explanation or say that this will be reconsidered on Report.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

Perhaps I may raise another point which arises from these amendments in my noble friend's name. It seems to me that there is a problem as regards what happens if an order is made under the urgency procedure relating to the proscription on an organisation and that order is not then approved within the 40-day period. Clause 122(5)(b) states:

"an order's ceasing to have effect shall be without prejudice to anything previously done".

I understand why there is that provision. Obviously you do not want people who have taken actions on behalf of the Government in reliance on that order to be subject to prosecution for what was done under an order that had legal authority at the time. But it seems to me that there is a particular problem if anybody has been convicted. I think it unlikely, in practical terms, that anybody would be convicted within 40 days, but it is possible. In those circumstances, if Parliament has not seen fit to endorse the order by an affirmative resolution, it would be inappropriate for somebody who has been convicted under that order to have that conviction standing on the record. While this seems to me to be a pretty improbable circumstance, should not there be a provision in the Bill to ensure that, in such circumstances, that conviction does not stand?

Photo of Lord Bach Lord Bach Government Whip

Clause 122(4) provides for an urgency procedure for most of the affirmative powers in the Bill. Amendment No. 189 in the name of the noble Viscount, Lord Bridgeman, would add to this procedure a requirement that an order made in this way should include a declaration of the Secretary of State's reasons for his opinion that the urgency procedure is necessary. Although we recognise that Parliament has a legitimate interest in seeing that such procedures are not misused, we cannot accept the need for, or the value of, this particular amendment.

As the Delegated Powers and Deregulation Committee said in its report on the Bill:

"The use of emergency or urgency procedures is a well-trawled concept, and Parliament only agrees to these where they are considered strictly necessary. The appropriateness of the use of such powers is no doubt one which the future Human Rights Committee will keep under review".

That is right but it is a much broader issue than we can properly address in the context of this Bill. The noble Viscount's proposal should be considered in that broader context. Meanwhile, of course, I give an assurance that no Secretary of State under the present Government will use the procedure without proper reasons and obviously the same would be true of any other likely government.

I turn to Amendments Nos. 189A and 189B in the name of the noble Lord, Lord Avebury. We are grateful to him for raising the issue of what happens if an organisation is proscribed by an order made under the urgency procedure and Parliament subsequently withholds its consent for the order.

We do not believe that an amendment along these lines is necessary. We can see that the noble Lord's amendments are intended as a safeguard against abuse of the urgency procedure. We believe that we have already provided an important safeguard in the appeals process set out in Part II. Our view currently is that an organisation which believes that it should not be proscribed should rely on that process rather than seeking to use Parliament as a kind of appeal court.

We accept that not for the first time the noble Lords, Lord Avebury and Lord Goodhart, have raised an important and interesting point.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

I am grateful to the noble Lord for giving way. We are not suggesting that the organisation will use Parliament. That is a most unlikely scenario. We are suggesting that, for whatever reason, Parliament declines to pass a resolution to approve the order. The result of that is that the appeals process never comes into existence so that somebody who has been convicted cannot rely on that process of deproscription and the right to appeal following a deproscription order. There is nothing left to be done. It seems to me that that is a small but not unimportant lacuna in the Bill.

Photo of Lord Bach Lord Bach Government Whip 6:15, 6 June 2000

I have said that noble Lords on the Liberal Democrat Benches have raised an important and interesting point. No doubt we shall consider again on Report the whole area of proscription. Therefore I give an undertaking that we shall think further on this matter before then. I believe that that is really what the noble Lord, Lord Avebury, wanted from me today. We shall come back either with an amendment or with a fuller reassurance as to why such an amendment is not needed.

I was asked whether the urgency procedure has ever been used in Northern Ireland. The answer is that it has. If a new organisation made itself known by means of a terrorist outrage, the public would obviously expect any government to act immediately. The noble Lord used the phrase "proscription at five minutes' notice". That may have been a form of words but it is a misapprehension on his part. "Urgency" is not five minutes' notice. It is well established and already used for the whole of the United Kingdom.

As the Committee will probably be aware, those orders are made to come into force on the following day. That is a detail only but perhaps it is worth putting it on the record.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

The question was raised as to whether a prosecution could reach that point within the 40 days. I am not quite sure whether it is 40 days full stop or 40 sitting days. Clearly, the Summer Recess is relevant to that. There may be times when it is difficult for the Government to act if Parliament is not sitting and not likely to be sitting for some weeks, as occurs during the Summer Recess. It may be necessary to use the power in those circumstances.

