moved Amendment No. 1:
Page 1, line 7, leave out subsection (1) and insert--
("(1) In this Act "terrorism" means the use or threat of action where--
(a) the action falls within subsection (1A),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(1A) Action falls within this subsection if it--
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(1B) The use or threat of action falling within subsection (1A) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.").
My Lords, first, perhaps I may apologise for the absence of my noble friend Lord Bassam, who has taken the Bill through the House thus far. He will of course be in his place at Third Reading. He is not here because he has been asked to represent the Home Office today in Charleroi in Belgium. Before he agreed to do so, he sought the permission of the Opposition Front Bench spokesman. The House will be interested to hear that he was granted that permission.
My Lords, I am grateful to the noble Lord, Lord Cope of Berkeley. Perhaps he teaches some of his Front Bench a lesson in manners. I know not.
I have had placed in the Printed Paper Office and handed to opposition spokesmen the definition of terrorism that would result if the government amendments to Clause 1 and other clauses were accepted.
I shall speak to Amendments Nos. 1, 3, 4, 24 and 49, as well as the others grouped with them. In the light of the debates on Second Reading and in Committee in your Lordships' House, we have looked again at the definition of terrorism in Clause 1. We have always said that we were prepared to listen to concerns raised about the definition and we have tabled amendments in response to two specific lines of argument. I hope that they will find favour with the House.
The first change that we propose addresses action designed seriously to interfere with or disrupt an electronic system. It is included to ensure that serious disruption to computer systems to advance a political, religious or ideological cause is covered. Many noble Lords from all sides pressed us during earlier stages of the Bill to take that step, particularly in the wake of recent events. Our amendment is an important improvement to the Bill. As a consequence, the amendments to Clause 113 and Schedule 9 also add offences under the Computer Misuse Act 1990 to the list of scheduled offences in Schedule 9, so that those offences in Northern Ireland can be treated in the same way as other offences that terrorists commit.
We have also introduced an explicit requirement that for an action to be considered terrorism its purpose must, in most circumstances, be to intimidate the public or influence a government. The exception is when firearms or explosives are used. We have provided that to ensure that, for example, assassinations for political or other purposes are definitely covered. Of course, normally the terrorist use of firearms or explosives is a wicked attempt to put the public at fear, and often to influence a government as well, but we do not want the police to feel hindered in any way from acting in situations that most, if not all of us would regard as terrorism--such as assassinations--because it was not clear that either of those elements was present.
I hope that the introduction of this second new element to the definition will be welcome. Many have commented that our definition was seriously flawed because it lacked an explicit link with the concept of terror. That has been rectified. I should add in passing that we have moved, as some had suggested, from speaking of serious violence to serious damage to property. I beg to move.
My Lords, Amendment No. 2 stands in my name and that of the noble and learned Lord, Lord Lloyd of Berwick, who cannot be with us this afternoon. Those who have looked at the amendments will see that Amendments Nos. 1 and 2 are remarkably similar. The noble and learned Lord and I think that the government amendment is entirely satisfactory and will meet the wishes that were expressed earlier in our debates.
The Minister has drawn attention to some of the changes in the definition of terrorism that we and others asked for, starting with the insertion of terror and intimidation. One of the extraordinary features of the Bill's original definition of terrorism was that it did not include terror. I am glad to say that it is now rightly included. The amendment also extends the definition to cover what is known in the jargon as cyber-terrorism--the destruction of electronic systems. That is very important, because great damage can be caused to public life and the public can be held to ransom by computer hacking of one kind or another. Terrorists have already begun to do that and may do so a great deal more in the future.
It is also clear from how the amendment is inserted in the Bill that terrorism involving overseas countries and governments is included. That is also important. We do not want the United Kingdom to be the base from which terrorists operate against foreign governments in pursuit of foreign aims.
Amendment No. 49 rightly brings offences under the Computer Misuse Act 1990 committed in Northern Ireland into the list of scheduled offences that can be dealt with by the Diplock courts and all the associated machinery, for as long as it is necessary. Financial rackets and rackets involving computers can be just as damaging as bombs and guns in the hands of terrorists in Northern Ireland. Given the difficulties that there have been in courts in Northern Ireland in the past, it is important that those offences should be included in the list of scheduled offences.
I am grateful to the Government for amending the definition of terrorism along the lines suggested in earlier debates. I support Amendment No. 1 and the others being discussed with it.
My Lords, we would have given more or less unreserved support to Amendment No. 2. I discussed its drafting with the noble and learned Lord, Lord Lloyd of Berwick. We particularly welcome the introduction of the concept of intimidation as a necessary part of the definition of terrorism.
Our welcome for Amendment No. 1 is more qualified. It is unquestionably an improvement on the original definition, so we do not intend to oppose it, but we find aspects of it distinctly worrying. In particular, it includes actions that may influence the Government without intimidating any section of the public. That may be justified in certain cases, but the amendment is currently too wide. We accept that the definition needs to cover actions that are not directed specifically against the public, such as the assassination of leading members of the Government or people in similar positions, but it needs to be tightened up. It is difficult to justify treating as terrorism an action that involves serious damage to property if it merely influences the Government and is not likely to intimidate the public. That is particularly relevant when we consider that we may be talking about not just the Government of the United Kingdom, but those overseas.
In principle, we support the exception for the use of firearms or explosives, but it leaves a gap, because it does not cover a situation in which a member of the Government is hijacked and then strangled rather than shot. That is perhaps an unlikely situation, but it is possible.
Our view of this is, therefore, that we cannot give unqualified approval to Amendment No. 1. As I said, we do not intend to oppose it because we regard it as an improvement, but we shall look at it carefully. It is more than likely that we shall want to bring back amendments to the redefined definition on Third Reading in order to be able to have a full debate on the issue. Therefore, for today, I simply say that we do not oppose the amendment.
My Lords, some of the amendments in this group are in my name. I welcome the progress which the Government have made in producing a better definition of "terrorism".
It is not necessarily perfect. I echo the thoughts of the noble Lord, Lord Goodhart, that it is quite possible that we should look again at new subsection (1A)(b) which relates to serious damage to property, for the reasons that he has explained. My party and I are not happy with new subsection (1A)(c). We do not like the fact that the provisions include endangering the terrorist's own life. I would describe that as the "Swampy"/Emily Davison situation and it does not seem to me to call for this kind of legislation. When Britons are protesting against something and trying to persuade people to change their views and the law, they should be prepared to sacrifice themselves, if necessary, without that becoming a major offence. If they are risking their own lives, they are already risking a great deal. I do not believe that the Government should take that point of view.
By listening and talking, the Government have achieved a much better situation than we had at the last stage of the Bill. I congratulate them on that. I support them in principle, although I have reservations on the detail.
My Lords, I am grateful for the government amendments. I noticed that when moving them the noble Lord, Lord Bach, mentioned recent events. Was he referring to the problems with the computers of the national air traffic control which occurred last Saturday? That may have caused some of your Lordships some inconvenience. It certainly caused me a six-hour delay in taking off on an internal flight within this country. Is the noble Lord able to say anything about the causes of those problems and whether they had any connection, however tenuous, with terrorism?
My Lords, I am concerned that one of the serious aspects of life in Northern Ireland is the banishing of families. At the moment, I am glad to say that that is peculiar to Northern Ireland. But it has a terrible effect on a whole group of people.
Does the Minister consider that new subsection (1A)(d) of the government amendment covers that point? If not, I should like to talk to Members on my Front Bench and possibly bring forward an amendment at a later stage. If the Bill already covers that issue, obviously I shall not press it further; but I am concerned about it.
My Lords, I had not intended to intervene on this amendment. The noble Lord, Lord Beaumont of Whitley, referred to new subsection (1A)(c) which deals with endangering a person's life. That leads one to suppose that a hunger strike could be interpreted as terrorism. When he replies will the Minister confirm whether or not that is so?
My Lords, this is not a Bill in which I have taken an interest so far. At this stage, I do not declare a pecuniary interest, but very close to where I live is the site of the Huntingdon Life Sciences Company. The Minister will be aware that there has been an almost permanent gathering of people squatting at the gates of that company. They have been terrorising--and I use my words and not those of anybody else--the staff of that company.
Recently that has been taken a further stage and a new phenomenon has arisen in terms of terrorising people. Nowadays, people visit Companies House and they obtain lists of shareholders in particular companies. If a view is taken that, for one reason or another, there is a philosophical objection to the purposes and objectives of the company and the business with which it is involved, those shareholders are terrorised. That may be done through a written letter or, worse, things may be put through their letter boxes or their cars burned.
There may be direct action taken at the gates of a company. The staff of the company may be terrorised by being shouted at or worse; there may be physical damage to property or people's possessions. Even worse, harm may be done to the staff or shareholders of the company. Is such action encompassed within Amendment No. 1?
My Lords, I too support the government amendments. They are a vast improvement on what had gone before. In particular I note that subsection (1)(b) contains the two little words "or threat". I presume that, by implication, that includes the retention of the means of making a threat valid and effective. Therefore, the retention of arms and munitions falls within the scope of that provision.
There are other minor issues which one could raise but I wish to give broad support to the government amendments.
My Lords, the Government have recognised that there was a problem with the phrase relating to serious violence against persons and property and they have now split that so that the Bill deals with "serious violence" against persons and "serious damage to property".
But on the last occasion on which we discussed this matter, it was pointed out that the phrase "serious violence" occurs only in Section 60 of the Criminal Justice and Public Order Act 1994. There has been only one case brought under that provision which did not turn on the definition itself. Therefore, the courts will have to start with a blank sheet of paper in interpreting what "serious violence" against persons means; and the same is true, pari passu, of "serious damage" against property. I believe that we are placing an unfair burden on the courts in not spelling out exactly what we mean by either of those phrases.
However, I draw attention to another problem which struck me when I was reading Amendment No. 49. As the Minister pointed out, it makes offences under the Computer Misuse Act 1990 subject to the special provisions of Part VII of the Bill which provides for non-jury trials on account of the fact that the offences are terrorist-related. Those offences are unauthorised access to a computer either by itself or with a view to committing a further offence, and unauthorised modification. Therefore, that would cover, for example, pure hacking or hacking for the purpose of damaging the computer system, the transmission of a virus, or the use of computers for the purposes of the financial rackets, to which the noble Lord, Lord Cope, referred in Northern Ireland.
Can the Minister tell us whether the Bill catches only people who commit those offences within the Province? Computer hacking and computer interference may be committed from anywhere on the globe. Someone may have the intention of using computers for terrorist-related purposes in Northern Ireland but would not be physically located there. Would the provisions of Amendment No. 49 come into play only if the alleged offender was within the territory of Northern Ireland?
My Lords, I, too, was not going to take part in this. However, I am worried and curious about this amendment, which is in danger of being a catch all amendment. It is rather like that wonderful old phrase in the Army,
"prejudicial to good order and military discipline".
It seems that almost anything, with a certain amount of imagination, can be described as terrorism. I completely understand the difficulty which everybody is in. Terrorism has to be defined. We all recognise it when we see it but, if we are not careful, the definition will be too wide. Perhaps I may leave that view with the Minister. It is a dilemma in which I find myself.
My Lords, I am extremely grateful to noble Lords, as are the Government, for the assistance we have had in attempting to get right this difficult definition. As has been said, it clearly is not an easy task and there are dangers both ways in attempting to do so.
Some noble Lords gave almost unqualified support to our new definition. We are grateful to the noble Lord, Lord Cope of Berkeley, for what he said both on behalf of himself and of the noble and learned Lord, Lord Lloyd of Berwick, who was good enough to correspond with my noble friend yesterday and say that he was satisfied with the new Clause 1. That is an important consideration for noble Lords, if one bears in mind the expertise and experience of the noble and learned Lord in this field.
The Government are comforted by the fact that noble Lords around the House feel that this is an improvement--perhaps even a big improvement--on the stab we made at it in the original Bill that came to this House.
A number of questions have been asked which I shall do my best to answer. The noble Lord, Lord Monson, asked about hunger strikers or the terrorist risking blowing himself up. That point was also made by the noble Lord, Lord Beaumont. We do not believe that that would be covered. It would not, by reason only that such a person endangered his own life, fall within what we believe is the obvious sense of subsection (1A)(c). That person would also have to put the public at risk.
The noble Lord, Lord Hylton, asked a question about recent events which we were all sorry to hear caused him such inconvenience last weekend. The answer to his question as to whether we believe that was linked with terrorism is no. The recent events are apparently considered to be related to that famous animal, "The love bug", which the House knows about. There was no direct connection because there was not believed to be a terrorist motivation. However, considerable thought has been given to the reality of the difficulties last weekend.
The noble Baroness, Lady Park, asked a question about banishing families. A threat of violence may well be involved, coupled with a political motivation. We believe that banishing is caught by the provisions. I hope that that goes some way to satisfying her concern.
The noble Baroness, Lady Blatch, asked about matters close to home. We are aware of a campaign being conducted by animal rights supporters against Huntingdon Life Sciences Company and the criminal activities of a small minority directed at the employees and shareholders. As the noble Baroness will understand, this is an operational matter for the police. They, together with the courts, have the full support of the Government in dealing with those responsible for criminal acts.
Whether that is covered by this definition depends on the nature of the attack. If serious violence was used, the public was put at fear and the motivation was religious, political or ideological, I can tell the noble Baroness that it could be caught by the provisions set out in Clause 1 of the Bill.
I turn to the noble Lord, Lord Avebury, and his concern about the definition of the word "serious" connected with the word "violence". It seems to us that this is not a real problem. The noble Lord, Lord Avebury, is surrounded by noble Lords who have no doubt summed up to juries on the meaning of grievous bodily harm, a phrase used in the Offences Against the Person Act 1861. If I remember rightly, judges will sum up grievous bodily harm as meaning really serious bodily harm. There seems to be no difficulty with the courts defining grievous bodily harm, although it is almost lost in the mists of antiquity. I do not believe there will be any problem in sorting out serious violence from what is not serious violence. Magistrates and juries do it every day of their lives.
Perhaps I may reflect on the second point raised by the noble Lord, Lord Avebury, and write to him.
We have had a fairly brief debate on this important issue. The Government are grateful for the support they have received. We know that this is not necessarily the end of the story. However, we believe that we have gone a long way towards satisfying the House.
My Lords, before the Minister sits down perhaps I may raise one point. We are all grateful to the Minister for his lengthy and considered reply. However, would he not agree that a hunger strike is a threat of action designed to influence the Government which endangers a person's life? The Minister has not had much time to consider this point, which was raised by the noble Lord, Lord Beaumont of Whitley, and myself. I wonder whether he would agree to look at it again between now and Third Reading and possibly come back to us at that point.
My Lords, before the Minister sits down, perhaps I may ask for clarification. I thank him for the detailed answer he gave about the staff of Huntingdon Life Sciences Company. As I understand it, the Minister said that where serious violence or the threat of serious violence caused distress to the public, it would be caught by the measures contained in Amendment No. 1. Can the Minister tell us whether, for the purposes of Clause 1, members of staff are members of the public?
