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My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Rooker.)
Amendment No. 126B is very much concerned with the incorporation into the Bill of procedures for the first pillar of the European Union which are now undertaken by the third pillar. I had the honour to chair a Select Committee of this House which was concerned with scrutiny of the third pillar of the European Union. That committee was very conscious of the extent to which parliamentary scrutiny of third pillar issues was deficient. As the Delegated Powers and Regulatory Reform Committee rightly observed, there are significant differences between the legislative process under the first and third pillars. The third pillar is a process,
Xwhich is more akin to the negotiation of treaties than to a conventional legislative process".
During many discussions in that committee about third pillar issues, we identified a number of instances when it was not at all clear how far Her Majesty's Government were committed to different elements under the third pillar. There is a British opt-out from the Schengen side of the European Union. But having opted out, Her Majesty's Government have opted in again. So, whereas Clause 110 sets out to give substantial powers to the Government to accept items of what is in itself a highly ambitious agenda under the Tampere European Council's five-year programme for expanding the area of justice, freedom and security within the European Union, we are therefore concerned that we should circumscribe this power as much as possible.
The purpose of the amendment is, therefore, to limit the amount of jurisdiction given to the Government. It sets out to add the word Xnot" after Xmay". Amendment No. 126C would insert Xexcept"; and Amendment No. 126D would add a sunset clause, thereby limiting the amount of time during which the Government could adopt into British law specifically those elements that are part of the framework decision on counter-terrorism. Thus we could avoid giving the Government a general authority to accept into British law under secondary legislation a whole range of other items on the extensive Tampere agenda.
We accept that the 1994 and 1995 supplementary convention on extradition is likely to be dealt with under separate legislation; so, in some ways, that part of our amendment is of less immediate relevance than the rest. The elements on which we insist—and on which we hope the Government will yield some distance—are that the authority given to the Government under the clause should be limited to matters which are necessary to deal with current events and which come under the framework decision on counter-terrorism, and that the provision should be time-limited.
Those are the essentials of our amendments. We very much hope that the Government will come some way towards meeting our concerns. If those concerns are met, we shall be able to accept Clause 110. If they cannot, we on these Benches will have to consider our approach to the acceptance of the clause as a whole. I beg to move.
I share some of the concern expressed by the noble Lord, Lord Wallace of Saltaire, about the potentially wide scope of elements of the Bill to be brought into effect in the United Kingdom, not by primary legislation, but by secondary legislation—that is to say, by regulation. Although there may be some excellent decisions to be taken under the third pillar, we must recognise that the clause goes very far. It goes far into the future, by including obligations,
Xcreated or arising by or under the third pillar (whether before or after the passing of this Act".
It also goes potentially far up the scale of penalties. Although there are strict conditions, certain offences punishable by imprisonment,
Xfor a term of any length", can be created. We must look to see whether we can limit this power, either by specific provision such as that suggested in the amendment, or at least by imposing a strict time limit.
I want to emphasise the point that we are dealing with intergovernmental provisions, not with Community provisions, in consequence of which a large part of the legislation will not be scrutinised by the European Parliament. It will not be scrutinised by any parliament at all until it arrives here in the form of a statutory instrument. Some of the material we are discussing is important for individual liberties. So I have some concerns. I hope that the Government will be able to reassure us, at least to some degree, on these points.
This is the most depressing piece of legislation that I have seen for a long time. I find it extraordinary that the Government cannot understand, or appear to fail to understand, anything about the basis and the roots of our historic British constitution. They fail to understand that the British people owe their allegiance to the Crown in Parliament. That is the only way in which laws should be made.
The reference to the third pillar goes very wide of that concept. The clause allows Ministers to make laws, agreed in secret in Brussels, which would have a very wide effect. To introduce them by the back door, through rushed legislation, is an abuse of Parliament, an abuse of privilege and an abuse of executive power. The idea that by bringing in as yet unapproved European legislation by statutory instrument to try to stop a brace of Arabs flying some hijacked aeroplanes into some skyscrapers in New York fails every test of logic that has been given.
It is an incredible achievement for the Government, in their failure to understand British constitutional history and the checks and balances for which our ancestors fought, to fail even to get the Liberal Democrats—who are Euro-creeps par excellence—to agree with them on this issue. I was mildly ill mannered to the Liberal Democrats in our debate last week. On this occasion they must be congratulated on going back to the roots of their Whig forebears.