Photo of Lord Bach Lord Bach Government Whip

I am grateful to the noble Lord for that. I can tell him that it is 40 sitting days.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

In which case, it is more likely that a prosecution may proceed far enough for the amendment to be relevant.

Photo of Lord Avebury Lord Avebury Liberal Democrat

I am grateful to the Minister for his assurances. In view of the undertaking that we can look again at this matter on Report, I certainly shall not press my amendment.

Photo of Viscount Bridgeman Viscount Bridgeman Conservative

I am grateful to the noble Lord, Lord Bach, for his response to Amendment No. 189 which I shall read with care in Hansard. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 189A and 189B not moved.]

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

moved Amendments Nos. 190 and 191:

Page 58, line 36, leave out paragraph (b).

Page 58, line 38, at end insert--

("( ) Subsections (1)(a) and (3)(d) do not apply to an order made under regulations made under section 96.").

On Question, amendments agreed to.

Clause 122, as amended, agreed to.

Clauses 123 and 124 agreed to.

Schedule 15 [Consequential Amendments]:

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

moved Amendments Nos. 192 to 202:

Page 140, line 2, at end insert--

("Criminal Justice Act 1967 (c.80)

.--(1) The Criminal Justice Act 1967 shall be amended as follows.

(2) In section 67(7)(b) (computation of sentences) for "section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989" substitute "section 41 of the Terrorism Act 2000".").

Page 140, line 30, leave out ("paragraphs 1(1), 2 and 5 of Schedule 8 to") and insert ("any provision of").

Page 140, line 45, leave out sub-paragraph (7) and insert--

("(7) For section 61(9)(b) (fingerprinting: disapplication) substitute--

"(b) applies to a person arrested or detained under the terrorism provisions." ").

Page 141, line 3, leave out sub-paragraph (8) and insert--

("(8) For section 62(12) (intimate samples: disapplication) substitute--

"(12) Nothing in this section applies to a person arrested or detained under the terrorism provisions; and subsection (1A) shall not apply where the non-intimate samples mentioned in that subsection were taken under paragraph 9A of Schedule 8 to the Terrorism Act 2000." ").

Page 141, line 7, leave out sub-paragraph (9) and insert--

("(9) For section 63(10) (non-intimate samples: disapplication) substitute--

"(10) Nothing in this section applies to a person arrested or detained under the terrorism provisions." ").

Page 141, line 22, leave out sub-paragraph (12) and insert--

("(12) For section 118(2)(a) (definition of police detention) substitute--

"(a) he has been taken to a police station after being arrested for an offence or after being arrested under section 41 of the Terrorism Act 2000, or".").

Page 141, line 33, after ("74(2)(d)") insert ("and (e)").

Page 141, line 35, at end insert ("or

(e) an order under section 111 of the Terrorism Act 2000 (forfeiture orders),".").

Page 142, line 23, leave out from ("substitute") to ("to") and insert (""sections 37 and 38 of, and Schedules 5 and 6").

Page 142, line 28, leave out ("paragraphs 1(1), 2 and 5 of Schedule 8 to") and insert ("any provision of").

Page 142, line 37, leave out from (""(b)") to ("applies") in line 38.

Page 142, leave out lines 41 to 43 and insert--

(""(12) Nothing in this Article applies to a person arrested or detained under the terrorism provisions; and paragraph (1A) shall not apply where the non-intimate samples mentioned in that paragraph were taken under paragraph 9A of Schedule 8 to the Terrorism Act 2000."").

Page 142, line 45, leave out from ("Article") to ("applies") in line 46.

On Question, amendments agreed to.

[Amendment No. 202ZA not moved.]

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

moved Amendments Nos. 202A to 205:

Page 143, line 18, leave out paragraph (b) and insert--

("(b) for paragraph (f) there shall be substituted--

"(f) section 111 of the Terrorism Act 2000 (forfeiture orders)." ").

Page 144, line 34, at end insert--

("Northern Ireland (Sentences) Act 1998 (c.35)

.--(1) The Northern Ireland (Sentences) Act 1998 shall be amended as follows.

(2) In section 5 (fixed term prisoners: special cases)--

(a) in subsection (2) for "section 16(2) of the Northern Ireland (Emergency Provisions) Act 1996" substitute "section 80(2) of the Terrorism Act 2000",

(b) in subsection (3)(a) for "section 16(2) of the 1996 Act" substitute "section 80(2) of the 2000 Act",

(c) in subsection (4) for "section 16(2) of the 1996 Act" substitute "section 80(2) of the 2000 Act", and

(d) at the end of subsection (4)(b) insert ", and

(c) section 16(2) of the Northern Ireland (Emergency Provisions) Act 1996."