My Lords, I hope I was careful in the phrase I used. "If serious violence was used and the public was put at fear" was the expression I used. That includes members of staff. But it must be remembered that the motivation of those who put people at fear and use serious violence must be either religious, political or ideological.
moved Amendments Nos. 3 and 4:
Page 1, line 13, leave out ("subsection (1)") and insert ("this section").
Page 1, line 18, at end insert (", and
(d) "the government" means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.").
On Question, amendments agreed to.
[Amendment No. 5 not moved.]
Clause 3 [Proscription]:
moved Amendment No. 6:
Page 2, line 25, at end insert--
("(6) In exercising his powers to proscribe organisations under subsection (3), the Secretary of State must take into account the activities of any organisation engaging in terrorist activities (as defined in this Act) in countries other than the United Kingdom.").
My Lords, we have just had an interesting debate. But one point worries me in relation to this Bill, which I strongly support. The Bill has evolved from our experience of dealing with local terrorism during the past 30 years, both through legislation and sophisticated intelligence. But the world of terrorism has expanded and become equally sophisticated. In fact, the danger from terrorism today to this nation is considerably more than it was 30 years ago.
As I understand it, this Bill is an attempt to further assist the authorities in preventing terrorism and protecting the people of this country from terrorist atrocities. I do not want to see two classes of terrorism in the Bill. But I want to ensure that there is adequate cover to deal with, and be ready for, the international terrorist.
I hope that the Minister will say that Amendment No. 6 is already covered in the Bill. But I should like to be reassured that in the proscribing of organisations in Schedule 2 there is a bounden duty on the Secretary of State of the day to take note of terrorist organisations which are known throughout the world, which are active in other parts of the world, and which are occasionally listed by other governments, and to make the necessary decisions in the light of that serious appraisal. I beg to move.
My Lords, I support the amendment. If we expect other countries to co-operate fully in the elimination of terrorism worldwide, we in the United Kingdom must transmit to foreign governments and foreign courts that we are clear-headed about the control of terrorism in our own territory and reassure them that we will co-operate with them in their efforts to eliminate it.
My Lords, it occurs to me that this amendment may not be entirely necessary. I say that because this country ratified a whole number of international covenants attempting to deal with international terrorism. Also, it would be impossible for the Secretary of State to list every organisation which has been involved in terrorism at some time or other and in some part of the world or another. The situation changes frequently and the list would quickly become out of date. That is my view.
I want to make a point that was mentioned in a previous debate; that is, that we are in a murky area when we focus upon acts of terrorism (as defined in the Bill) committed outside this country. One need only think of the ANC during the years of apartheid. Some of my best friends may be regarded as having been guilty of terrorism when they were struggling against the dictatorship of apartheid and found it necessary, with ideological or political motives, to engage in acts which fall within this definition.
I pity the Secretary of State who, at some future date, may have to decide whether or not to add a foreign body, perhaps regarded as freedom fighters by some and terrorists by others, to the list. I can see that, even if we do not accept this amendment, there will be that kind of pressure on future Home Secretaries. I say simply that we are getting into murky waters, though that may be inevitable when one has a Terrorism Bill with extra-territorial scope.
My Lords, one does not need to go back in the past to the activities of the ANC to recognise where the difficulties mentioned by my noble friend arise. An example that occurs to me is the Sudan People's Liberation Army. We have dealings at an unofficial level with the SPLA. It is part of the process intended to lead to peace in Sudan between the government and the opposition, which has been demanding self-determination in the south. We have a certain amount of sympathy with those in the south who do not wish to be ruled by a fundamentalist and fanatical regime in Khartoum. Therefore we would not like to see such an organisation proscribed.
I should like to know more about the way in which the powers are to be exercised. I can think of other organisations which we would like to have considered by the Secretary of State which are involved in acts of terrorism overseas with which we do not sympathise and where, in this country, the organisation is involved in fund-raising and the soliciting of support of a political kind. An example I gave at an earlier stage was the Liberation Tigers of Tamil Eelam. Everybody knows that they collect money in this country. They have an organisation which explicitly claims to be a branch of the LTTE in London. They go round Tamil businesses asking for protection money. They make threats saying that people must subscribe to their cause. Obviously if we taxed them directly about it, they would say that they were collecting the money for the victims of war. One would have to go behind the collections to see what route the money took to produce the flow of weapons which undoubtedly sustains the conflict in northern Sri Lanka.
So there are circumstances where it could be argued that the powers could be used to proscribe an organisation, and that we would be fulfilling our duty to combat international terrorism in that way. But there are other cases where the power should not be exercised because of the political situation in the country where acts which could fall within the definition of this Bill might be committed. I am therefore not entirely happy about leaving a power of this kind in the hands of a Home Secretary who can say in any specific case whether or not an organisation should be proscribed. He would have been given no guidelines by Parliament; in fact, he would have a perfectly free hand as to how proscription was to be carried out.
Obviously, if it was the present Home Secretary, one would be quite happy as to the way in which the power would be exercised. But he will not be there for ever. This legislation will still be on the statute book when an entirely different government come into power. We do not legislate for the exercise of power by the people who are in office at the moment; we have to imagine that at some future date a far more authoritarian government might come into power who would have no sympathy with liberation movements overseas. That is why, to make the power as broad as it is in this Bill and not to place any restrictions on the exercise of it by the Secretary of State would be rather dangerous.
My Lords, I agree with the noble Lord, Lord Avebury, in the two instances he has given. As often happens, it is a question of one man's terrorist being another's freedom fighter. Nevertheless, I hope that some way will be found to recognise that we might have to take such action on new splinter groups of the IRA in the Republic of Ireland, which is another country. It is a problem which needs to be addressed. I agree entirely with the noble Lord on the other instances that he has given.
My Lords, we are worrying about the question of definition. Like the noble Earl, Lord Onslow, I was brought up to believe that the English language is the richest language in the world. If we cannot define something, no one else can.
Historically, there has been a strange change in the world. At one time we had enemies which were countries and military mights. Suddenly, those enemies were replaced with words ending in "ism"--fundamentalism, communism, terrorism. It would be very helpful to me if someone could define the difference between a terrorist and a freedom fighter.
If one analyses the history of the Commonwealth, one finds that a very large proportion of the Commonwealth entered into a period of what may be defined as "terrorism", when the military were sent in to stabilise a situation, the key terrorist or freedom fighter was arrested, locked up for a while, let out, in democratic elections became head of state, and then appeared on the Commonwealth Christmas card.
For those of us who have come across the Baader-Meinhof, the Brigate Rosse, the Shining Path, it is a matter of definition, but we seem always to end up with the word "fundamentalism". We seem to be seeking an enemy, but we need a definition. The definition used to be available through the Foreign Office. It was able to tell us the countries in which acceptable or unacceptable organisations existed. I am afraid that in British political history we have been as duplicitous as everyone else. One day someone is a terrorist, the next day he is an ally. It is the difference in definition of "freedom fighters" and "terrorism" which causes me concern.
If it is not possible to incorporate it in the Bill, perhaps the Minister would be kind enough, if I write to him, to list the world organisations which the Government currently regard as terrorist and those which they currently regard as freedom fighters.
My Lords, I am not sure that we would necessarily want to receive such a letter. As your Lordships are well aware and as the noble Lord, Lord Glentoran, has pointed out, this Bill provides for the first time the power to proscribe organisations concerned in terrorism other than that connected with the affairs of Northern Ireland. Throughout the whole process of this Bill your Lordships have quite rightly taken a very detailed interest in this proposal and have sought to examine in detail the Government's intentions in relation to its use.
I do not believe that anyone has been more assiduous in this endeavour than the noble Lord, Lord Glentoran. Not only did he raise this issue in Committee on 16th May (Official Report, cols. 250-253) but he has also asked a series of detailed parliamentary Questions on the subject, which my noble friend Lord Bassam answered on 5th June (Official Report, WA cols. 121-122). My noble friend has again highlighted the issue by proposing this amendment today.
Throughout the passage of the Bill we have said, first, that, we are considering which organisations concerned in international terrorism should be added to Schedule 2 and, secondly, that final decisions as to the content of the first order adding international terrorist organisations to Schedule 2 will not be made until the power to make the order is in force. That is because we need to take full account of the circumstances obtaining at that stage--in particular the security assessment.
I am happy to reassure the noble Lord, Lord Glentoran, that, in exercising his powers to proscribe organisations, the Secretary of State will, of course, take account of all relevant information, including information available to him about organisations engaging in terrorist activities, as defined in this Bill, in countries other than the United Kingdom. I cannot go further than that. The effect of the noble Lord's amendment is that the Secretary of State will be obliged to consider every organisation throughout the world, which nobody would necessarily consider to be sensible. It is important, however, that I should give a reassurance about including information available to him concerning organisations engaging in terrorist activities in countries other than the United Kingdom.
With regard to the point made by the noble Lord, Lord Lester, we recognise that these are, in his description, "murky waters". We fully support people's right to peaceful protest, where there may be an oppressive regime at home. At the same time, however, we cannot allow the United Kingdom to be a safe haven for terrorists. In this respect, balance is very important.
We have provided a number of safeguards, one of which is that the Attorney-General's consent would be required to prosecute any international cases. We fully recognise the sensitive issues which arise in relation to international cases. We agree that everyone has his own views on who should and should not be proscribed. The Secretary of State will have to consider cases very carefully. His order will have to be approved by an affirmative resolution procedure before anyone is proscribed.
In the light of the reassurances that I have given, I trust that the noble Lord will feel able to withdraw his amendment.
My Lords, I thank the Minister for his detailed explanation. I have also heard what noble Lords from the Liberal Democrat Benches have said. In the world in which we are now living, I feel that we can all trust our Home Secretaries of the day, from whatever party, to do what is right so far as terrorism is concerned. I beg leave to withdraw the amendment.
My Lords, in moving this amendment, I also speak to Amendments Nos. 7 to 10 and Amendment No. 31, which is consequential.
The purpose of this group of amendments is to provide for the possibility of an appeal against the making of a proscription order. As the Bill now stands, an organisation which believes that it has been wrongly proscribed has to go through a wholly artificial process of applying for a deproscription order. If that order is refused, it can go through the appeal process to the proscribed organisation's appeal committee and, on a question of law, can to go a higher court, and indeed ultimately to the House of Lords.
As the Bill now stands, if the appeal succeeds and as a result the organisation is deproscribed, any conviction for membership of that organisation and any forfeiture order made before the date on which the Secretary of State refused to deproscribe stands. So indeed does a conviction or order made where the urgency procedure under Clause 122(5) is used but the order lapses because it is not approved by both Houses of Parliament within 40 days.
This creates a wholly irrational and improper legal situation. It means that even if, on the appeal against the Secretary of State's deproscription order, the appeal committee decides that the organisation ought never to have been proscribed in the first place, a conviction or forfeiture order made as a result of the proscription order would still remain valid.
I introduced an amendment on the same subject at Committee stage which would have deferred the coming into force of the proscription order. I accept that that is not the best way of dealing with it. There may well be cases in which a proscription order should come into effect immediately. If that is not done, there is every likelihood of property disappearing before anyone can lay their hands on it, and there may be very considerable delays if the organisation fully exploits the possibility of delaying the procedure for appeals.
The present amendment does not suspend the operation of the proscription order. However, it does provide for an appeal. As a consequence, if the appeal is allowed, or if the order falls because the urgency procedure has been used and the order is not approved within 40 days, the conviction or forfeiture order made in reliance on that proscription order is automatically quashed and ceases to have effect.
It is surely absurd that a conviction or forfeiture order would be allowed to stand even though the proscription order has been made unreasonably or on the wrong legal basis. Further, the absence of any appeal provision for proscription orders is plainly in breach of natural justice. An organisation is being criminalised without being allowed to be heard in its own defence. I suggest that the fact that this artificial procedure of applying for a deproscription order is possible is no defence to the original breach of the right to natural justice. If an order is allowed to come into force before there is a decision on appeal, I see no reason for the Government to object to conferring a right of appeal against the original proscription order and many reasons why they should allow it. I beg to move.
My Lords, my name has been attached to these amendments and, therefore, I should like to add a few words to what my noble friend has said on the question of legislative method. When the Human Rights Act comes into force on 2nd October of this year, all existing and future legislation, including this Bill, must, as far as is possible, be read and given effect to in accordance with the rights contained in the European Convention on Human Rights.
I should declare a professional interest here. As I am still in practice at the Bar, I suppose that I shall earn money arguing cases under the Human Rights Act. However, if it is possible to persuade the Government to make it fit on the face of the Bill, I should be happy not to earn my living by making this Act fit with convention rights. It seems to me to be in the interests of legal certainty and proportionality, if not in the interests of the legal profession, for us to get the Bill right at this stage.
My noble friend Lord Goodhart referred to natural justice, which is embodied in Article 6 of the European Convention on Human Rights. Thus there is European natural justice, as well as good old English natural justice. I believe it to be desirable to introduce a right of appeal for all the reasons given by my noble friend but, additionally, so as to avoid unnecessary conflict with convention rights. The last thing I should like to see is a court having to grant a declaration of incompatibility under Section 4 of the Human Rights Act because it was found impossible to read and give effect to Clause 5 in accordance with convention rights. I very much hope that those considerations will be taken into account, as well as those outlined by my noble friend Lord Goodhart.
My Lords, it is most generous but characteristic of the noble Lord, Lord Lester, to give up the opportunity of earning legal fees by pointing out that such a problem might arise and might ultimately come before the courts. I have some sympathy with the case put forward by the noble Lord and his noble friend. If these appeals are likely to arise in any event through an attempt to be deproscribed--presumably that can start immediately after the organisation concerned has been proscribed--it might be wise to provide for an appeal procedure in the first place.
However, my caution in this respect arises from the fact that I do not wish to see a situation where some causes which in many cases are deeply offensive to people in this country give rise to a proscription being introduced in respect of a terrorist organisation. That, in turn, could be used as an excuse for an appeal hearing in which the terrorists or their representatives from overseas argue their case in this country in an attempt to justify their actions and thereby gain support. The Secretary of State and the Government could be placed in an awkward situation if we moved forward in the way suggested. But perhaps it is inevitable, given the appeal against a deproscription refusal and the background of the human rights legislation to which the noble Lord drew our attention. It is a dilemma.
My Lords, since our discussions on this part of the Bill in Committee, the Government have reflected further on the whole area of proscription. We have concluded that the Bill is right as it stands. I am happy to explain why this is the case, but I should say at the outset of my remarks that we remain unable to accept these amendments. There are two key proposals in these amendments: first, that the Bill should allow for a straight appeal against proscription, as opposed to an appeal against a refusal to deproscribe; and, secondly, that a safeguard should be built in against the abuse of the urgency procedure.
Perhaps I may begin with the issue of appeal against proscription. As my noble friend Lord Bassam said in Committee, the system in the Bill has the advantage that, on receiving an application to deproscribe, the Secretary of State may choose to do so. That would avoid the need for a costly and perhaps lengthy appeal hearing. In explaining how we have arrived at the application, refusal, appeal process, I must emphasise that we are not starting from a blank sheet of paper. In Schedule 2 we have a list of organisations that are already proscribed and in some cases have been proscribed for many years.