Everyone has said that this part of the Bill is a disgrace. If we in Parliament do not protect the rights and privileges of Parliament, the rights and privileges of free-born Englishmen, and the rights of privileges of our descendants, which were fought for by our ancestors, it will be an appalling failure of duty.
I have put my name to the Motion to leave Clause 110 out of the Bill. But it may be convenient for me to speak at this stage rather than in the clause stand part debate.
I entirely agree with the noble Lord, Lord Wallace, although I thought that he put the case somewhat too moderately. The powers given by Clause 110 are, first, an unprecedented use of subordinate legislation. Secondly, they are largely irrelevant to the fight against terrorism, and, thirdly, they are—I shall not be quite so emotive as the noble Earl, Lord Onslow—a very serious invasion of the individual's rights and liberties.
The clause gives the Government power not only to enact by subordinate legislation a series of offences, but also to give powers to European policemen to authorise searches. They would give power to enact the European arrest warrant—which every Member who has spoken in debates on the Bill, apart from the Minister himself, regards as a very serious matter.
The Government will tell us that they have already said they will not introduce the arrest warrant under these procedures. But that is merely an example of what they could have done under these powers. It is only by the pure coincidence that it happens to be already on the stocks that they have given this one-off undertaking.
To see that what is proposed is an unprecedented use of subordinate legislation, one has only to look at the report of the Delegated Powers and Regulatory Reform Committee. The committee states that,
Xthere is no precedent for the grant of powers to amend United Kingdom law by order in such important and sensitive areas"— namely, in the areas of crime and civil rights—
Xand the seeking of such powers in an emergency bill which is expected to pass through all its stages in both Houses of Parliament within some three weeks is truly innovative".
For a moderate and controlled body such as the Delegated Powers Committee to describe something as Xtruly innovative" is rather like Sir Humphrey Appleby describing something as Xcourageous"—it means that it is total folly.
Secondly, it is clear that the provision is largely unrelated to terrorism. Clause 110(5)(d) enables the Government to create a criminal offence, unless it is punishable by more than two years. There is not much terrorism that is punishable by less than two years. That is an attempt to smuggle measures through on the bandwagon of the emotion of September 11th.
The noble Viscount has referred to the restriction in subsection (5). Has his eye been drawn to subjection (6), which limits even that narrow restriction that he has just referred to?
The noble Lord is right. There are two powers: one to deal with certain specific offences that are related to terrorism and have the potential to attract large criminal sentences; and a more general provision in relation to anything that the European Union wants under the third pillar, unless in general it attracts a sentence of more than two years or, in a magistrates' court, more than three months. What on earth have offences that attract such sentences to do with terrorism?
This is a serious invasion. The European warrant is a good example. If it is passed, it will change the entire principle of extradition. Some aspects of it may be very good, but changes to our centuries-old system of extradition to allow anyone to be removed to any country on the mere say-so of a judge of that court should not be made by subordinate legislation. Such proposals need to be thought through carefully.
The Government may say that it is all right because everything goes to the European Union Committee for scrutiny before any decision is taken by Parliament. The arrest warrant is a good example of what really happens. The proposal came from Europe so rapidly that the Select Committee had the opportunity for only one meeting. It put in a lot of reservations. We shall see in the next three days whether any of those will have any effect. The whole thing has been rushed through. Scrutiny committees cannot be an alternative to proper legislative debate and amendment.
The Government may also say that there is no advantage in having primary legislation because once we have signed up to a proposal in Europe we are stuck with it anyhow and we have to enact it. The answer to that is twofold. First, when it is enacted, even after it has been blessed in Brussels—if that is the right verb—we still have a chance to see how it is going to be implemented and to put in such controls as we can. Secondly, and much more importantly, if the Government know that they have to come to Parliament with proper legislation, they will be much more cautious about what they agree to in Brussels.
In my view, the right thing to do would be to strike out the clause completely, but I would be perfectly happy with Amendment No. 126D if the Government were prepared to accept it.
I want to draw attention to an intervention by the noble Earl, Lord Russell, during my Second Reading speech. The Committee will be relieved to hear that I do not have the slightest intention of repeating all that I said then, although I have fundamental objections to the clause. The noble Earl took me somewhat by surprise when he rightly pointed out that if, as a result of second stage reform, your Lordships' House were to lose the right to reject an affirmative order that came before us, we could be in the absurd position of being unable to stop a regulation that created a new criminal offence carrying unlimited imprisonment.