(3) For section 14(3)(a) (inadmissibility of evidence or information in certain proceedings) substitute--

"(a) be admissible in proceedings on applications made under paragraph 1, 2, 5, 11, 13, 22, 28 or 30 of Schedule 5 to the Terrorism Act 2000.".

.--(1) This paragraph applies to a reference in section 14(2) of the Northern Ireland (Sentences) Act 1998 (inadmissibility of evidence or information in certain proceedings) to an offence under a provision ("the old provision") of--

(a) the Prevention of Terrorism (Temporary Provisions) Act 1989, or

(b) the Northern Ireland (Emergency Provisions) Act 1996.

(2) The reference shall be taken as including a reference to an offence under this Act which is committed in circumstances which would have amounted to the commission of an offence under the old provision before it ceased to have effect.").

Page 144, line 43, leave out ("(g)") and insert ("(h)").

Page 145, line 1, leave out ("(h)") and insert ("(i)").

On Question, amendments agreed to.

Schedule 15, as amended, agreed to.

Schedule 16 [Repeals]:

Photo of Lord Bach Lord Bach Government Whip

moved Amendments Nos. 205A and 205B:

Page 145, line 46, column 3, leave out ("Paragraph 2") and insert ("Part I").

Page 145, line 46, column 3, at end insert--

("Part I of Schedule 2.")

On Question, amendments agreed to.

Schedule 16, as amended, agreed to.

Clause 125 [Report to Parliament]:

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

moved Amendment No. 205C:

Page 59, line 4, after ("report") insert ("prepared by a professional legal adviser who is independent of the Government").

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

In moving this amendment, I shall speak also to Amendments Nos. 206 and 207. Clause 125 provides for a report to be prepared on the workings of the Bill, or the Act as it will become. That is in line with what has happened in recent years in relation to the emergency legislation which is being replaced by the provisions of this Bill.

To a certain extent the amendments are probing but they are intended to get on the record a little more detail about what the Government have in mind as regards that report. There are three points listed in the various amendments.

First, it is important that we continue to have the benefit of an independent report on the working of this legislation. We all know that, as has been said this afternoon, we are passing draconian provisions to apply in circumstances when we all accept that draconian provisions are necessary. Nevertheless, it is right that we should ponder them from two points of view: first, to make sure that draconian provisions are still required and that the necessity for them still exists. There is no doubt about that in my mind at the moment but, nevertheless, that should be reviewed and in detail. But, secondly--and more importantly--we must make sure that they are working properly so that we do our best to defeat terrorism, while also ensuring that proper regard is being paid to human rights and everything that we, as a civilised country, hope to keep in mind in applying draconian legislation.

Such reports have been prepared for the past few years by Mr John Rowe QC, to whom we paid tribute earlier. Indeed, his work was much quoted in some of our previous debates. Formerly the reports were produced by other distinguished lawyers, notably by the noble Viscount, Lord Colville of Culross, for quite a few years. It is important that such reports should continue to be prepared by a "professional legal adviser" who is independent of the Government and is of similar standing to those distinguished gentlemen.

Secondly, Amendment No. 206 provides that the reports should cover not just the legislation itself, as specified in the Bill, but all the orders and regulations that are made under it. It has been absolutely apparent throughout our discussions that a great deal of the important detail of these provisions lies in orders and regulations made under the Act. Therefore, it is the way that the orders and regulations are being applied which is important, as well as the Act in general.

My third point is made in a slightly sideways sense in Amendment No. 207. This amendment would ensure that, as at present, such reports should be debated in "each House of Parliament". That is currently achieved by way of the relevant legislation expiring unless it is debated, which is an extremely fierce form of guillotine to ensure a parliamentary debate. We do not propose such a process, but we suggest that there should at least be a trip-wire in the provision to ensure that the Government do lay the reports before Parliament and gain its approval for the way in which the draconian legislation is applied. I beg to move.

Photo of Lord Molyneaux of Killead Lord Molyneaux of Killead Crossbench

It gives me great pleasure to support both the amendment and the remarks of the noble Lord, Lord Cope of Berkeley. In a previous incarnation I had the privilege of appearing before many of these distinguished persons. Although their conclusions were sometimes a little inconvenient to some of us--and even more inconvenient for some governments--their reports instilled confidence in the community in general. They disarmed critics of the legislation from abroad--usually people with very little real knowledge of the situation with which we were dealing. We have benefited greatly from the views and services of those distinguished persons. I warmly support the comments made by the noble Lord, Lord Cope of Berkeley.