However, let us suppose that one of those organisations--perhaps rightly proscribed in the mid-1970s--were to turn away from terrorism at some point in the future. It could happen. In such a case, as my noble friend Lord Bassam said in Committee, an appeal against proscription would not produce the right result because the decision to proscribe was right at the time that it was made. The advantage of the system in the Bill is that the application requires the Secretary of State to make a fresh decision based on the up-to-date situation. It is his assessment at that point in time that is to be reviewed by the commission if the Secretary of State decides to refuse the application.
In recognition of that line of argument, the noble Lord, Lord Goodhart, said in Committee that there might be a time limit of between 14 and 28 days from the initial proscription during which the relevant organisation could appeal. That would not be helpful to any organisation which was concerned in terrorism when it was proscribed but which, more than a month later, changed its spots. In particular, it would not work at all for any of the organisations already listed in Schedule 2. Therefore, for those two categories we would have to retain the system of application, refusal and appeal against refusal for them. That would mean ending up with two parallel systems. As has been observed, the drafting of one system is already complex. Therefore, the drafting of two systems would greatly multiply those complexities. More importantly, as the additional system would work only for newly-proscribed groups, we would not be treating in the same way those organisations already included in Schedule 2 and those to be added to it at a later date. We see it as important that all organisations should be treated in the same way under the Bill.
I have mentioned two practical reasons why we do not favour an appeal against proscription. We need to be able to deal with organisations that change their spots, so we need the application/refusal regime; and we need to treat all organisations in the same way, whether they are already listed in the schedule or are newly proscribed under the Bill. All groups should have the same avenues of appeal open to them. However, we reject the noble Lord's proposals, above all, because we believe them to be unnecessary.
A power to proscribe organisations has been on the statute book in its present form for over 25 years. The Bill adds the important safeguard of the application, refusal, appeal mechanism. Any organisation in Schedule 2 can apply for deproscription at any time and can, under the system in the Bill, ultimately be deproscribed. That in itself is an effective remedy as far as the organisation is concerned.
Of course there are further spin-offs of a proscribed organisations appeal commission (POAC) decision in an organisation's favour. Clauses 7, 8 and 29, together with paragraphs 10, 24 and 40 of Schedule 4, make provision for the consequences of a finding that the Secretary of State's refusal to deproscribe was unlawful. Such a finding means that on the date of that refusal the organisation should not have remained proscribed. It does not say anything about the lawfulness or otherwise of the original proscription of the organisation, or about the standing of the organisation before the refusal to deproscribe. Clause 7 therefore provides only that convictions relating to activity on or after the date of the refusal can be overturned.
But the purpose of Clause 7 is not to signal that if you, as an individual, believe that your organisation should not be proscribed, you may carry on participating in the organisation's activities, in the hope of eventually getting the benefit of Clause 7. On the contrary, if an order proscribing the organisation has been made, the organisation is proscribed. You should dissociate yourself from the organisation, irrespective of the progress of any application or appeal.
For these reasons, we see no need to provide for an appeal against proscription. The system of application, refusal and appeal treats all terrorist organisations the same: those that are already proscribed and any that may be proscribed in future. It is there to give organisations an effective remedy. It is not there to excuse those who choose to break the law.
Perhaps I may turn now to the urgency procedure. I must first emphasise that this procedure is a necessary feature of the regime. Most of the entries which have been added to the list in recent times have been added using it. When a bomb goes off and is claimed by an organisation, an immediate proscription using the urgency procedure order immediately gives the police a valuable tool in pursuing the perpetrators and bringing them to justice. It is also an important way for the Secretary of State to express, in a very tangible way, society's abhorrence for that organisation's methods of pursuing its objectives (although the objectives themselves may be perfectly legitimate, of course).
The noble Lord, Lord Avebury, suggested in Committee that the urgency procedure could lead to injustice because it would be possible to proscribe an organisation at five minutes' notice without the knowledge of the members of that organisation. This is a misunderstanding of the position.
As your Lordships know, it is a general legal principle that, although ignorance of the law is not a defence, the law should be available to the citizen. So it would be quite wrong to make an order at 10 a.m. coming into force at 10.5 a.m. The right thing to do would be to provide for the order to come into force the next day. This will give time for the Government to publicise the proscription (which after all, is part of the reason for having the power) and to allow people to dissociate themselves from the organisation or to cease to participate in its activities.
This has been the procedure in the past and I can assure your Lordships that this Government will continue to follow this approach in future. There is no question of using the power to "round up" people on the basis that they did not know that the organisation was proscribed. To return to a suggestion that was made in Committee, I do not therefore see any need to add the word "knowingly" to the membership offence.
Subsection (5A) in Amendment No. 10 proposes that convictions should be annulled if an organisation is proscribed by the urgency procedure but Parliament withholds its consent--a point which was raised by the noble Lord, Lord Avebury, in Committee. We have considered this matter carefully and we do not agree that such provision should be made.
Once the Secretary of State has proscribed an organisation, membership of the organisation, fundraising for the organisation, and so on become criminal offences. Whatever happens when Parliament debates the order, for those 40 days that is the law, and we expect people to obey it. Every individual has choices to make. In the circumstances we are discussing, a member of the organisation has to decide whether to break the law or observe it. We do not think that it is too much to expect of an individual that he observe the law during those 40 parliamentary sitting days.
It is true that if the organisation is removed from Schedule 2 by virtue of Clause 123(5)(b), a convicted person will not get the benefit of Clause 7. So a person cannot go on participating in the organisation's activities in the hope of appealing successfully and ultimately getting the benefit of Clause 7. But it is right that this should be the case.
When the urgency procedure is used, it is right that Parliament should have the option of withholding its consent so that the order falls. From the point of view of the organisation that must be an acceptable outcome.
But Parliament can and must be able to withhold its consent for any number of reasons. It follows that a failure of Parliament to endorse a proscription order is not the equivalent of a POAC ruling in the organisation's favour. In particular, it does not necessarily mean that at any time the organisation should not have been proscribed. From the point of view of the individual convicted of a proscription offence, therefore, the analogy with the POAC process breaks down.
In the POAC scenario there is a finding that the refusal to deproscribe was flawed. In the urgency scenario there is no comparable finding. In both cases we consider that the individual has chosen to break the law, but we recognise that where POAC has made a favourable determination, convictions should not necessarily stand.
It has been suggested that this power could be abused. It is a very heavy power. We have acknowledged this repeatedly and we make no apology for it. But for the reasons I have given, we believe that the urgency procedure, in the form proposed in the Bill, is necessary. We believe that the safeguards we have provided are correct and sufficient; and so, through the Bill, we are asking Parliament to trust the Secretary of State with this powerful tool in the fight against terrorism.
The Bill before your Lordships this afternoon is an important Bill and proscription is an important power. The amendments which have been tabled have probed the workings of this power in detail, and have caused us to think long and hard about whether we have the detail right. The Government believe that the drafting of these powers and procedures is right. I apologise for the length of my reply but the issues raised by the noble Lord, Lord Goodhart, are important. In the light of the explanations I have given, I sincerely hope that those noble Lords who have tabled amendments will agree to withdraw them.
My Lords, I found the noble and learned Lord's reply extremely depressing and unsatisfactory. I do not think that any of his arguments supported the position which he has taken. First, he said that the fact at present that you have to apply for a deproscription order means that the Secretary of State may change his mind, decide to make a deproscription order, and that that makes the procedure cheaper and simpler. Where an appeal is allowed, if the Secretary of State comes to the conclusion that he ought not to have made the order in the first place--perhaps as a result of new evidence which is shown to him--it is perfectly possible for him to indicate that he would not oppose the appeal. If he does so, any additional costs of the appeal would be absolutely minimal. Therefore, I do not see that there is any substance in saying that this procedure is cheaper.
Secondly, it is said that the appeal against a proscription order would not be appropriate because it would create two parallel systems and a multiplication of complexities. This is simply not true. The legislative complexity will be minimal, as seen from the fact that the amendments which I have drafted, and which I believe would be adequate for the purpose, take up no more than a few lines of text. So far as procedure is concerned, there is no reason why any different procedure should be followed before the POAC in the case of an appeal against the original proscription order from the procedure which would be followed in the case of an appeal against a refusal to deproscribe.
Thirdly, the noble and learned Lord said that it was appropriate for all organisations to be treated in the same way. That, again, seems to me to be a wholly irrelevant issue. The fact is that we have a number of organisations which have been proscribed, which could have appealed against a refusal to deproscribe, and have not done so. It seems to me that that is no argument whatsoever for depriving any future organisations which may be proscribed of the right to appeal against a proscription order.
Finally, and particularly, the noble and learned Lord said that this amendment was not necessary because the right to apply for deproscription was a sufficient remedy.
There is also the question that proscription orders are now likely to be made against organisations whose main focus of activities is overseas. Those activities perhaps will be less familiar to the authorities in this country than the activities of those organisations which take part in terrorism in Northern Ireland, and therefore a more extensive look at the evidence may well be extremely important.
It seems to me there is a real difference of substance between a "change of spots" case and a case where an organisation should never have been proscribed in the first place. The present procedure will require an organisation, by applying for a deproscription order, in effect to admit that it was a terrorist organisation in order to be released from proscription.
I am very tempted to seek to divide the House on this important issue. The Government have been wholly unable to produce any convincing arguments to support the refusal of an appeal, with all that that means in terms of natural justice. However, this is something which can and probably will be dealt with under the Human Rights Act--if a case arises. I am therefore prepared to leave the Government to face the consequences of the Human Rights Act. With great reluctance, I beg leave to withdraw the amendment.
My Lords, at Committee stage we objected to paragraph (c) of Clause 12(2) and paragraph (b) of subsection (3). Of these the more important of the two was subsection (3)(b), which provided that a person committed an offence if he addressed a meeting and knew that the meeting was,
"to be addressed by a person who belongs or professes to belong to a proscribed organisation".
That would have made it an offence for a person to address such a meeting, even if his or her reason for addressing the meeting was to express their fundamental opposition to the activities of the proscribed organisation. For that reason I welcome, without reservation, government Amendment No. 12, which removes subsection (3)(b) and renders unnecessary my Amendment No. 13.
However, that still leaves subsection (2)(c), and we have some concerns about that. I have no objection to providing that it is an offence for a person to arrange a meeting to support a proscribed organisation or to further the activities of a proscribed organisation. However, the question of making it illegal to arrange a meeting which is to be addressed by a person who belongs or professes to belong to a proscribed organisation is something which one needs to look at very carefully.
In subsection (4) a "meeting" is defined as,
"a meeting of three or more persons, whether or not the public are admitted".
So potentially one is not looking at a public meeting but simply a meeting of a group which has been called for a specific purpose and for some discussion.
But what would happen if, let us say, an organisation in this country were to arrange a meeting here between the Tamil Tigers organisation--assuming that it had been proscribed--and the Government of Sri Lanka, with a view to trying to settle the violence, the civil war effectively, in Sri Lanka? It would be most inappropriate if the arrangement of any such meeting were to be treated as a criminal offence. The Government may wish to say that a round-table conference of this kind does not involve anyone addressing a meeting--that it is a matter of discussion--but I have difficulty seeing that as a certain defence to a prosecution under the subsection.
It seems to me that Clause 12(2)(c) is still potentially objectionable because it covers meetings arranged for wholly praiseworthy purposes. I shall be interested to hear what the Minister has to say. I beg to move.
My Lords, I support government Amendment No. 12 for the reasons already given. It is somewhat better drafted than the Liberal Democrat Amendment No. 13, and no more needs to be said about that.
I also strongly support the noble Lord, Lord Goodhart, in regard to Amendment No. 11. It is funny to think that if this Bill had been enacted in its present form 30 years ago, the long arm of the law might have descended on the shoulders of certain Cabinet Ministers--both Labour and Conservative--during all their cosy, secret chats with the Provisional IRA in Downing Street and elsewhere.
On a more general point, is it not a good thing that terrorists, or apologists for terrorism, should be encouraged to try and justify themselves in front of a sceptical or hostile audience? If the audience in question were not sceptical or hostile but supportive and enthusiastic, then the organisers of the meeting would be caught by subsection (2)(a) and, in certain circumstances, by subsection (2)(b) as well. So there is no danger on that score.
For that reason, and the reasons advanced by the noble Lord, Lord Goodhart, I hope that the House will support the amendment.
The marginal note to Clause 12 is "Support". The whole thrust of these offences--which are punishable on conviction on indictment by a term of imprisonment not exceeding 10 years--is that in some way they are to do with supporting terrorism. We welcome what has been said and the fact that the Government have decided to delete Clause 12(3)(b)--no doubt because they appreciate, on consideration, that someone may be guilty of an offence under that provision without in any way supporting the aims of the proscribed organisation--but exactly the same applies to Clause 12(2)(c). In arranging, managing or assisting in arranging or managing a small meeting, the fact that one knows it is,
"to be addressed by a person who belongs or professes to belong to a proscribed organisation", does not automatically mean that one has any support at all for the aims of that organisation. As the noble Lord, Lord Monson, indicated, one might be utterly opposed to everything that organisation stands for. Therefore, surely logic and principle suggest that symmetry and consistency should be demonstrated in the Government's approach. Given the decision to delete Clause 12(3)(b), one must ask what on earth is the reason for keeping in place Clause 12(3)(c).
Finally--I promise that I shall not repeat this too often--it seems to me that Clause 12(2)(c), as applied, could create serious difficulties under the Human Rights Act as regards convention rights governing speech and association. I very much hope that the Government will be able to accept the amendment.
My Lords, in the debate on Second Reading I expressed my worries about certain aspects of the Bill. I have many academic colleagues who study terrorism as a subject. Much of the knowledge we have acquired about Hezbollah, the IRA, the Tamil Tigers or any other such group is the result of study undertaken by academics, who also make it their business either to meet with representatives of those organisations or, sometimes, to invite them to present a seminar at a university. I can easily imagine my colleagues in the Department of International Relations at the London School of Economics arranging such events.
First, it would be very wrong to assume that my colleagues, by inviting such people to address seminars at the LSE, are in some way sympathising with or supporting the activities of a terrorist organisation. Secondly, unless we allow academics to continue with their work on these rather obscure topics, the Government themselves will have access to far less information about the extent of terrorism. Their own information-gathering systems are insufficient for the task.
A great many academics pursue these topics out of a desire for academic knowledge. It is important that such activities, based on a sincere desire to further knowledge and understanding, should not be stopped. I should not wish to see my colleagues go to gaol.
My Lords, it is not only academics who might fall foul of the provisions of the Bill. Members of your Lordships' House or those of another place might be similarly affected if they undertook meetings for the same purposes.