That shows the potency of the powers that the Government are seeking. It is extraordinary that they should be seeking the power to create new criminal offences, which may have nothing to do with terrorism, with unlimited imprisonment. I do not believe that the Minister, who is a reasonable enough chap, would insist on the Government taking such powers in a Bill that is supposed to be a proper reaction to the terrible events of 11th September. I see that the noble Lord, Lord Brennan, is in his place. I hope that he may intervene this afternoon. He made the telling point the other day that, by this clause, the Government are taking power to remake our criminal law. Article 31(1) of Title 6 says:
XCommon action on judicial co-operation in criminal matters shall include . . . progressively adopting measures establishing minimal rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking".
I cannot believe that the Government really wish to take power to change our criminal laws in that way by delegated legislation and to do so in a Bill against terrorism. Those powers go much further than can possibly be argued to be necessary to meet the threat with which we have been faced since September 11th. I support the amendment, although I feel that the only correct approach is to remove from the Bill a clause that cannot seriously be said to be a necessary reaction to the threat from international terrorism.
Like the previous speakers, I would like Clauses 110 and 111 removed from the Bill. That would be the only satisfactory safeguard. Nevertheless, the noble Lord, Lord Wallace, is to be congratulated on giving us an alternative to discuss.
It is surely a disgrace that such provisions should reach this House without having had any scrutiny in the elected House. We should begin to wonder what the House of Commons is about when it allows such serious provisions to be put into an emergency powers Bill without scrutiny in Committee, on Report or at Third Reading. The Commons should have discussed these matters properly.
If these provisions had been brought forward by a Tory government, there would have been hell to pay from the very people who are now proposing this legislation. For example, they would have been described as being Right-wing extremists, or even as fascists. Nevertheless, the Bill is proposed by a Labour Government.
The provision goes extremely wide. The noble Lord, Lord Waddington, has just mentioned some of the problems that will arise and some of the powers which will be given to government to agree, behind closed doors in Europe—powers given to Ministers other than have been elected by the British people. When those proposals come back to Parliament, it will not be possible to amend them in either House because our power of amendment is to be removed. They will therefore have to go through exactly as negotiated by British Ministers with other Ministers who, I repeat, have not been elected by the British people. That is quite unprecedented in matters of this kind.
The Government say, XWe have done this on the environment and in other areas". But we are talking about people's rights and freedoms, which have to be protected through the law. We are here giving powers to Ministers to alter the law without primary legislation having gone through both Houses. It simply cannot be accepted.
The Daily Telegraph summed up the position reasonably well in a leading article on 30th November. It stated:
XThe proposed law allowing EU justice and crime measures to be put through Parliament by ministerial order, rather than by primary legislation, should be fought tooth and nail. It is hard to know the possible consequences, but they could certainly include a Greek court, for example, being empowered to demand that a British subject living in Britain should be arrested and brought before it, without any chance to resist the demand in a British court. It is proposed, too, that police should be able to obtain information about any suspected criminal—not only terrorists—from public bodies such as the NHS or the BBC. The possibilities for abuse of such powers are extremely worrying".
That sums up the position extremely well. I hope that the amendments will be put to the vote and, if they are, that the Committee will support them unreservedly.
I do not know whether I qualify for the description of the noble Earl, Lord Onslow, of a Euro-creep. Certainly those of us who have put in some hours in the salt mines are well cured of Euro enthusiasm.
I should like to make two general points, which I believe focus specifically on the clause before us. First, we should remind ourselves that in the European Union we are slightly making it up as we go along. It is a unique constitutional experiment and we will make mistakes. One of the areas where we are lagging behind, if we believe in intergovernmentalism, as I believe most Members of your Lordships' House do, is in ensuring that national parliaments are grafted into the procedure. At the moment that is an astonishing weakness in the structures, and one which I hope the British Government will address at the next intergovernmental council.
Secondly, we still stick to the arcane Ponsonby rules and pretend that many of the items issuing from the European Union are of foreign treaty, whereas in effect they are a kind of hybrid. They are not a foreign treaty; they are regulations which produce laws in this country. My view is that the provision the Government are seeking to bring forward is deeply damaging to those of us who hope and seek to make the European Union work. It is simply not presentable.