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

I thank the noble Lord, Lord Cope, for his explanation of the amendments and especially for drawing attention to their probing nature. This is both a necessary and an important discussion.

It has long been the case that annual reporting on the operation of the Prevention of Terrorism Act and the Emergency Provisions Act has greatly assisted both this and another place in our respective consideration of the annual renewals. The Government accepted at an early stage of the Bill that an annual report to both Houses of Parliament would be welcomed, and brought forward an amendment to that effect which now appears in Clause 125.

I shall work through each amendment in turn, and begin with Amendment No. 205C. It is our intention here that the report will continue to be prepared by someone entirely independent of government; in other words, someone with an independent mind and an independent view. I am happy to place that on record. With that clear commitment, I see no need for the matter to be placed on the face of the Bill.

However, I should not be so happy to accept the other proposition in Amendment No. 205C; namely, that the reviewer must have a legal qualification. I see no reason for the proposition, although a legal background could undoubtedly be beneficial. I yield to no one in my admiration for the legal profession--I dare not, I live with a lawyer. But, having said that, such an absolute requirement might rule out other individuals equally suited to the post who may bring to bear different but equally valuable experience--experience, indeed, which in a sense guarantees their independence. To use a well-worn phrase, we want to find the right person for the job.

Amendment No. 206 would require all orders and regulations made under the Act to be covered by the annual report. I see the aim behind the amendment, but I do not believe that such a provision is entirely necessary. After all, the report is intended to cover the operation of the Act. In our view, this will catch the operation of powers exercisable under secondary legislation. The term "working of this Act" is deliberately wide to enable the report to cover the operation of the powers to whatever extent the reviewer wishes. For example, in his annual reports on the counter-terrorist legislation that is currently in force, Mr John Rowe QC goes to the trouble of looking at letters of complaint to central government on the operation of the Acts.

I ask the noble Lord to bear in mind a further point. In Northern Ireland, the holding centres are subject to a separate review mechanism; and, under this Bill, there is a mechanism for the independent review of the military complaints procedures. So it would not be necessary for these matters to be covered in the annual report, though the reviewer could, as I explained, look at them if he or she wished to do so. I believe that it is far better for us to leave it to the discretion of the independent reviewer to decide what specific ground should apply. As drafted, Clause 125 gives him or her the latitude to cover the noble Lord's point.

I turn finally to Amendment No. 207, which would require an annual debate on the report, with a move to quarterly reporting if Parliament does not approve the most recent report. Clause 125 will ensure that the Secretary of State should lay a report before "both Houses of Parliament" about the working of the Act as a whole. But we believe that the question of whether to hold a debate on that report should be left to the proper procedures of this and, indeed, another place, where this clause was added to the Bill.

Many reports are laid before Parliament each year and, clearly, it would not be possible for them all to be debated. It is for this Chamber and another place to decide which reports should be the subject of a specific debate. We do not want to bind Parliament or fetter its discretion, as this amendment would do, to have to debate this report every year; or, as the amendment suggests, more frequently if there were concerns about the content of the report. In the final analysis, we believe that the decision would be best taken year on year in respect of each report, through the usual procedures of the House. With that explanation, I trust that the noble Lord will not press his amendment.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

There was a crumb or two in the Minister's response. First, so far as concerns Amendment No. 205C, we now know that the report will be prepared by an independent adviser. However, the Minister also said that it would not necessarily be prepared by a lawyer. At that point, the noble and learned Lord the Lord Chancellor came into the Chamber. I was not quite sure whether he had done so in order to intervene on behalf of his profession, but perhaps his entry relates to later business.

I must admit that I was surprised by what the Minister said in that respect. It seems to me that it is essentially a legal job to report on this legislation. I cannot recollect off the top of my head all those who previously prepared reports, but I believe that I am right in saying that all of them have been distinguished lawyers--

Photo of Lord Molyneaux of Killead Lord Molyneaux of Killead Crossbench

I am grateful to the noble Lord for giving way. I shall be brief. My only connection with the legal profession was when I served for many years as a justice of the peace, but I was then "holding the ring", so to speak, and not necessarily on anyone's side.

I believe that the noble Lord, Lord Cope of Berkeley, made a valid point earlier. We need to reassure the public. The public perception is that a person who is learned in the law, for example, can be trusted to act impartially and to give an impartial view.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative 6:30, 6 June 2000

I agree with those comments. It is important that a distinguished lawyer should prepare the report. Perhaps the Minister can tell me whether under the previous legislation the report was prepared by someone who was not a leading lawyer. However, as far as I can recall, a leading lawyer has always prepared it.