When considering certain organisations which function only overseas, it must be remembered that those governments themselves engage in dialogue. For example, officials at the Foreign Office held a meeting to discuss Plan Colombia, a £1,600 million dollar programme being launched by the United States in an effort to assist the Colombian Government in combating terrorism and the trafficking of narcotics. One element of that effort is the need to deal with the FARC. That is an armed organisation which opposes the government and controls a large section of Colombian territory. Noble Lords may have seen the details of this in the review section of yesterday's Guardian. A two-page article reported on the so-called Farclandia which is controlled by these terrorists--for that is what they are according to the definition in the Bill. However, they are terrorists with whom the Colombian Government must deal. Over the past few years, President Pastrana has been trying hard to agree a formula of some kind whereby those terrorists can be drawn back into the political process.
Would it not be nonsensical, therefore, to declare that interested parties in this country would be unable to engage in such a process? According to the provisions of the Bill, it would be impossible to invite representatives of the FARC to come here and hold talks with a gathering of MPs or noble Lords to investigate how that peace process might operate and whether the United Kingdom would be able to play a part in it.
The subsection which my noble friend seeks to delete will inhibit the United Kingdom from playing any role in the solution of crises and internal armed conflicts in many other parts of the world.
My Lords, I have been unable to take part in the proceedings on the Bill until now because of my committee work and because I have had to be out of the country.
I should like to express my welcome for government Amendment No. 12, as well as to support Amendment No. 11. In today's world, it is of key importance that we address the challenges of modern conflict resolution. Conflict resolution is all about talking, all about discussion and all about persuasion. Quite clearly, if we do not permit meetings to be held which may be set up in an effort to persuade those allied closely to proscribed organisations away from them, then we shall be heading up the wrong track, leading to even longer conflicts than is presently the case.
My Lords, the noble Lord, Lord Goodhart, was the first to acknowledge that the Government have moved in this area. However, we cannot move quite as far as the noble Lord would like to take us. Having said that, we are of course impressed by the arguments that have been put from all sides of the House.
Perhaps I may deal first with Amendment No. 13, which the noble Lord has intimated that he will not later move because he has accepted government Amendment No. 12. Both amendments seek to remove the offence of addressing a meeting which a person knows is to be addressed by,
"a person who belongs or professes to belong to a proscribed organisation".
We believe that this offence would help to deprive terrorist organisations of the oxygen of publicity, but we also recognise the concerns that have been raised both in this House and in another place, as well as elsewhere. We take those concerns seriously and have decided, after careful thought, to remove the offence from the Bill.
As regards the proposal contained in Amendment No. 11 tabled by the noble Lord, we do not see such a strong case--I am choosing my words carefully--for removing Clause 12(2)(b). We are of the view that the offence of arranging or managing a meeting, knowing that it is to be addressed by a person who belongs to or professes to belong to a proscribed organisation, is qualitatively different from the offence of "addressing" which we have now decided to drop.
The activity of "addressing" a meeting raises issues of freedom of speech in a rather more direct way than that of "arranging" a meeting. At the same time, "arranging" or "managing" requires a positive intention to help the speaker from the proscribed organisation in a way that "addressing" perhaps may not.
That would be the case even if the meeting is to be held predominantly for another purpose altogether. Even if it was known that a member of a proscribed organisation intended to speak on a subject unconnected with the organisation itself, we think that there is a possibility that such a meeting could be hijacked by the member of the proscribed organisation.
I hardly need to remind noble Lords that the point of proscription is to deprive terrorist organisations of any spurious legitimacy which they may claim. We believe that such organisations should not be given a platform. For that reason, people should not arrange or manage a meeting for them to address. We think that the offence should remain in place.
However, we have listened to what the noble Lord, Lord Goodhart, pointed out by way of his example. It is a difficult issue and the Government acknowledge that. We would say that Crown immunity would of course apply and that, perhaps more significantly in this field--it arises elsewhere in the Bill--consent must be given for a prosecution before such a prosecution can be put in train. That decision would lie either with the Director of Public Prosecutions or, as we shall debate later, with the Attorney-General. That is something of a safeguard in response to the example referred to by the noble Lord.
My Lords, that point was made by the Home Secretary in another place. He recognised the threat to free speech posed by this provision, but stated that the safeguard lay in the discretion to be given to the prosecuting authorities, who would exercise that discretion sensibly. Perhaps I may ask the Minister a question. Since we are not dealing here with the oxygen of publicity in the sense of a public meeting, but rather a much smaller form of meeting, surely we run the danger of introducing a feeling of great uncertainty if it were simply left to a future discretionary decision on a very serious criminal offence?
Would it not be more sensible to achieve legal certainty and proportionality now by deleting this provision, thus ensuring that freedom of speech could not be chilled in a way that would clearly breach Article 10 of the European Convention of Human Rights? We cannot leave this to prosecutorial discretion because of that chilling effect. Can the Minister take that into account and think again on the matter?
My Lords, I would say to the noble Lord that the oxygen of publicity--the phrase that is used so often--can apply as much to a small private meeting which "gets out", as it were, into the public world as to an orthodox public meeting.
However, we concede that there is a problem here. We do not want to go as far as saying that to call a public meeting and invite a member of a proscribed organisation should be lawful, but we should like to consider between now and Third Reading whether there is a way round the dilemma which has been set for us by the noble Lord, Lord Goodhart. He talked about, for example, a meeting organised perhaps by HMG here between a terrorist group and a national government of another country, with the sole purpose of trying to bring them together. I think that was the example he gave. I hope he will understand that I cannot promise anything, but we should like to consider the point he has made.
My Lords, has it occurred to the noble Lord the Minister, as it did to me, that perhaps noble Lords on the Liberal Democrat Benches should have proposed an amendment which is rather different from the one they have moved, which would delete the words,
"a meeting of three or more persons" and insert "public meeting", or some phrase to that effect. That seemed to be what lay behind much of their concern.
My Lords, could I ask the Minister to explain why we have no prohibition on talking to the press? Years ago we had such a prohibition on the IRA or other terrorists talking to the press. That was a public platform, and really in the case of this amendment it is very much less of a public platform than appearing on television. Therefore I would still like to see this amendment accepted, whereby such people should be allowed to talk to controlled audiences in the right circumstances.
My Lords, obviously, anything that the noble Viscount says on these matters is taken very seriously by the Government, but I have to say that what the noble Lord, Lord Cope, has suggested as a possible amendment is again something we should like to look at and see whether it could satisfy all parties here, together with the legitimate question raised by the noble Lord, Lord Goodhart, I hope that in the meantime he will feel able to withdraw his amendment.
My Lords, I am of course grateful for what the noble Lord, Lord Bach, has said about the possible reconsideration of Clause 12(2)(c). We take the view that it is acceptable to come back with a more limited amendment. It could be argued that simply removing Clause 12(2)(c) would be too broad. Our intention will be that, to be on the safe side, we ourselves will draft a rather narrower amendment and bring it back for consideration on Third Reading, in case the Government think better of bringing back an amendment of their own. Taking that into account, in the meantime I beg leave to withdraw this amendment.
My Lords, this is a very simple and brief amendment but it raises a very important issue. Clauses 15 to 18 create a number of offences. Basically, those offences are concerned with fund-raising and money laundering for terrorist purposes. Clause 19 requires that anyone who suspects someone else of committing an offence under Clauses 15 to 18 should report their suspicions to the police if those suspicions are based on information which has come to them in the course of a trade, profession, business or employment. Failure to report those suspicions to the police is a criminal offence, punishable by imprisonment of up to five years.
It is obvious that this clause is mainly directed to financial businesses or professions, such as banks and accountants, which are likely to be able to see from the audit of their books or accounts that money has been coming in in circumstances which make it likely that it is for terrorist purposes, or else the money is being laundered. We have no objection to the clause in so far as it affects banks, accountants and so on but, as drafted, this clause extends to journalists as well, and we very strongly object to that. That objection, I believe, is shared very widely by the media. Certainly I have received letters from the Society of Editors and a joint letter on behalf of the BBC, ITN, ITV and Channel 4, objecting to the restrictions on journalism.
I believe there are two reasons why extending Clause 19 to journalism is wrong. First, it inhibits freedom of speech or, as the International Covenant on Civil and Political Rights put it,
"the right to seek and impart information".
The importance of journalism is indeed specifically recognised in the Human Rights Act.
Secondly, we believe that the extension of Clause 19 to journalism will be counterproductive. Investigative journalism can be useful. Press investigation into terrorist fund-raising can be helpful to the Government, but plainly it will be inhibited by this clause. What will happen if the clause is enacted as it stands? No journalists will be prepared to investigate terrorist fund-raising on the basis that they will have to tell the police how they got their story, who it came from and what was said by whom about whom. Journalists may either refuse to pass that information on to the police and risk prosecution under Clause 19 or, more likely perhaps, they will refuse to investigate and report on terrorist fund-raising. Either way, the police will get no useful information.
It is true that Clause 19 allows a "reasonable excuse" defence but the history of decisions in the courts of this country show that protection of sources is not likely to be regarded as a reasonable excuse. I also recognise that Clause 19 is based upon a section of the Prevention of Terrorism Act, which does not exclude journalists. However, we are now replacing that Act with permanent legislation and that gives us a chance to think again. There is no presumption that Clause 19 should be identical with a previous section of an Act.
I believe that the application of Clause 19 to journalists inhibits freedom of speech. I believe that the application of this clause to journalists will confer no benefit on the police or on the Government. They will get no information which they would not otherwise have received. I believe that the application of Clause 19 to journalists does not advance the main purpose of the clause, which is directed to obtaining financial information from banks, accountants and other similar businesses and professions. It is not necessary for the protection of a democratic society. I believe that there is an overwhelming case for excluding journalists from the operation of Clause 19. I beg to move.
My Lords, perhaps I may add a couple of words in support. This is, as my noble friend has said, an extremely important matter. The noble and learned Lord, Lord Falconer, may remember that during the passage of the Human Rights Bill the press made an enormous fuss about the potential threat, as they saw it, in the Human Rights Bill to freedom of speech and freedom of the press. The noble and learned Lord, Lord Falconer, and his colleagues very wisely decided collectively on including a media clause in the Human Rights Act that would give enhanced protection to freedom of speech.
At one stage in my career I acted in a case which challenged the broadcasting ban on Sinn Fein, where we had the conflicting interests of national security on the one hand and freedom of speech on the other. The Law Lords were unable to give direct effect to the free speech guarantee in Article 10 of the convention because it had not been incorporated into our domestic law.
The Government have now incorporated the convention directly into our law and, to quote my old colonel when I was in the Army, I would bet the Bank of England against a blood orange that if there were a challenge in an actual case by journalists under this clause the court would have to re-read this provision compatibly with Article 10 of the convention in the particular case. Again, it means more money for my profession, and it is quite pointless. An exception of this kind achieves legal certainty, proportionality and the freedom of the press without causing any serious harm to any facet of the public interest. Therefore, we very much hope that the Government will accept this modest but crucial amendment.
My Lords, I support the amendment. It is extremely important. As I have often said, I have colleagues who do similar things for the sake of knowledge. That knowledge is useful for society, and even for preventing terrorism. But if, in the course of acquiring it, journalists are to be prosecuted, that will be a great blow.
My Lords, as was explained in Committee, we do not support a specific exemption for journalists from the reporting requirement in Clause 19. The clause replicates an existing provision which in effect makes it an offence not to give information about, for example, fund-raising for proscribed organisations.
As was said in Committee, we fully accept the integrity and professionalism of the journalistic profession as a whole and of individual journalists. But with that integrity and professionalism must also go a degree of responsibility to society. It is a matter, as ever, of striking the right balance.
We believe it is important to retain the old Section 18A of the Prevention of Terrorism Act, and this is the provision now replicated in Clause 19 of the Bill. We regard this as an essential provision of permanent counter-terrorist legislation.
Of course, the Government recognise that the journalistic profession takes its responsibilities extremely seriously. But your Lordships will understand, I am sure, that to provide a specific exemption for journalists would leave a potential loophole in this essential provision. It would also carry a risk of making it easier to launder terrorist finance through press and media companies, a result which I am sure noble Lords would not intend.
I do not accept the accusation made in Committee that our approach shows that we do not understand how journalism works. This is not about how journalism works. It is about how terrorism works.
As has been referred to by the noble Lord, Lord Goodhart, there is the "reasonable excuse" defence in Clause 19(3). That is an important safeguard in relation to this provision. How it will work in relation to journalism is a matter to be decided in each individual case.
Perhaps I may go further in offering reassurances to the journalistic profession as to our intention in the Bill as a whole. We have had various representations from various parts of the media expressing concern that a number of provisions in the Bill will inhibit the legitimate reporting of the media on matters to do with terrorism. These concerns have been expressed not only in the area of reporting requirements, which we have just discussed, but also in relation to the "collection of information" offence in Clause 58 and to the investigatory powers in Schedule 5.
We have been asked on a number of occasions whether anything in the present wording of the Bill is intended to alter the balance between, on the one hand, the vital responsibility of a government to protect their citizens from terrorism and, on the other, the freedom of expression of the media in the reporting on, and scrutiny of, these groups.
The answer is that all the provisions in the Bill which are of particular concern to journalists are directly modelled on provisions in existing legislation. Indeed, Section 18 of the Prevention of Terrorism Act, which is also of concern, is repealed by the Bill. The provisions which are replicated by the Bill will need to be read with the new definition of terrorism in Clause 1, which, unlike that in the existing legislation, extends to all forms of terrorism.
However, I should like to emphasise that, other than ensuring that an equivalent provision is in place to deal with all forms of terrorism, it is certainly not the intention of the Government that anything in this Bill should change the current balance between the freedom of expression that the British media enjoy and the responsibility to assist in combating terrorism. With those assurances, I very much hope that the noble Lord will feel able to withdraw his amendment.
My Lords, before the Minister sits down, perhaps I may ask him two questions. Am I right in recollecting that the noble and learned Lord, Lord Lloyd of Berwick, specifically recommended in his report against retaining this offence in relation to journalism? I do not have the report in front of me but that is my recollection.
Secondly, the Minister referred to the defence of "reasonable excuse". How does that fit with Article 10 of the European human rights convention as interpreted by the European Court of Human Rights in the Goodwin case where the court emphasised that the confidentiality of sources of journalists was fundamental to the freedom of the press? Is it the Government's view that the effect of Clause 19(3) is intended to be that, where the press has confidential sources, that confidence must be upheld and respected by the courts and therefore must constitute a reasonable excuse. If that is not the position, how are we complying with the Goodwin judgment in framing an offence of this character which puts the burden of proof not upon the state but upon the newspaper to prove a reasonable excuse?
This matter is of vital importance to the press because of the chilling effect that it will otherwise have on freedom of speech. It will certainly very much affect my view to know the answers to these questions: first in relation to the noble and learned Lord, Lord Lloyd of Berwick, and secondly, what brief the Minister has in relation to compatibility with the convention rights, especially in regard to the Goodwin case and confidentiality of sources. I am deliberately speaking slowly so that these points may be fully considered.
My Lords, perhaps I may deal first with the point relating to the report of the inquiry into legislation against terrorism chaired by the noble and learned Lord, Lord Lloyd. I do not think that I am in a position to agree with the noble Lord that he did recommend an exception in relation to journalists. I am told that his recommendation was in relation to Section 18 of the Prevention of Terrorism Act. We are not dealing with that section; as I understand it, it has been repealed. So I do not think the position is as the noble Lord recalls it. Perhaps I may write to him on this point.