I am prepared to argue to most of my fellow citizens that British sovereignty does not hinge on the whitefish regime and indeed that British sovereignty is better exercised in trade matters, in co-operation with our partners in the European Union. I do not think that I, or many of my fellow citizens, believe that matters like foreign policy, home affairs and defence are not matters of national sovereignty. I have been happy to argue to Euro-sceptics anywhere in the United Kingdom that intergovernmental matters are matters which are decided in Parliament by the British Parliament.
What this clause damagingly seeks to do is bring to Parliament by secondary legislation measures which, as my noble friend Lord Waddington pointed out, go to the heart of our criminal procedure in Britain, without any proper debate in the British Parliament. That could be deeply damaging to those of us who seek to promote the European cause.
I very much hope that the noble Lord, Lord Rooker—who is indeed a reasonable man—will take these concerns, expressed by Euro-enthusiasts and Euro-sceptics alike, to heart and withdraw the clause. That would be my preference. If not, I shall have no hesitation in supporting the amendment that has been proposed.
I warmly support the Government in bringing forward emergency legislation on international terrorism at this time. As was pointed out earlier by this House, it should apply to all international terrorism, not merely with the IRA and the Loyalist terrorists exempted. However, I think that Clauses 110 and 111 have no place in this Bill.
When I first looked at this matter, I was very struck by the seventh report of the Select Committee on Delegated Powers and Regulatory Reform, to which my noble friend Lord Bledisloe referred. It is a very sober and judicial committee. It does not become excited and get carried away, as some of us may do. I noted that what it said, however, was very strong. The Select Committee pointed out that the Bill conferred a very wide power to implement, by secondary legislation, measures adopted under the third pillar. It said that it is,
Xstill a dramatically wide power to rewrite the Statute Book in the criminal justice context", and that:
XThe fundamental issue is whether this procedure, which currently applies to economic and regulatory measures, should also apply to the most sensitive areas of policing and criminal justice, with the potential to impinge on individual rights and liberties".
It pointed out that Justice had serious concerns about the delegated power proposal. It said, as my noble friend pointed out, that there is no precedent for the grant of powers to amend United Kingdom law by order in such important and sensitive areas.
So strongly did the Select Committee feel that, over the page, it said it all again: that this was,
Xby far the most sweeping general provision for the creation of offences by secondary legislation that we know of", and that the clauses raised issues of great significance. I think that we should pay very careful attention to those words. The noble Lord, Lord Stoddart, said that the other place had not scrutinised the measure. That is true; none the less in fairness I should point out that the Home Affairs Committee of another place considered the matter and concluded at page 17 of its first report:
XWe view with concern the broad power to implement justice and home affairs measures under the third pillar of the Treaty of European Union—whether concerned with terrorism or not—by means of secondary rather than primary legislation".
The whole case against the inclusion of Clauses 110 and 111 was made in a notable speech at Second Reading by the noble Lord, Lord Waddington. The case that he put then was overwhelming. We in this Chamber are being asked to agree a procedure under which not only the measures agreed in the European Union after September 11th, but all that went before and all that will happen in the future, will be settled by secondary legislation by the executive without any scrutiny by either House of Parliament except the affirmative procedure which, of course, is very much weaker than proper discussion. Neither this Chamber nor the other place will have any opportunity to discuss and consider properly these measures which will have great consequences for individuals who may find themselves hauled off abroad in connection with offences which are not offences in this country. I very much hope that the Government will think again and either accept the Liberal Democrat amendment or, even better, strike out the two clauses altogether.
The noble Lord, Lord Moran, reminded the Committee of what the Delegated Powers Committee said. I am a member of that committee, and I am glad that he has done so. I refer to page 24 of our seventh report where an extract from a memorandum by Justice is printed which reminds us that the power we are talking about,
Xwill apply even where the measures implemented are contrary to existing primary legislation: Ministers will be able to repeal existing primary legislation by means of secondary legislation".
That is the extent of the power we are talking about: it seems a fairly extraordinary proposal.