I received more than a crumb, as it were, on Amendment No. 206 as the Minister assured me that all orders and regulations were covered by the provision. As regards Amendment No. 207, I received, if more than a crumb, only half a loaf. The Minister said that it was for Parliament to decide whether to discuss the report. Strictly speaking, that is correct. However, I hoped that the Minister would say that it was the Government's intention to suggest that both Houses of Parliament should discuss the report. We all know that the Government have a great deal of influence over what is discussed in both Houses of Parliament. The Government have extensive, although not complete, control over the time allocated to business in both Houses of Parliament. I thought that I would be given an undertaking that it was the Government's intention that the report should be discussed in both Houses of Parliament. I certainly think that it should be.

However, I shall not press the matter at this stage. We shall consider it further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 206 and 207 not moved.]

Clause 125 agreed to.

Clause 126 agreed to.

Clause 127 [Commencement]:

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

moved Amendments Nos. 207A and 208:

Page 59, line 10, leave out ("section 2(2)") and insert ("sections 2(2) and (Defences)").

Page 59, line 13, leave out subsection (2).

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

I beg to move Amendments Nos. 207A and 208 en bloc.

On Question, amendments agreed to.

Clause 127, as amended, agreed to.

Clause 128 [Transitional provisions]:

Photo of Lord Bach Lord Bach Government Whip

moved Amendment No. 209:

Page 59, line 15, leave out subsections (1) and (2) and insert--

("( ) Where, immediately before the coming into force of section 2(1)(a), a person is being detained by virtue of a provision of the Prevention of Terrorism (Temporary Provisions) Act 1989--

(a) the provisions of that Act shall continue to apply to him, in place of the corresponding provisions of this Act, until his detention comes to an end, and

(b) nothing in paragraph 4 or 7 of Schedule 15 shall have effect in relation to him during his detention.").

Photo of Lord Bach Lord Bach Government Whip

In moving Amendment No. 209, I wish to speak also to Amendments Nos. 210 and 211. These are technical amendments to do with the transitional provisions in the Bill.

As the Committee knows, the Bill replaces the Prevention of Terrorism Act 1989, (the PTA). Subsections (1) and (2) of Clause 128 deal with what happens to people who are being detained under the PTA at the moment when the Bill takes over.

The effect of the Bill as currently drafted is that, if someone is arrested under the arrest power in Section 14 of the PTA, the police will have to apply the Bill regime to their detention as soon as the Bill comes into force. But if someone is arrested under the ports powers in Schedule 5 to the PTA, the PTA regime continues for them up to the end of their detention. We believe that this position is anomalous in that it could lead to different regimes applying to people who were detained at the same time. We are also concerned that the idea of switching to the "Bill" detention regime half-way through someone's detention, as contemplated by Clause 128(1), could be difficult in practice.

We have therefore decided that it will be simpler and just as effective to allow for the PTA detention regimes to continue to the end of the detention period for anyone arrested under the PTA, whether under the arrest power or the ports powers. This is achieved by Amendment No. 209. I remind the Committee that the maximum period any detention could last under this transitional regime is one minute short of seven days.

I should stress that this is very much a belt and braces provision for use in the circumstances where someone is being detained when the Bill comes into effect. We do not envisage that it will be used much--and, of course, it has an extremely limited shelf life.

Amendment No. 210 is a general transitional proposition. It is immediately intended to deal with any problems which might arise in Schedule 15 where the Bill substitutes references to detention under provisions of the Bill for references to detention under provisions of the PTA, but where the policy intention is that references to the former should include references to the latter.

Amendment No. 211 clarifies transitional arrangements for the specific case of Section 14 of the EPA. I beg to move.

On Question, amendment agreed to.

Photo of Lord Bach Lord Bach Government Whip

moved Amendments Nos. 210 and 211:

Page 59, line 32, at end insert--

("( ) A reference in this Act or any other enactment or instrument to a provision of this Act shall (so far as the context permits) be taken to include a reference to a corresponding provision repealed by this Act.").

Page 59, line 32, at end insert--

("( ) The repeal by virtue of this Act of section 14 of the Northern Ireland (Emergency Provisions) Act 1996 (young persons convicted of scheduled offences) shall not affect its operation in relation to offences committed while it was in force.").

Photo of Lord Bach Lord Bach Government Whip

I beg to move Amendments Nos. 210 and 211 en bloc.

On Question, amendments agreed to.

Clause 128, as amended, agreed to.

Remaining clauses agreed to.

House resumed: Bill reported with amendments.