So far as concerns "reasonable excuse" and its relationship to the Goodwin case, we believe that Clause 19 does not offend against the convention. "Reasonable excuse" is plainly one part of that. It will be one part of the way in which the section operates. I do not know what was the significance of "betting a blood orange", but it seems to us that, looked at overall, including the "reasonable excuse" defence, the clause complies with the convention.
My Lords, I thank the Minister for that reply, but I am still in the dark. The offence is committed if the newspaper does not disclose to the police certain information which has come to the attention of the newspaper in the course of following its profession of journalism. The provision therefore imposes a severe criminal penalty on freedom of expression and in a way that would require the disclosure of confidential information unless there were "reasonable excuse" for not doing so. Respectfully, therefore, I repeat the question. Is it the Government's intention that the confidentiality of sources will be overridden? If so, how does that comply with the Goodwin case?
My Lords, one must look at the whole of Clause 19, including subsection (3). The noble Lord selects the beginning of the clause but does not look at it as a whole or its background.
My Lords, I regret that I have not been persuaded by the response of the noble and learned Lord. He was unable to point to any real reason why the Government or police should obtain a benefit from including journalists within Clause 19. The idea that a loophole will be created by excluding journalists is wholly fanciful. Journalism does not involve itself in money-laundering. Therefore, if nominally a journalist organisation goes in for money-laundering that is not an activity that it undertakes in the course of the trade, profession or business of journalism. That means that it will not be caught anyway under Clause 19 unless a particular organisation can be regarded as carrying on some other business.
Be that as it may, we on these Benches regard Clause 19, in so far as it applies to journalists, as a serious infringement of freedom of speech and the press. That being so, we believe that it is appropriate to seek the opinion of the House.
moved Amendment No. 20:
After Clause 64, insert the following new clause--
("Inferences and forfeiture orders
:TITLE3:INFERENCES: OFFENCES UNDER THIS PART
(" .--(1) This section applies where a person is charged with an offence under this Part.
(2) Subsection (4) applies where evidence is given that--
(a) at any time before being charged with the offence the accused, on being questioned under caution by a constable, failed to mention a fact which is material to the offence and which he could reasonably be expected to mention, and
(b) before being questioned the accused was permitted to consult a solicitor.
(3) Subsection (4) also applies where evidence is given that--
(a) on being charged with the offence or informed by a constable that he might be prosecuted for it the accused failed to mention a fact which is material to the offence and which he could reasonably be expected to mention, and
(b) before being charged or informed the accused was permitted to consult a solicitor.
(4) Where this subsection applies--
(a) the court, in considering any question whether the accused is guilty of an offence under this Part, may draw from the failure inferences relating to that question, but
(b) 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 inferences.
(5) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.").
My Lords, in moving the amendment, with the leave of the House I speak also to Amendment No. 21. The amendment is based on Clauses 108 to 111 which form part of Part VII, relating to Northern Ireland. I propose that the redrafted Clauses 109 and 111 should be inserted after Clause 64.
As drafted at present, Clauses 108 to 111 apply,
"where a person is charged with an offence under section 11".
Clause 11 states:
"A person commits an offence if he belongs or professes to belong to a proscribed organisation".
In the light of that the individual is considered to be a serious terrorist and comes within the provisions of Clauses 108 to 111. For the purposes of the amendment, I speak only to Clauses 109 and 111. Clauses 108 to 111 refer to proscribed organisations and persons belonging to them.
However, terrorism is more than proscribed organisations or organisations which might be proscribed. There may well be individuals who are per se terrorists. They do not necessarily have allegiances or alliances, other than perhaps the odd financial contract, to any of the world's terrorist organisations. Those individuals could be specialists in a specific field. They could specialise in doing extraordinary things on the cybernet. They could be specialists in communication activities of a sophisticated nature. They could be specialist murderers. In any sense of the word, they are terrorists.
I inquired in the Public Bill Office as to how an individual terrorist as opposed to a terrorist organisation could come within the scope of the Bill. It did not appear that he did. Therefore we propose this amendment which inserts the new clause as printed on the Marshalled List--I shall not read it; noble Lords have had the amendment for a day or two--after Clause 64, at the end of Part VI. Part VI relates to terrorist offences committed, presumably, by individuals. Clause 54 states:
"A person commits an offence if he provides instruction or training in the making or use of"-- and there follows a list. Part VI lays down how an individual commits a terrorist offence under the Bill. That is good.
One of the issues about which I feel strongly is that we should not be talking about two or three different classes of terrorists. Part VII is an anomaly: it refers only to Northern Ireland or Irish terrorism. The Bill protects this nation against international terrorism from wherever it may come until such time as your Lordships and another place amend it or pass another Bill. I am anxious that because of inhibitions with regard to human rights, and so on, the Bill will not be strong enough; that we shall leave loopholes and will not make the best use of our experiences in particular in Northern Ireland, spilling over into this country, in legislating against terrorism.
Clauses 109 and 111--they are rewritten in the amendment--are extremely useful and valuable in the fight against terrorism; otherwise they would not have been in the Bill in the first place. I can see no reason why Clauses 109 and 111 should apply to proscribed organisations and those within them but that another law should apply to those outwith currently proscribed organisations. That is mainly why I move the amendment.
When fighting terrorism, the terrorist knows no bounds. There is no Geneva Convention. Virtually no rules are accepted. We need to ensure that the security forces--they may be the police or specialist forces--have all the weaponry at their disposal that we can give them.
I can see occasions on which these provisions could be most useful. One of the most difficult things to do to a skilled terrorist, a specialist of the type at which the provisions might be aimed, is to arrest him. Unless one can operate within a Bill such as this, one must have evidence, a reason, for the arrest. I believe that if the amendment is agreed, your Lordships will have improved the Bill and increased the protection that it is able to give to the people of this nation against terrorism. I beg to move.
My Lords, we hope that the Government will not be in favour of the amendments. One of the changes that the Government have made to the Bill, which we welcome, relates to Clause 118. They have placed the legal burden of proof on the prosecution; it must prove its case beyond a reasonable doubt. In doing so, they have made it clear that the Bill will fully comply with Article 6 of the European Convention on Human Rights, the presumption of innocence and the privilege against self incrimination, commonly referred to as the right of silence.
The effect of the amendments is to permit the drawing of inferences in relation to offences in Part VI as a result of a failure to mention material facts during questioning. If the amendments were accepted, apart from the complex burdens they would place upon judges and juries in attempting to give effect to them, they would create serious inroads into the right to a fair trial, including the presumption of innocence and the privilege against self incrimination.
Of course we all want to use effective means to combat terrorism, but one means that none of us wants to see introduced is a means that results in unfair trials, the miscarriage of justice and the kind of disrepute into which the criminal justice system would no doubt be brought if there were miscarriages of justice. For those reasons, we hope that the Government will not be in favour of the amendments because in our view they would be incompatible with the Convention rights under Article 6.
My Lords, I want to make one brief point. I agree with the noble Lord, Lord Glentoran, that, given the numerical increase in the number of terrorist groupings and then the further splintering of those organisations, we need to consider his amendment. I fear that we are about to enter a phase in which terrorists will be operating on a do-it-yourself, solo basis motivated by a grudge not against political parties, nations or governments but against someone of their own religious view. I have known of such cases and I am concerned about the numbers multiplying.
It is not even a case of being able to say, "Where two or three are gathered together", as is said in the Prayer Book. There does not need to be two or three; just someone with a burning desire to get at someone else. Whether there is one solo person or whether there are two or three people, we can be assured that they will be accorded a suitable title--the title which they claim themselves--whether Continuity or Real IRA.
However, I am afraid that the number of such organisations will multiply because there is money to be made. We have seen it happen in drug dealing and so forth and there are rich pickings for people who have the means--one or two guns--and the expertise which they obtained when serving in the larger organisations. They can pose a very real threat to society and to government. We need to project our thinking forward and to take the necessary measures. I can think of no better vehicle than this Bill which the Government have brought forward.
My Lords, the amendment would bring two of the "post-Omagh" provisions into Part VI of the Bill. The provisions referred to as "post-Omagh" were introduced in the special Sitting in the summer of 1998 in the wake of the Omagh atrocity in August that year. My noble and learned friend the Attorney-General described the post-Omagh provisions as pushing the law to its limits. We believe that we were justified in pushing the law to its limits and that we are justified in continuing to do so in order to deal with those people who still oppose the peace process.
However, we believe that those provisions remain necessary in response to that particular threat. As your Lordships are aware, they have been placed in Part VII of the Bill. That means that they extend only to Northern Ireland and that they are time-limited to five years, during which time they must be annually renewed by Parliament. We believe that that is the right balance.
We do not therefore support the inclusion of these provisions in the permanent UK-wide part of the Bill. They are a carefully targeted response to the particular problem of organisations opposed to the peace process in Northern Ireland. We see no basis on which they should be applied to other offences in the Bill. I therefore hope that the noble Lord will agree to withdraw his amendment.
My Lords, perhaps I may respond on behalf of the Opposition. The noble and learned Lord quoted his noble and learned friend as saying that these provisions push the law to its limits. However, he correctly stated that the Government are prepared to do so only as regards Northern Ireland, implying that Northern Ireland terrorism is worse than and different from other forms of terrorism in other parts of the world. But a large part of the point of the Bill is to extend the Northern Ireland laws against terrorism to the whole of the UK. It is to take the legal lessons that we have learnt in fighting terrorism in Northern Ireland and to apply them to the undoubted growth of terrorism in the rest of the world in respect of other causes.
We all know of the difficulty of obtaining convictions in Northern Ireland. There are two reasons for that. The first is the intimidation of jurors and witnesses which led to the Diplock courts. The second is the ability of trained terrorists to resist the legal process; to resist the police in their interrogations and to use every part of the law in favour of their case. Those are the lessons that we have learnt in fighting terrorism in Northern Ireland. It therefore seems to us right that Amendment No. 20, which is based on Clause 109, should extend to the other serious offences in Part VI.
Amendment No. 21 is based on Clause 111 and deals with the forfeiture of money and property as discussed on previous occasions. Again, in relation to the very serious offences dealt with in Part VI, we believe that the provisions should apply to all kinds of terrorist and not only to those in Northern Ireland. If we are to learn the lessons of Northern Ireland in dealing with all types of terrorism in the world, then those provisions form part of the lessons. I believe that the House should support my noble friend Lord Glentoran in Amendment No. 20.
moved Amendment No. 21.
After Clause 64, insert the following new clause--
:TITLE3:FORFEITURE ORDERS: OFFENCES UNDER THIS PART
(" .--(1) This section applies if a person is charged with an offence under this Part.
(2) The court by or before which the person is convicted may order the forfeiture of any money or other property if--
(a) he had it in his possession or under his control at the time of the offence, and
(b) it has been used in connection with the alleged offence under this Part or the court believes that it may be used in that connection unless it is forfeited.
(3) Before making an order under this section the court must give an opportunity to be heard to any person, other than the convicted person, who claims to be the owner of or otherwise interested in anything which can be forfeited under this section.
(4) A question arising as to whether subsection (1) or (2)(a) or (b) is satisfied shall be determined on the balance of probabilities.
(5) Schedule 4 shall apply (with the necessary modifications) in relation to orders under this section as it applies in relation to orders made under section 23.").
My Lords, Amendment No. 22 is part of the legislation on specified organisations within Part VII. Again, it seems to me that Clause 107(a) and (b) sets up three classes of terrorist. One is either a terrorist under Section 3(8) of the Northern Ireland (Sentences) Act 1998 or a terrorist proscribed for the purposes of this Act in Schedule 2 or a terrorist who comes under both those provisions because Clause 107 states that an organisation is a terrorist organisation if,
"it is specified under section 3(8) of the Northern Ireland (Sentences) Act 1998, and (b) it is, or forms part of, an organisation which is proscribed for the purposes of this Act".
I can see absolutely no logic in that wording. As I have said several times today, a terrorist is a terrorist is a terrorist; a terrorist organisation is a terrorist organisation is a terrorist organisation. All are a severe threat to this kingdom and the people within it and all should be treated equally severely. We should legislate to give the authorities the necessary powers to protect us.
In my opinion, Clause 107 would be much more sensible, reasonable and logical if it read that,
"it is specified under section 3(8) of the Northern Ireland (Sentences) Act 1998, or ... it is, or forms part of, an organisation which is proscribed for the purposes of this Act".
That means that the organisation is either specified or proscribed but either way it is a terrorist organisation and should be treated as such. I beg to move.
As I made clear in relation to the previous amendment, the Government's view in 1998 was that the post-Omagh provisions pushed the law to its limits but that it was appropriate to do so because of the consequences of not having such provisions in relation to those persons who still attacked the peace process.
We remain of that view. We believe that the effect of the post-Omagh provisions is that they must be targeted appropriately, and they are at the moment. We do not believe that it would be a positive step at this stage to seek to bring within their scope those organisations which are maintaining the ceasefire. In the light of those comments, I hope that the noble Lord will not press the amendment.
My Lords, I thank the noble and learned Lord for that explanation which, he rightly says, he gave earlier.
I have much sympathy with the noble Lord, Lord Lester, in relation to complex burdens on courts, the risk of unfair trials and miscarriages of justice, I have no sympathy whatever--and I do not think they deserve our sympathy--with terrorists or would-be terrorists. It is wrong to set up two classes of terrorism. I believe that the Government are making a serious mistake in treating the Omagh legislation as something very special which took place after an extremely emotional event.
We are looking to the future which we can see. I hate to say that it is possible that there could be worse atrocities. There could be knowledge pending such an atrocity when we should like to use the post-Omagh legislative powers.
I believe that this Bill would be a better Bill had Amendments Nos. 20 and 21 been accepted and had the scope of this clause been widened. However, it has been made quite clear today that that is not the will of the House. I beg leave to withdraw the amendment.
My Lords, I hope to be fairly brief because this amendment was debated at some length in Committee. However, it is an amendment of some importance.
This is another of the post-Omagh provisions. It is a provision which has pushed the law not only up to the limits but, in this case, beyond them.
In speaking to the previous amendment, the noble Lord, Lord Glentoran, said that he had no sympathy for terrorists. That is a statement with which we--indeed, I believe I speak for all noble Lords on these Benches--would absolutely concur. We have no sympathy for terrorists.
At the same time we recognise that in defeating terrorism we do not and should not allow ourselves access to the weapons of the terrorists themselves. In the fight against terrorism, it is absolutely essential to observe the rule of law.
We are concerned that Clause 108 does not observe the rule of law. The problem is that it treats the opinion of a police officer as evidence. The opinion of a police officer is not and cannot be evidence. He can give evidence as to the grounds on which he holds that opinion but the opinion as to whether the accused is or is not guilty of the offence with which he is charged--in this case, membership of a terrorist organisation--is a matter which is for the court to decide and not for the policeman.