I was interested to note that the noble Lord, Lord Wallace, introduced the amendment we are discussing. He is the chairman of the committee which has the job of scrutinising third pillar recommendations. When I served on that committee—I expect that a number of Members of the Committee are present or past members—I remember the difficulty involved in carrying out any scrutiny at all of these issues. It has been explained that that is due to recommendations arrived at by negotiation. Ministers negotiate intergovernmentally and, as they are all answerable to their own parliaments, what they decide goes straight back to their own parliaments in the relevant member states. I think that the noble Lord will agree that very often the committee is, as it were, chasing the issue which is under discussion at the Council of Ministers. Before it has time to catch up, suddenly it is a fait accompli and will simply whistle through both Houses as an order. That is completely undemocratic. There is no scrutiny at all. It is, in fact, a constitutional monstrosity and simply cannot be allowed.
At Second Reading the noble Lord, Lord Rooker, made extremely friendly noises about the committee's recommendations. I had expected to hear before today's debate that he had accepted what the committee said. I am disappointed that that has not occurred. If he intends to accept what the committee said, we shall have wasted our time. But if that does not happen, I hope that we shall vote on the matter, either today or certainly on Report.
I thank the Government for bringing forward this important Bill, but I share the reservations raised in connection with Clause 110. As a relatively new Member here, I should find it difficult to persuade colleagues and members of the public how Clause 110 as currently drafted takes forward the fight against terrorism. I hope that the Minister will concede that the clause could be better drafted. Like other speakers, I support the amendment proposed by the noble Lord, Lord Wallace.
The absence of necessity for Clause 110 must lead one to hope that the Government will not press it. Unlike the noble Baroness, Lady Carnegy, I am glad that the Minister has not intervened too early for it has allowed a wide spectrum of views to be expressed and many arguments to be deployed which have wisely pointed to the exceedingly large number of disadvantages in what is proposed.
There is one issue that I have not heard explicitly raised; that is, the position of Scotland. The Executive of Scotland is responsible for some of the matters that are covered by the issues in Clause 110. I should be interested to know whether conversations have taken place on that matter between the Minister for Justice and Deputy First Minster, Mr Jim Wallace, and Home Office Ministers. I find it hard to believe that Scotland, which has cherished the independence of its legislative process for criminal law, should have conceded the acceptability of this measure. In 200 years of close union it has not been thought necessary to provide for a measure of this kind in Scotland.
Although we are moving—some of us are happy to see this—towards ever-closer union within the European Union, that does not underwrite a mode of democratic procedure in the slightest degree comparable with what is proposed here. There is no analogy between the third pillar and matters handled under the first pillar by a wholly different legislative process. The very fact that this is a third pillar matter underwrites the wisdom of making these distinctions at earlier Heads of Government conferences. I hope that the Minister will not force the Committee to rely upon my noble friend's excellent amendment but will simply indicate that this is a misconception and one which either now or at a later date the Government will withdraw.
Will the noble Lord, Lord Rooker, who undertook continually to discuss the Bill with the Scots Parliament, indicate whether he is discussing this particular issue? I intended to comment on that matter as the Scots Parliament will have to implement all this by secondary legislation, as will Westminster if the Bill is passed, and I am perfectly certain that it will not want to do that.
I support the Bill almost entirely, but in this instance I agree with the noble Lord, Lord Wallace, and my noble friends Lord Williamson, Lord Bledisloe and Lord Moran, that the whole Bill is a bit like the man boarding an aeroplane who is having his heavy luggage weighed and is asked by the staff, XHave you left this luggage unattended? Have you packed it all yourself? Have you packed anything that was given to you by anyone else?" The man replies, perfectly truthfully, XNo". However, he then proceeds to take a whole lot of hand luggage with him about which he has said nothing. It seems to me that these clauses constitute part of the hand luggage.
I like that analogy. I am tempted to intervene in a debate in which the case has conclusively been made for one reason only; namely, that I was the Minister who took the then Police and Criminal Evidence Bill through the Chamber in, I think, 1984. I remained interested and closely concerned with criminal justice thereafter. I am aware of the immensely intricate structure of which our criminal justice system consists and of the difficulty of amending it in one place without affecting it deleteriously in another.
Members of the Committee are well aware of what the third pillar is and they understand the difference between primary and secondary legislation. However, for those who are following this matter from outside, I believe it is worth saying that primary legislation is debated in both Houses, and in this House every part of it is discussed and can be altered. Secondary legislation can be discussed in both Houses but cannot be altered at all; it can only be accepted or refused.