Evidence of opinion is permissible in our courts only in the case of expert witnesses. The police officer is not an expert. This clause was introduced in the immediate aftermath of Omagh. It was a clause which did not receive the attention that it deserved. It was considered in surroundings of high emotion and at short notice when legislation was rushed through your Lordships' House in a couple of days.
The only justification for this clause is that it is necessary in order to bring the law of the United Kingdom, as in force in Northern Ireland, into line with the law in the Republic of Ireland where a legal provision of this kind has been in force for some years. Indeed, as I understand it, some convictions have been obtained under it.
We do not think that that is sufficient reason for departing from the longstanding traditions of British justice, which say that the decision on an issue of this kind is for the jury alone, or in the case of a Diplock court in Northern Ireland, for the judge alone. Furthermore, we believe that not only is this clause contrary to the principles and traditions of British justice, let alone the rules of the European Convention; it is also unlikely ever to have effect.
I am sorry that the noble and learned Lord, Lord Lloyd of Berwick, is unable to be here today. He spoke very effectively on this subject, both at Second Reading and in Committee. Perhaps I may refer to something he said. His knowledge of the judiciary in Northern Ireland is far greater than mine. He said:
"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 officer, 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".--[Official Report, 6/6/00; col.1080.]
The view of the noble and learned Lord was that this clause would be wholly ineffective because no court would convict on the basis of the evidence of a police officer. I recognise that the clause provides that there can be no conviction solely on the basis of that evidence. However, it is clear that, if the other evidence is insufficient on its own to convict, no court would convict by adding the opinion of the police officer to that evidence.
The evidence on which the police officer bases his opinion is, no doubt, evidence which is admissible in the case. However, what will happen, unquestionably, is that the first question to be asked of the police officer by counsel for the accused is, "What is the evidence upon which your opinion is based?" The police officer may possibly say what that evidence is, in which case the question will be asked, "Why are not the witnesses brought who could give that evidence?"
What is much more likely is that for reasons of preserving the anonymity of informers or otherwise for the protection of security, the police officer will say, "I am not prepared to state the evidence on which my opinion is based". In that case it seems to me to be inevitable that the court will say, "We are not prepared to place any weight on this evidence". In those circumstances it seems to me that this clause is both wrong in principle and unlikely ever to produce the kind of results that the Government intended when the clause was introduced. I beg to move.
My Lords, I had thought that I might leave it to the Government to defend the inclusion of this clause in their Bill, which I presume they will do in a moment. However, I should like to respond to one or two of the points made by the noble Lord in moving the amendment.
The noble Lord rightly said that this provision has been in force in the Republic of Ireland for some time and has led to some convictions. I understand that that is the case. I sometimes find it difficult to explain to the Republic why in Northern Ireland, in some respects, including this, we have weaker laws against terrorism than they do. In one sense we have the same problem; we are dealing with the same terrorists. But obviously it is a greater problem because the terrorists are much more active in Northern Ireland than in the Republic.
The noble Lord, Lord Goodhart, also stated that the decision should be one for the court, with which I agree, and would remain one for the court. However, the nub of the reason for my intervention is that the noble Lord said that a policeman is not an expert. I realise that he was speaking as a lawyer and expressing a technical view of who is an expert in a court and may give an opinion. It is my view that in Northern Ireland the police are the real experts on terrorism and on who are the terrorists. This applies only to Northern Ireland. It is the police who have been so severely threatened for such a long time. It is they who have studied the terrorists most carefully.
My Lords, I am grateful to the noble Lord, Lord Cope, for giving way. Perhaps he would accept that this was not so much my view as that of the noble and learned Lord, Lord Lloyd of Berwick. Perhaps he would also accept that the police are, in a sense, experts on terrorism in Northern Ireland. However, they are not experts in the legal sense. They are not experts on the subject of whether Mr X or Ms Y is or is not personally a terrorist. That is not an expert question in terms of the law.
My Lords, I am not an expert in the law. I accept the expertise of the noble Lord and of the noble and learned Lord, Lord Lloyd of Berwick, as regards the legal position. However, I still believe that the police, particularly in Northern Ireland, are the ones who know the terrorists best, in every sense of the word, and in the deepest sense. They have every reason, both professional and personal, to do so. I believe that without other evidence--this cannot be done on a policeman's word alone--a court would sometimes find it valuable to have a senior policeman, a superintendent, as is laid down, express what seems to me to be, even if not in the legal sense, an expert opinion on the matter. I therefore support the clause.
My Lords, perhaps I may explain briefly some additional reasons for supporting the amendment. I hope that in his reply the noble and learned Lord will be able to explain why the Government consider Clause 108, read with Clause 109, because they are inter-related, to be compatible with Article 6 of the European Convention on Human Rights. I say that because the Government committed themselves, when asked, to provide their reasons for considering a provision to be compatible.
The Government will know that the Northern Ireland Human Rights Commission gave a full briefing on this matter and expressed particular concern about Clause 108. The commission pointed out that Clause 108 permits a court to admit police opinion evidence, that is, hearsay evidence, into evidence in criminal proceedings, although recognising that a defendant cannot be convicted solely on the basis of that evidence.
The commission also pointed out that Clause 109 further permits a court to draw adverse inferences from a defendant's failure during questioning to,
"mention a fact which is material to the offence and which he could reasonably be expected to mention".
Again, a defendant cannot be convicted solely on the basis of such evidence. However, the commission pointed out that it appears that a defendant may be convicted using a combination of evidence admitted under Clauses 108 and 109. That seems to be the position.
The existing equivalent power comes in Section 30A of the Emergency Powers Act, which to date does not seem to have been relied on according to the commission in Northern Ireland. The commission understands that the police in Northern Ireland are reluctant to use that section in court.
The relevant provision of the European convention is Article 6(3):
"Everyone charged with a criminal offence has ... the right ... to examine or have examined witnesses against him".
In its briefing the commission points to a well-known line of judgments of the European Court of Human Rights in cases like Engel, Kostovski, Doorson and Van Mechelen, which essentially say that convictions should not be based solely or decisively on hearsay evidence. The safeguard in the Bill is that they should not be based "solely" on that evidence.
The commission points out that it holds the same view as that held by the noble and learned Lord, Lord Lloyd of Berwick, in the debate to which my noble friend Lord Goodhart referred on the Criminal Justice (Terrorism and Conspiracy) Bill 1998; that is, that a violation of Article 6 is likely to occur when a conviction is based not solely on police opinion evidence but decisively under Clause 108, or a combination of police opinion evidence and adverse influences under Clauses 108 and 109.
If the Minister has not seen the brief from the Northern Ireland Commission of Human Rights, and had those points drawn to his attention, I understand that he may wish to deal with this matter by way of letter or at Third Reading. But if he is ready to explain his answers to those points I shall be grateful. Otherwise, this may be another example where we are legislating in a way that will have to be put right afterwards in litigation, if ever the point arises.
As my noble friend Lord Goodhart said, it seems unlikely that Clause 108 will ever be able to be applied in practice. It will therefore be a provision written in water as regards the law. And although we may draw great satisfaction from such legislation, if that is the true position and it will not be enforced in practice by the courts, the House is entitled to know that.
My Lords, in his attempt to establish that senior police officers are experts, the noble Lord, Lord Cope, demolished his own case. One of his arguments was that they were experts because they had been on the receiving end of terrorism for so long. I hope that does not misconstrue what he said.
The last thing one wants in an expert is someone who is emotionally or personally involved. The reason one wants an expert in a court of law is that he is someone who will put forward the facts and the arguments as they exist without personal bias. The noble Lord, Lord Cope, shot himself in the foot, if I may say so, and I support the amendment as it stands.
My Lords, it would be difficult to find anybody in Northern Ireland who was not emotionally involved in the tragic events at Omagh. That had a traumatic effect on everybody. I doubt it is possible to find any member of the RUC, professional and disciplined as they are, who was not involved in that event because it had such a cataclysmic impact on the whole community.
Having said that, we are all aware that there are many terrorists in Northern Ireland who are known to the RUC--or in southern Ireland known to the Garda--who are never brought to justice because there is insufficient evidence to convict them. In some instances they may not be guilty of the offence which the police believe they perpetrated. But I am fairly confident that in many instances both the Garda and the RUC know who the guilty people are and do not have the evidence to bring them before the court. With the exception of one person who was charged, to date none of the perpetrators of the Omagh atrocity has been charged, and yet there is reason to believe that many of them are known to the Garda and the RUC. Again, there is no evidence.
I say that simply as an introductory comment to this debate on Clause 108, given that I was involved as a Minister with the original Bill when it was brought before this House, along with my noble and learned friend the Attorney-General. When we are dealing with difficult matters and pushing democracy as far as it is safe so to do, the question is whether the response is proportionate to the evil we are trying to tackle. Although for many offences I would not want a Clause 108, in the case of terrorism as extreme as Omagh the response contained in that clause is proportionate to the evil done to society in Northern Ireland, given the safeguard.
"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".
I have more faith in the discernment and objectivity of the judiciary in Northern Ireland than suggested by the speeches we have heard this evening.
My Lords, I am grateful to the noble Lord for giving way. Does he realise that we were not in any way disparaging the judiciary in Northern Ireland? On the contrary; we were attempting to explain that, such is the commitment of the Northern Ireland judiciary to the presumption of innocence and the right to a fair trial, it is highly improbable that Clause 108 as it stands will ever be able to be invoked. That is why I described it as a provision written in water and therefore one which ought not to be made part of our law.
My Lords, I appreciate that comment. In that case we are both agreed as to the high standards of the judiciary in Northern Ireland. I suggest that is an additional safeguard for those who have doubts about Clause 108.
I repeat, of course we are not overenthusiastic about having to have such a clause on the statute book. But it is proportionate to the evil with which we are dealing and that is a justification for including it in the Bill.
My Lords, the noble Lord, Lord Dubs, took us back to the events of 1998 and the Bill which was introduced when he was still a Minister in the Northern Ireland Office. I remember the speed with which that legislation was rushed through your Lordships' House and I warned at the time how dangerous it was to enact far-reaching legislation of this kind in response to an event, however terrible, which caused tremendous concern among the public. But that was the wrong way in which to enact legislation.
The fact that we are adopting provisions contained in the Criminal Justice (Terrorism and Conspiracy) Act is not a convincing argument to those of us who objected to the process in the first place. Not only is my noble friend's example of the advice given to us by the Northern Ireland Human Rights Commission relevant in considering this matter, but so also is the similar briefing we received from Amnesty International, which I am sure the noble and learned Lord, Lord Falconer, must have seen.
I suspect that the noble and learned Lord will not need to make use of my noble friend's suggestion that he may wish to defer a definitive answer to these points until he has had an opportunity of writing. The department must have apprised him not only of what Professor Brice Dickson said but also of the opinions of Amnesty International; that is, that conviction could be obtained on the basis of the opinion of a police officer supported by inferences drawn from a failure to disclose material information under the provisions of Clause 109. They say that this is not only a violation of Article 6 of the European Convention, as my noble friend pointed out, but that it breaches Articles 14(2) and 14(3) of the International Covenant on Civil and Political Rights.
The noble Lord, Lord Dubs, said that in the circumstances we faced in Northern Ireland following the Omagh atrocity, we pushed democracy as far as it was safe to do so. That was a very telling and revealing phrase. In my opinion, we should always have a safety margin in defending democracy. Just as in designing a building so that it exceeds any load that might conceivably be placed on it by a factor of several orders of magnitude, so, in defending democracy, we must have a sufficient margin between the legislation that we enact and the limits to which democracy is fully tested--
With respect, the legislation that the noble Lord, Lord Dubs, piloted through the House in the Summer Recess of 1998 did not give us that safety margin. As I pointed out at the time, it is the only time in the history of Parliament that criminal law has been enacted in the middle of the Summer Recess. It has never happened before. Yet your Lordships rushed that provision through the House, and we are now enacting it in permanent law.
We should think not once but several times before we insert this provision into a Bill which is going to stand the test of time, but which may test not only the ability of the courts in Northern Ireland but democracy itself. It has never been used, as the Human Rights Commission of Northern Ireland has pointed out, and the police in Northern Ireland must have good reasons for not using it in that context. If it is going to lie on the statue book as a dead letter, we are making the mistake, which Parliament should never do, of putting measures on to the statue book as a gesture when we know that they are never going to be used by the courts.
My Lords, in relation to any offence, however heinous, wherever committed, it is surely axiomatic that conviction must depend upon evidence. I recognise that in the special circumstances of terrorism generally, and terrorism in Northern Ireland in particular, it may perhaps be necessary to change the rules relating to the obtaining of evidence and how it is obtained, and to change the procedures by which the sources of evidence are protected. I recognise that. What I cannot find myself persuaded to accept is that there should be a different level of quality of evidence.
I sympathise with the noble Lord, Lord Goodhart. The essence of his point is that we are seeking to write into legislation something which proscribes a different quality of evidence which would or might lead to conviction.
My Lords, I intervene very briefly, not to contradict or differ from what the noble Lord has just said, but for the benefit of those of your Lordships who have a fixation about the reliability of RUC officers. The suggestion is that, because they have been murdered in their hundreds, they might have a built-in resistance or enmity towards certain types of criminal.
I realise that the noble and learned Lord has enough on his plate at present, but perhaps he can give some thought in the future to whether it would be more acceptable if the powers that be invited the Deputy Director of MI6 to give the evidence rather than an RUC officer? It would possibly be even more detailed than anything that an RUC officer might produce. To those who may say that MI6 is not supposed to operate within the United Kingdom, I say that anyone who believes that will believe anything.
My Lords, I very strongly support what has been said by the noble Lord, Lord Dubs. I recognise the difficulties. However, it seems to me that the people of Omagh--and by extension the people of Northern Ireland--need to have justice done and to see it done. We know that at present the RUC has decided that, were it to proceed as the Act of 1998 allows, it would indeed be taken to the Court of Human Rights and overruled.
Nevertheless, given the provision in this draft legislation, I cannot understand why it is improper because it would not be only on the basis of the evidence of an officer. I cannot understand why the existence of evidence that someone is a terrorist, who was in a place at the right time, should not be brought to court. It just may give courage to witnesses to come forward. They have not come forward, but they have not been given an opportunity to do so. In my opinion, it would be wrong to leave any stone unturned which would enable those people to be brought to justice. Given the provision of the safeguards in the legislation, I cannot see how that could be regarded as improper. It is more likely to secure justice than doing nothing at all.
My Lords, I find myself in a dilemma. I have heard what has been said by my noble friend Lord Dubs, for which I have a lot of sympathy. I have also heard what the noble Lord, Lord Goodhart, has said. It may be that a very stringent law was necessary to catch the killers of Omagh. Nobody has yet been caught. That may be because sufficient evidence has not been obtained, for which we shall have to wait patiently, or because the police have decided that this particular piece of legislation which was passed in 1998 is not of much help either way, and therefore they have not invoked the provisions of this particular clause. I should like to know which of the two is the real explanation.
If it is an ineffective but stringent piece of legislation which pushes democracy beyond the limits that we would like to set, we should not have it. If it is both ineffective and creates a serious violation of human rights, there is greater reason for not having it. It would therefore be very helpful to know whether this will be an effective weapon in the hands of the authorities and whether there is any evidence for this.