The possibility of something being generated in negotiation with our European partners into a shape which can amend our criminal justice system in one place without having deleterious effects in another and of our being aware of any deleterious effects that there might be without extensive debate in this House of the type to which we are accustomed seems to me remote in the extreme. I regard this proposal as exceedingly dangerous. I greatly support the Liberal Democrat Front Bench on this occasion and, indeed, shall support my noble friends when we come to debate the Question of whether this clause should stand part.
I begin with something of an apology for not having been in my place at the start of this debate. I shall trim my remarks accordingly. I have tabled a modest amendment, which at least has the merit that its meaning can be understood at first reading. That is quite a rare feature of amendments.
The noble Lord, Lord Stoddart, raised the interesting notion of what the reaction would have been had the present Opposition been in government and produced legislation of this kind. I believe that there would have been a volcanic reaction against it. Compared with that, what is being said very reasonably from this side of the Chamber is most restrained.
I have come to believe, first, that all governments increasingly tend to identify their own convenience with the national interest. Secondly, governments, although not themselves intrinsically stupid, tend to find it easier to do stupid rather than sensible things. It is in the power of Ministers this afternoon to rebut both those propositions. They can accept one or more of the amendments that have been tabled; they can announce that they have decided to reject both these objectionable clauses; or, alternatively, they can come forward with something better of their own. If they do not, I believe that they will be admitting the reasonableness of the two propositions which I have put forward, and I hope that they will decorate themselves with them.
We are exceedingly fortunate to have the guidance of the Select Committee on Delegated Powers and Regulatory Reform. On the off-chance—the awful possibility—that not all Ministers or their advisers have read every word of what is an extremely weighty report, I venture to quote a number of sentences from it.
First, on page 4, there is a clear statement that,
Xthe power is still a dramatically wide power to rewrite the Statute Book in the criminal justice context".
I cannot help feeling that, however devoted the Government may be to every line of the Bill—I include in particular the Home Secretary, who is disappointingly inflexible in some of the statements that he has made—they cannot be entirely happy to have a committee such as the Delegated Powers Select Committee making that type of comment about legislation for which the Home Secretary is personally responsible.
There is a quotation from page 5 of the report which I believe should be written into the record of this debate:
XSuch measures"— that is, measures now in contemplation at the European Union level—
Xwould obviously go much wider than the ambit of anti-terrorism legislation . . . But there is no precedent for the grant of powers to amend United Kingdom law by order in such important and sensitive areas, and the seeking of such powers in an emergency bill which is expected to pass through all its stages in both Houses of Parliament within some three weeks is truly innovative".
Again, that is a statement which I believe Ministers will ignore at their peril. If they do not observe its meaning and withdraw in the face of it, I believe that they will be left with a great deal of which they will be thoroughly ashamed in the future.
The committee's conclusion in paragraph 13 is that it is,
Xof the view that the powers to implement by secondary legislation proposals under the third pillar should not be granted except to allow the implementation of a measure which the Government can demonstrate is a key element in its emergency proposals and yet not of such importance as to warrant primary legislation".
I hope that Ministers have already read those quotations and have them in mind. If they do not, I have at least refreshed their memories. If they do, I hope that they will apply their minds to giving a lucid, clear and potent answer to what the Select Committee has said. To my mind, it is totally and wholly unanswerable.
In conclusion, I welcome something which does not always happen to me; that is, to have an opportunity to echo with warm agreement what was said by the Leader of my own party in another place. I also agree very warmly with what was said recently by my honourable friend Mr Oliver Letwin. He stated:
XWe have a case, therefore, against including clauses 109 and 110—at least as they are currently drafted—in emergency legislation, and a material case against them in any event. The whole point of the third pillar of the EU is that it gives member states an opportunity to continue to control the vital question of how they are governed from the point of view of their criminal law . . . we want these clauses to be restricted to the very narrow extradition proceedings to which the UK is already committed, and thereafter to lapse, so that we can return, as we believe that we should, to implementing EU third-pillar decisions in primary legislation".—[Official Report, Commons, 19/11/01; cols. 42-43.]
The Government asked Parliament and the nation to pass this measure with quite exceptional speed. On the whole, most of us went along with that very willingly. I believe that it would be intolerable, and those of us who were perfectly happy to do so would feel badly let down, if the Government, in the name of convenience only, were simply to extend slightly the boundaries of their previous intention because of some definition difficulties or whatever. It would be monstrous. Any trust which other parties may have in them currently would be very seriously diminished.
I shall be brief because having listened to the debate this afternoon, I find that I have nothing new to say. However, it is worth making a few remarks, if only to bring home to the Government the almost universal strength of feeling about Clauses 110 and 111.
Generally speaking, I am in favour of the proposed legislation and want to see the Bill on the statute book as quickly as possible. The Government are right to introduce emergency legislation to deal with terrorism, but I am not persuaded that these clauses are necessary to prosecute the fight against international terrorism, as the noble Lord, Lord Moran, said. On the contrary, I believe that they carry with them grave dangers to our constitution, as the noble Earl, Lord Onslow, said, although I would not attempt to emulate his celebrated impression of Sir Laurence Olivier in putting forward that proposal.
Shorn of its formal drafting language, the Bill is asking us to approve a situation in which it will be possible for the government of the day, of whichever political persuasion, to implement without primary legislation decisions on matters of British law, together with any consequential criminal penalties, which have been arrived at in negotiation between Ministers in Brussels. As other Members of the Committee have said, that would place an unacceptable instrument of power in the hands of the executive.
It is not just a matter of crime and terrorism. The proposal means that any measure agreed under the so-called third pillar by European Ministers can become the law of this country without any of the checks and balances by which Parliament can call the executive to account. Parliament has already been dangerously marginalised and emasculated. Day after day one sees evidence of the fact that Parliament is no longer taken seriously by the executive. It is ignored and is often placed second in the considerations of the executive in putting forward and seeking agreement to it policies.
The implications of these two clauses need to be studied at great length and depth by both Houses of Parliament before they can be contemplated. I want to make the point forcefully that it is not acceptable that a constitutional change of this magnitude should be slipped into a Bill that is supposed to be an emergency measure designed to fight international terrorism. It is a sleight of hand and one that the Minister will now realise has no support in this Chamber and almost universal opposition elsewhere. If the amendment is pressed to a Division, I shall support it, but in the long run, the best thing for the sake of Parliament and the country as a whole would be to remove the clause altogether.
I am in the happy position of agreeing with everything that every Member of the Committee has said, so I can be exceedingly telegraphic.
Intergovernmentalism is an admirable principle, but in practice it works very badly. The legislature under the third pillar consists of three ingredients. First, there are the senior officials who prepare measures; secondly, there are the ambassadors who convene to discuss them; and, finally, there are the Ministers in the Council of Ministers who determine them. All three layers meet in secret. There is no involvement of the European institutions, including the European Parliament, on the one hand, or of national parliaments on the other.
In Clauses 110 and 111, the Government could be described as approaching the implementation of these measures in two ways. The first is to say that they are guilty of a disingenuous act of cynicism in trying to evade parliamentary scrutiny. That has been the theme and tenor of so many speeches this afternoon. The second reason may be that the Government have concluded that whether decisions made by the Council of Ministers at the third pillar are implemented by delegated or primary legislation matters not a jot. Once the framework decision is taken, the nature of the obligation on the member state is so strict and severe that the room for national parliamentary manoeuvre is zero.
Rather than, for example, providing for the European arrest warrant under Clauses 110 and 111, the Government have offered the option of having the matter scrutinised with the full panoply of a Bill. But what difference will that make? Once a third pillar decision has been taken in secret by the Council of Ministers, what difference will it make if the matter is dealt with by primary rather than delegated legislation?
My noble friend Lord Garel-Jones, in his interesting intervention, said that the original idea behind inter-governmentalism was to replace the European institutions with the national Parliaments. But what has happened is that the European institutions have been displaced but the national parliaments have no role whatsoever. The only meaningful role that the national parliament can have in this matter must be before the decision is taken by those three layers. What role have your Lordships or those in the other place had in that decision? We have had virtually none.
Your Lordships' House should be involved much earlier in the scrutiny of third pillar matters—much earlier than at the Committee stage of a Bill. We should devise a procedure whereby we send a Minister to negotiate only when he is absolutely clear about the limits of his or her discretion. Those limits will determine the limits of our ability to make changes to what has been decided in Brussels when we implement the law.