My Lords, my noble friend Lord Dubs described the effect of the atrocity at Omagh. It is right that the Government should respond to that atrocity in a way that is proportionate and appropriate. We believed at the time that this response was proportionate and appropriate, and we continue to believe that that is the position. Indeed we believe that it would be wrong to change the provisions now.
In the course of this short debate, these provisions have received considerable support from all sides of the House. As I understand it, the argument for saying that they should be withdrawn is threefold. First, it is said that the provisions go too far. They go, as the noble Lord, Lord Goodhart, put it, "beyond the limits of the law". Secondly, they infringe the Human Rights Convention and/or the Civil and Political Declaration by the UN, referred to in the Amnesty International Report. Thirdly--and perhaps contradictory to the first two points--they will in any event be of no avail at any stage.
With regard to the first point that it goes too far, I should point out that the effect of the provision contained in Clause 108 is that an officer above the rank of superintendent can give evidence of someone's membership of a proscribed organisation. That officer can be cross-examined on the evidence that he gives. The effect of the clause is only to make the evidence admissible; it is entirely for the judge to determine what weight to attach to that evidence. The weight that he attaches to it will, presumably, depend upon such answers as the officer gives in the course of cross-examination. Like everyone in this House, I am second to none in my admiration for the Northern Irish judiciary. I am quite sure that they would be as good as any judiciary in the world in ensuring that the provision is properly applied.
Secondly, that evidence alone cannot be the basis of a commitment for trial or a conviction: it must be supported by other evidence. Thirdly, in relation to the combination of silence, on the one hand, and the evidence on the other, this could, on the face of it, provide a conviction. However, before any adverse inference in relation to silence can be drawn, the defendant must have had the opportunity to take the advice of a solicitor. Again, the evidence of the officer and the evidence of silence do not compel a conviction. It is entirely a matter for the court to determine what the right conclusion is in relation to such cases. I do not think that the provision goes too far. I believe that there are appropriate safeguards in place. If one looks at the matter from a standing start, as it were, it seems to be an entirely appropriate response.
Does it infringe the convention or the declaration? Those two arguments have been advanced in relation to why it infringes the convention or the declaration. First, it is hearsay and, therefore, there must be a proper opportunity to test the evidence. That opportunity is there from the legal system that permits appropriate, proper and testing cross-examination of the evidence. Secondly, it has been said--
My Lords, I am grateful to the noble and learned Lord for giving way. Surely the police officer concerned cannot be compelled, for security reasons, to answer questions in cross-examination that might disclose the sources of his opinion. Will that not make cross-examination an ineffective defence? Alternatively, is it the intention that the police officer should be compelled to disclose the source of his information?
No, my Lords. I should imagine that the usual rules in relation to public interest immunity would not apply in that respect. However, that does not affect my basic point. The case must be made out. If the case is not made out as a result of a refusal to answer questions on perfectly legitimate grounds, no doubt the court will so find. But, in each case, it will depend on whether or not the evidence is sufficient to found a conviction.
I return to the position under the convention and under the declaration. Is it possible to test the evidence? Yes it is, because it is subject to cross-examination under our system, which plainly complies in principle with Article 6. The other point made by the noble Lord, Lord Lester of Herne Hill, was that a person should not be convicted solely and decisively on hearsay evidence. Safeguards have been built in to the provision in that respect. The legislation specifically says that a person cannot be convicted on that evidence alone. I believe that the position under the convention is dealt with by those points. It is a perfectly robust position for the Government to take.
My Lords, I should point out that there is no difference between the covenant and the convention, so we can forget about the covenant. I shall concentrate on the convention. Does the noble and learned Lord agree that the principle of equality of arms means that no witness must have a decisive weight--an unfair advantage--in the course of a criminal trial, or, for that matter, of a civil trial? If we have a position where opinion evidence (which is hearsay) given by a police officer could be tested by cross-examination ineffectually because he cannot be compelled to disclose his sources for security reasons, that would run the risk of rendering the trial one in which there is inequality of arms and, therefore, unfairness. If that is so, does the noble and learned Lord agree that a judge would have no alternative but to find that the prosecution case had not been made out? It means that the extreme nature of the provision could lead to an ineffectual result. Therefore, there is no contradiction in saying that this is extreme and, for that reason, ineffective.
My Lords, that takes us back to the essential point: it will depend upon what answers the officer gives in cross-examination. This would certainly be a Diplock trial and, therefore, the judge would then have to proceed on the basis of that evidence. He would have to ask himself, "Is there enough here which makes it possible for me to conclude that I should convict the defendant beyond reasonable doubt?". If there is insufficient material available to reach such a conclusion, I have no doubt that the Northern Irish judiciary would reach that conclusion.
The final point made by the noble Lord was that this provision will be of no avail because it will never be used. It is very difficult for us to put together all the possible circumstances in which a charge might be brought. There may well be cases where this provision, and the one regarding silence, would be of value to the prosecuting authorities in Northern Ireland. If there is a realistic chance that it could be of value to the prosecuting authorities, then, both for the reason of its effectiveness and also for the reason given by the noble Baroness, Lady Park, it should be in the armoury of the criminal justice authorities in Northern Ireland. Therefore, the reasons advanced by noble Lords do not hold water. We believe that the provision should stay. In the light of my remarks, I very much hope that the noble Lord will be minded to withdraw his amendment.
My Lords, again, I obviously regret that the noble and learned Lord has been unable to offer any movement on the part of the Government in the direction required. Before I deal briefly with the Minister's response, I should like to comment on the remarks made by the noble Lord, Lord Dubs. I believe that everyone in the House has the highest admiration for the work carried out by the noble Lord, Lord Dubs, in Northern Ireland. Therefore, it gives me no pleasure to have to disagree with him on this issue.
However, there is a problem here and one which was illustrated by the noble Lord's remarks. He talked about the fact that there have been terrorist outrages in Northern Ireland where the police have known who committed them but have not had the evidence that would lead to a conviction. Nothing in this amendment would affect that position as regards conviction for the commission of an outrage, because Clause 108 applies solely to the one offence of membership of a terrorist organisation. More often than by anything else, miscarriages of justice are perhaps caused by the very cases where the police think they know who committed the offence, but where they do not have the evidence to prove it.
In the general principle, it is plain that there is no case to justify extending the ability of the police to give evidence as to who committed an offence simply as a matter of opinion--or to state something as a matter of their opinion--when that opinion is not based on evidence that will stand up in court. Therefore, I do not think that the argument put forward by the noble Lord could justify the provisions of Clause 108.
I turn now to the defence of the noble and learned Lord of Clause 108. The reference to PII is really the nub of the matter. In a sense, the purpose of Clause 108 is to get around the problem of public interest immunity indirectly by giving power to bring in evidence through a police officer's opinion which the Government could not bring directly to court because they are not prepared to compromise their sources. I do not think that this is a legitimate way of handling a matter of this kind.
I am not happy with the continuation of Clause 108 in this Bill. Nevertheless, despite the fact that we have received support from several Members of your Lordships' House who do not sit on our Benches, it is clear that both the Government Front Bench and the Conservative Front Bench would oppose any attempt to remove Clause 108 from the Bill. Any attempt to do so would therefore clearly be heavily defeated. Even so, I would be tempted to press the amendment were it not for the fact that I am convinced that for the reasons given by the noble and learned Lord, Lord Lloyd of Berwick, on previous occasions, this is a clause which in practice is most unlikely to be used. I therefore beg leave to withdraw the amendment.
moved Amendment No. 27:
Leave out Clause 117 and insert the following new clause--
:TITLE3:CONSENT TO PROSECUTION
(" .--(1) This section applies to an offence under any provision of this Act other than an offence under--
(a) section 36,
(b) section 51,
(c) paragraph 18 of Schedule 7,
(d) paragraph 12 of Schedule 12, or
(e) Schedule 13.
(2) Proceedings for an offence to which this section applies--
(a) shall not be instituted in England and Wales without the consent of the Director of Public Prosecutions, and
(b) shall not be instituted in Northern Ireland without the consent of the Director of Public Prosecutions for Northern Ireland.
(3) Where it appears to the Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland that an offence to which this section applies is committed for a purpose connected with the affairs of a country other than the United Kingdom--
(a) subsection (2) shall not apply, and
My Lords, in moving Amendment No. 27 I wish to speak also to Amendment No. 34. I shall be brief.
In Committee I said that the Government would bring forward an amendment at Report stage covering similar ground to that in Amendment No. 27 and similar ground to that in the amendments then before the Committee moved by the noble Lord, Lord Goodhart, concerning consent to prosecutions in what might be termed "international" cases. This we have done. Our amendments speak for themselves. As far as international cases are concerned, it should be the Attorney General who has to give his consent to a prosecution taking place. I beg to move.
My Lords, in moving Amendment No. 28 I wish to speak also to government Amendment No. 29. These are minor and technical amendments to make sure that Clause 118, which was added to the Bill in Committee, works for Scotland. The reason they are needed is that Clause 118 as presently drafted uses the expression "sufficient evidence". I am advised that this expression can have a technical meaning under Scots law and, quite simply, could itself require a shift in the burden of proof to the prosecutor. In the context of Clause 118, noble Lords will appreciate that the confusion which this could cause for Scotland is certainly not what we intended--which was to refer to evidence which is good enough to give rise to issues about the matter before the court.
Fortunately, by simply turning the words round from "sufficient evidence" to "evidence which is sufficient" we have been able to keep the meaning the same as it is at present for England and Wales and Northern Ireland while at the same time removing the risk of any confusion regarding the application of the clause in Scotland. I beg to move.
My Lords, in moving Amendment No. 30 I wish to speak also to Amendments Nos. 32, 33, 36 and 37.
The substantive amendments in this group are to Schedule 1 to the Bill. Noble Lords will recall that Schedule 1 is a mechanism for keeping alive the Northern Ireland (Emergency Provisions) Act between Royal Assent and the commencement of Part VII of the Bill next year.
When the Bill was introduced, we had to bear in mind two possibilities. The first--perhaps a rather optimistic one--was that Royal Assent would be received before 15th June, the second that Royal Assent would be after that date. Schedule 1 was therefore drafted to cover both scenarios.
Now that Royal Assent will obviously be after 15th June, we consider that these technical provisions are best redrafted so as to proceed on that basis. We hope that in doing so we have made Schedule 1 easier for the reader to follow. I beg to move.
moved Amendment No. 33:
Page 60, line 3, leave out subsection (2) and insert--
(a) a person is detained by virtue of a provision of the Northern Ireland (Emergency Provisions) Act 1996 (as continued in force by virtue of Schedule 1 to this Act), and
(b) the provision ceases to have effect, he shall be treated as lawfully detained under any corresponding provision of this Act.").
moved Amendment No. 34:
Page 60, line 29, at end insert--
("(8) Section (Consent to prosecution) shall apply to the institution of proceedings after commencement of that section whether the offence to which the proceedings relate (which may, by virtue of subsection (4) above, be an offence under a provision repealed by this Act) is alleged to have been committed before or after commencement of that section.").
moved Amendments Nos. 36 and 37:
Page 61, line 5, leave out paragraphs 1 to 3 and insert--
("1.--(1) This paragraph applies to any of the following if and in so far as it is in force immediately before the passing of this Act by virtue of an order under section 62(3) of the Northern Ireland (Emergency Provisions) Act 1996 (duration)--
(a) a provision of the Northern Ireland (Emergency Provisions) Act 1996 (other than one mentioned in sub-paragraph (2)),
(b) a provision of the Prevention of Terrorism (Temporary Provisions) Act 1989, and
(c) section 4 of the Criminal Justice (Terrorism and Conspiracy) Act 1998 (forfeiture orders).
(2) This paragraph does not apply to the following provisions of the Northern Ireland (Emergency Provisions) Act 1996--
(a) section 26(1)(b) (power of entry on authority of Secretary of State),
(b) section 35 (wearing of hoods), and
(c) section 50 (explosives factories).
2.--(1) A provision to which paragraph 1 applies shall continue in force for the period of 12 months starting with the day on which this Act is passed.
(2) The Secretary of State may by order provide for a provision to which paragraph 1 applies to continue in force for the period of 12 months immediately following the period mentioned in sub-paragraph (1).
3.--(1) The powers under section 62(3)(a) and (c) of the Northern Ireland (Emergency Provisions) Act 1996 shall continue to be exercisable in relation to a provision to which paragraph 1 applies in respect of any period falling within--
(a) the period mentioned in paragraph 2(1), or
(b) a period specified in relation to that provision under paragraph 2(2).
(2) The power under section 62(3)(b) of the Northern Ireland (Emergency Provisions) Act 1996 shall continue to be exercisable in relation to a provision to which paragraph 1 applies at any time during--
(a) the period mentioned in paragraph 2(1), or
(b) a period specified in relation to that provision under paragraph 2(2).
3A. The Secretary of State may by order provide for a provision to which paragraph 1 applies--
(a) to cease to have effect on a specified day;
(b) to cease to be capable of being the subject of an order under section 62(3) of the Northern Ireland (Emergency Provisions) Act 1996.
3B. The continuance in force of a provision by virtue of paragraph 2 is subject to any order made by virtue of paragraph 3 or 3A.
3C.--(1) A provision of the Northern Ireland (Emergency Provisions) Act 1996 to which paragraph 1 does not apply shall continue to have effect for the purposes of, or in so far it relates to, any provision to which that paragraph does apply.
(2) While Part I of Schedule 1 to that Act (scheduled offences) has effect by virtue of this Schedule, the following shall also have effect--
(a) Part III of that Schedule (extra-territorial offences), and
(b) sections 3, 10 and 11 of that Act so far as they relate to offences which are scheduled offences by virtue of that Part.").
Page 61, line 41, leave out ("paragraph 1(2)") and insert ("this Schedule").
My Lords, in moving Amendment No. 38 I wish to speak also to Amendments Nos. 42, 43, 44, 45, 52 and 53. This amendment and the others in this group are minor and technical drafting amendments. They do not change the effect of the Bill in any way. Of course I would be happy to explain each of them further if noble Lords wish. I beg to move.
My Lords, in moving Amendment No. 39 I wish to speak also to Amendments Nos. 40, 50 and 51.
One of the improvements this Bill makes to the EPA is to introduce a right of appeal against a refusal by the Secretary of State to grant a licence to a person wishing to provide private security service in Northern Ireland. A refusal to issue a licence may be based on sensitive intelligence--the purpose of the licensing regime is to prevent funds being raised for paramilitary organisations.
The Bill ensures a right of appeal to the High Court but where there is a need to protect intelligence material the Secretary of State may certify that the refusal to issue the licence was to prevent funds reaching the paramilitaries. When such a certificate is issued, the High Court proceedings stop and the appellant may, if he chooses, appeal to the tribunal established under the 1998 Northern Ireland Act. That tribunal's proceedings are governed by rules made by the Lord Chancellor. Amendments Nos. 40 and 51 provide for those rules to have effect with the changes necessary to reflect the expansion of the tribunal's remit, subject to any later changes to the rules themselves.
Amendments Nos. 39 and 50 are minor drafting changes to clarify the position that the tribunal rules are indeed the rules which will apply in private security services cases. Without these amendments, we are concerned that the impression might be given that we intend to make separate rules. I trust that these are uncontroversial amendments. I beg to move.
moved Amendment No. 40:
Page 62, line 42, at end insert--
("(8) Rules made under section 91 or 92 of that Act which are in force immediately before the passing of this Act shall have effect in relation to a certificate under sub-paragraph (5)--
(a) with any necessary modifications, and
(b) subject to any later rules made by virtue of sub-paragraph (7)(b).").
moved Amendments Nos. 42 to 45:
Page 75, line 3, leave out ("in any case").
Page 77, line 21, leave out ("or") and insert ("and").
Page 77, line 37, leave out ("within the meaning of section 14").
Page 88, line 35, leave out ("Economic Development") and insert ("Enterprise, Trade and Investment").
On Question, amendments agreed to.
Schedule 7 [Port and Border Controls]:
My Lords, Amendment No. 46 responds to a point raised by the noble Viscount, Lord Simon, and the noble Lord, Lord Brabazon of Tara, during the Committee stage. I agreed to consider this further and report back to the House.
The Government believe that there are sound reasons for the United Kingdom to carry out checks at ports to prevent and detect terrorists and terrorist activity at our borders. The provision of passenger and crew details is a very important part of that process. But the Government also recognise that requirements on carriers to co-operate have to be reasonable, proportionate and conducted sensitively so as to minimise the impact on the travelling public and business. We also recognise that we need to work closely with carriers and operators at ports to achieve this. A partnership approach is required.
The amendment provides that owners and agents of ships or aircraft should provide the police with passenger information,
"as soon as is reasonably practicable".
It was, of course, never the Government's intention in drafting this provision that carriers would be asked to provide information within unreasonable time scales. We felt that it went without saying that the police would ask for information to be provided within reasonable time frames, bearing in mind the particular circumstances of the case.
But I recognise that there has been some concern on this point and that an explicit reference to "reasonableness" on the face of the Bill may provide additional comfort. As part of our on-going partnership approach in combating terrorism, I am happy to bring forward this amendment today. I beg to move.
My Lords, I am sure that the Minister did not wish to omit my name on purpose, but I moved a similar amendment at an earlier stage. On behalf of the other noble Lords, who were not in their places a moment ago, I thank the Government for taking our point on board and for bringing forward this amendment, which achieves what we were asking.
My Lords, in speaking to Amendment No. 46A, which is grouped with this amendment, like the noble Lord, Lord Greenway, I am grateful for the government statement made in Committee that carriers would not be prosecuted for passing on information that turned out to be false. However, this still leaves the air and sea carriers without the statutory defence accorded to the financial institutions in Schedule 6. I am at a loss to understand why the Government should consider this disparity of treatment acceptable. Transport operators certainly find it exceedingly odd.
I understand that the board of airline representatives has invited the Home Office officials involved to view its reservation systems in order to ensure a proper understanding of what information is contained about passengers and what is not. Had the carriers been consulted prior to the introduction of the Bill, as the banks were, I suspect that the defence would have been granted to them earlier. Regrettably, consultation did not take place.
I should make it clear that the carriers seek only to have the defence in cases where they are unable to provide the information because they simply do not have it. It is not a case of being obstructive by withholding information. The banks have been allowed this defence in similar circumstances, and I am simply proposing that the air and sea carriers should be treated equally when the police come to invoke their powers.
At the beginning of my remarks I praised the Government for their assurances in respect of carriers passing on information which turned out to be bogus. There is no way in which carriers can verify passenger information because passengers are not required to carry passports with them when travelling within the common travel area. Transport operators' experience suggests that celebrities are among the most loyal of customers, even to the extent of appearing several times on the same passenger list.
The worth of such passenger information must obviously therefore be questioned. I ask my noble friend to consider how information of this kind could be of any help to the police in countering terrorism.
My Lords, I support the amendment. I apologise for being slightly late; things have moved on rather quickly.
I thank the Government for introducing Amendment No. 46, which is very helpful from the point of view of the carriers. The words used by the noble Lord, Lord Bassam, in Committee--which are now recorded in Hansard--are also very helpful to carriers.
The Minister will of course recognise the wording of Amendment No. 46A in that it is taken precisely from Schedule 6 to the Bill which gives the financial institutions exactly this kind of defence. If it is allowable for the financial institutions, why should it not also be allowable for the carriers? It seems to me that it is the same kind of information, and the noble Viscount has explained the difficulties that the carriers can have in providing it. As we said in Committee, there is absolutely no requirement within the common travel area for any papers to be carried by passengers. It would seem perfectly reasonable to give the carriers exactly the same defence as the financial institutions have in Schedule 6.
As I understand it--and as the noble Viscount said--the carriers were not consulted during the drafting of the Bill. Had they been so, they would have been able to inform officials from the Home Office exactly how they go about issuing their tickets and run their reservation systems. I understand that that is now happening, but perhaps it is a little late in the day.
I urge the Minister to give serious consideration to the noble Viscount's amendment and to explain why the financial institutions should have this defence and the shipping and airline companies should not.
My Lords, on behalf of the ferry companies, I, too, should like to be associated with the sentiments behind this amendment, having moved a similar amendment at Committee stage. I do not think the Government will have changed their minds in the interim, but it would be nice to know that they have thought about it again.
My Lords, we had some discussion on these general matters in Committee. The case has been made again by my noble friend Lord Brabazon, the noble Viscount, Lord Simon, and the noble Lord, Lord Greenway. I rise to express some sympathy with the points that lie behind Amendment No. 46A and to thank the Government for responding in the way that they have done in bringing forward Amendment No. 46.
My Lords, I am grateful to the noble Lords who have spoken on this issue. I apologise to the noble Lord, Lord Greenway, for not having mentioned his name in the context of those who have helped us to come to the view expressed in our amendment as a result of what they said at Committee stage.
In Committee we discussed the need for a partnership approach between industry, the police and government in combating terrorism, and the important part that the provision of passenger information can play in this. We debated an amendment very much along these lines. Our amendment, to which I have already spoken, which specifies that passenger information should be provided by carriers and owners
"as soon as is reasonably practicable" provides, we believe, a measure of reassurance that we are sensitive to industry concerns on this issue--and noble Lords have been kind enough to agree with that belief.
However, I am afraid that we do not think that the amendment brought forward by my noble friend Lord Simon, which is supported by other noble Lords, adopts the right approach in seeking to provide, in addition, a statutory defence that the information requested was not in the carrier's possession or that it was not reasonably practicable for the carrier to comply with the requirement.
A particular concern is that the first leg of the statutory defence--namely, that the information was not in the possession of the carrier--could at least, on a literal reading, allow a carrier to make no attempt at all to collect the requested passenger information. The carrier could then put forward a defence that that information was never in his possession. I am sure that that is not the intention here. An excellent record of co-operation is held between the carriers and the police. But that could be the effect were this amendment to be agreed.
Moving to the second limb of the proposed statutory defence, the debate on the order under the Bill will provide the opportunity to decide what types of information it will be reasonable to require of carriers. Once Parliament has agreed what types of information should be provided, and given that our amendment stipulates that that information should be provided as soon as "reasonably practicable", we do not think that it is either necessary or right in addition to provide a statutory defence in the Bill to the effect that it is not practicable to collect the information.
The police will ask for this information in the context of on-going counter-terrorist inquiries and investigations. The police will not do this lightly. But when information is requested, information that Parliament has agreed the police may request, and to a reasonable timescale, we think it only reasonable to expect that information to be collected. Surely that reflects exactly what should be the partnership approach in tackling terrorism.
I hope that I have made it clear that we are committed to making the passenger information provisions work for all concerned: for the industry, for the travelling public and for the police. We all agree that the focus should be on working together to combat terrorism.
Before I sit down, I have been asked by a number of noble Lords a question about the defence set out in Schedule 6 to the Bill. In Committee a noble Lord suggested that it might have been an oversight on our part not to provide such a statutory defence regarding the non-provision of passenger information, because a similar provision existed under Schedule 6 in relation to the provision of financial information.
However, no oversight has taken place here. The provisions are different; that is why the related offences are constructed differently. The financial information schedule concerns approaching banks to see whether they hold accounts in certain names. If they do not, clearly they cannot provide the information, which is why that statutory defence is provided. Frankly, it makes less sense in the context of passenger information and could be abused, as I have already pointed out.
As regards the second proposed statutory defence--namely, that it is not reasonably practicable to comply with the requirement--this is provided for in the context of financial information primarily because the police may approach the banks with requests for them to search back through their records for historic information. Depending on the information systems in place, it simply may not be practicable to check that the information is available or to provide it.
However, we believe that the situation regarding passenger information is different. The police will be asking for information about passengers who are about to travel or who have just done so. Thus the wherewithal for collecting information will be to hand. Moreover, the police will be requesting that information,
"as soon as is reasonably practicable".
In these circumstances we do not think it either necessary or right in addition to provide a defence that it was not reasonably practicable to collect and pass on the information. For those reasons, we cannot accept my noble friend's amendment. I hope that he and those who have spoken in support of the amendment will realise that, through their efforts, they have already achieved a great deal.
moved Amendment No. 46A:
Page 109, line 33, at end insert--
("(1A) It is a defence for an owner or agent of a ship or aircraft charged with an offence under paragraph 17(2) to prove either--
(a) that the specified information requested was not in his possession; or
(b) that it was not reasonably practicable for him to comply with the request.").
My Lords, we have now reached the final group of amendments. In speaking to Amendment No. 47, I should like to speak also to Amendment No. 48. However, since I tabled Amendment No. 48, I have discovered that the expressions "legal privilege" and "legal professional privilege" are not appropriate expressions in the law of Scotland. For that reason, Amendment No. 48 is defective.
Amendment No. 47 raises an issue on which I hope to receive a reassurance from the Government. The reason why a police officer may be required to listen to what is being said during the course of an interview between someone charged with an offence or who is being held under investigation and his or her solicitor is that there may be cases where, regrettably--although it certainly has happened--the accused might wish to pass on to the solicitor information which would enable evidence to be hidden or other damage to be done to the investigatory process. We accept that that is a legitimate excuse for providing a requirement that the interview should take place within the hearing of a police officer.
However, a problem arises where what is being overheard may perfectly well be the normal substance of an interview between client and solicitor in which the client gives to his solicitor an account of the facts as he sees them. In that case, if the police officer is not bound by professional privilege, that officer would be entitled to pass on to other members of the police force and ultimately to the prosecution the substance of what he has overheard. That information might in due course be of use to the prosecution in the trial because it would allow the prosecution to say that the accused's evidence on a certain point was inconsistent with the original story as told to the accused's solicitor. That seems to us to be improper.
The legal professional privilege that attaches between a client and a solicitor--which does not of course extend to matters such as requesting assistance in hiding evidence--should also bind the police officer, so that that officer is equally prevented from passing on to the prosecution information about what he has overheard during the course of the consultations between client and solicitor. I hope that the Minister will be able to reassure me that this amendment is not necessary, but, if it is, it seems to me to be a point that should be covered by the legislation. I beg to move.
My Lords, we believe that there are technical and policy reasons why we cannot accept these amendments. As regards the technical point, the noble Lord, Lord Goodhart, got there before me in his comment on the expression "legal privilege" in the language used in Scottish legal circles.
I shall turn directly to the policy issues here. On a substantive level, as we understand it, the concern of the noble Lord is to ensure that nothing passing between a person detained under Schedule 8 to the Bill and his solicitor should be available for use by the prosecution in subsequent criminal proceedings against the detainee.
My Lords, that does not quite cover the burden of the amendment. It seeks to ensure that nothing which could be the subject of legal professional privilege as between client and solicitor should be capable of being passed on by the police officer who overhears the consultation. Matters that range outside professional privilege, which would undoubtedly cover an instruction to the solicitor to dispose of evidence, would not be covered by the privilege.
My Lords, we believe that such a provision is unnecessary. The way the provisions in the Bill are framed, in that they provide that the officer in the interview must be uniformed and a uniformed member of the force, not connected with the detained person's case, indicates that the intention is not to collect information which may be later used in evidence against the detainee. Rather, the purpose is, as detailed in Schedule 8--in paragraph 8 so far as England and Wales and Northern Ireland are concerned and paragraph 17 so far as Scotland is concerned--is to prevent the compromise of terrorist investigation. These paragraphs make it clear that this is the only reason that a police officer may sit in on such an interview. That purpose is reinforced by the fact that such communications between the detainee and his solicitor under common law would be protected by legal privilege or its equivalent in Scotland, confidentiality. Thus we do not believe the amendments to be necessary
In any event we think they are rather widely drawn. They appear to suggest, although the noble Lord has made it clear that they do not, that anything which is discussed between a solicitor and his client should attract legal privilege. That is not so in ordinary cases and we do not think it should be the case in terrorist ones.
We accept that the prosecution must not be provided with legally privileged material. That does not mean of course that the police are prevented from taking any action in connection with anything overheard in an interview. For instance, if a detainee provides information, to take an extreme example, about an imminent terrorist attack, of course action may be taken to disrupt the bomb.
As I said in Committee, it is acutely uncomfortable to contemplate circumstances in which such provision may be needed. I emphasise to the House that it is only for the most exceptional cases; but it is important for it to be there. For the reasons that I have explained, we believe that the concerns of the noble Lord about the provisions are unfounded. I hope he will feel able to withdraw his amendment.
moved Amendment No. 49:
Page 127, line 37, at end insert--
:TITLE3:("Computer Misuse Act 1990 (c. 18)
18A. Offences under the following provisions of the Computer Misuse Act 1990 subject to note 1 below--
(a) section 1 (unauthorised access to computer material),
(b) section 2 (unauthorised access with intent to commit further offence), and
(c) section 3 (unauthorised modification).").
On Question, amendment agreed to.
Schedule 13 [Private Security Services]:
moved Amendments Nos. 50 and 51:
Page 138, line 45, leave out from ("may") to ("appeal") in line 46.
Page 139, line 2, at end insert--
("(4) Rules made under section 91 or 92 of that Act which are in force immediately before this paragraph comes into force shall have effect in relation to a certificate under this paragraph--
(a) with any necessary modifications, and
(b) subject to any later rules made by virtue of sub-paragraph (3)(b).").
On Question, amendments agreed to.
Schedule 15 [Consequential Amendments]:
moved Amendments Nos. 52 and 53:
Page 147, leave out lines 13 to 17.
Page 148, line 12, at end insert--
:TITLE3:("Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)
.--(1) The Powers of Criminal Courts (Sentencing) Act 2000 shall be amended as follows.
(2) In section 88(2)(b) (meaning of "remanded in custody") for "section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989" substitute "section 41 of the Terrorism Act 2000".
(3) In section 101(12)(b) (meaning of "remanded in custody") for "section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989" substitute "section 41 of the Terrorism Act 2000".").
On Question, amendments agreed to.