That matter goes beyond the specifics of the Bill into the formidable territory of the relationship between our Parliament and the European institutions in the years to come. I shall be interested in the Minister's reply.
The noble Earl, Lord Onslow, is always extremely kind.
Several Members of the Committee, in discussing Clause 110, have reflected on the report of the Select Committee on Delegated Powers and Regulatory Reform. On Second Reading my noble friend Lord Rooker said that he was examining the four recommendations and that we would do our best to meet the spirit of those recommendations. I believe that he went on to say that the four recommendations were reasonable and that if we could not meet them we would need good reasons for not doing so.
The Government are still reflecting not only on what was said by the Select Committee but on what is being said today. No Member of this Committee has listened to what has been said without realising that there is a formidable power of argument that has considerable concerns about these clauses. We undertake that we shall consider carefully everything that is said, not only in the report but in Committee today.
The noble Earl, Lord Onslow, is right that history is important, but so is the future. The noble Earl used characteristically colourful language to remind us of the events of September 11th. However, we need to reflect on the power of international terrorists to wreak appalling ends on innocent people.
The noble Viscount, Lord Bledisloe, also accused the Government of using what he called a bandwagon of emotion about September 11th to Xsmuggle in"—I quote his words—the measures. That was unfortunate phraseology and I hope that he will reflect on his remarks. The Government do not believe that September 11th can be so easily put to one side. It was not a blip in the history of terrorism. As many Members of the Committee said, what happened on September 11th was a real change in the way international terrorists work. As we know, there is organised terrorism in the world, and it can be horribly—devastatingly—effective. It crosses international barriers and it tries to exploit any loophole that it can find in the workings of our international institutions. In the Bill we seek to stop terrorists having the chance to exploit those loopholes and to put positive powers in the hands of those who really are in a position to challenge the terrorists.
I turn to the amendments.
I was going to explain why the measures are in the Bill. The point about terrorist offences not being covered by offences involving sentences of two years is something of a false analogy. There is a two-year limitation because that is what the power in the European Communities Act 1972 for the first pillar—the enabling provision—states. Subsection (7) contains the power to create offences with longer sentences.
I shall explain why the measures are in the Bill. That will enable us to discuss the amendments. Amendments Nos. 126B and 126C, which are Liberal Democrat amendments, would, taken separately, negate the entire purpose of Clause 110. There may be a problem with the double negative, but I suspect that that is just a drafting problem.
Amendment No. 126D, which is also a Liberal Democrat amendment, would limit the enabling powers that will be conferred by Clause 110 to the implementation of just a small part of the EU's action plan against terrorism. The EU's framework decision on combating terrorism will create common definitions of terrorist offences and impose common penalties across the EU. That is to be welcomed, but it is only a very small part of the EU's fight against terrorism. The EU is taking action to tackle terrorism across the board through rapid and effective judicial co-operation and swift action to freeze the assets of terrorists and by allowing our law enforcement agencies to work together in joint investigative teams.
I am grateful to Members of the Committee for recognising our commitment to implement the 1995 and 1996 extradition conventions by the end of this year. I hope that they also recognise the importance of the other measures that have been taken through the EU on anti-terrorism, including the framework decision on combating terrorism.
I turn to Amendment No. 126E, which is in the name of the noble Lord, Lord Peyton. That amendment would restrict the relevant powers to measures that deal specifically with terrorism. However, for practical purposes it is not possible to separate out terrorism from other forms of serious crime. The point is well illustrated by the draft framework decision on asset freezing. That would allow mutual recognition of freezing orders concerning serious crimes, including terrorism, drug trafficking and money laundering. It cannot have escaped the attention of any Member of the Committee—we have discussed this in the House—that drug trafficking has been connected, as a source of finance, with the terrorist organisation in Afghanistan. It is enormously difficult—I should say that it is impossible—to separate the two matters in the way the noble Lord proposes.
Surely it is possible to separate xenophobia and terrorism? If the Minister reads Title VI as a whole and the whole of Article 29, that should make it clear that the power to legislate by delegated legislation includes a power to deal with, for instance, xenophobia. What on earth has that got to do with the present emergency or with terrorism?
The amendment involves separating out terrorism. My sole point is that it is enormously difficult to separate out issues such as drug trafficking or trafficking in human beings. We have discussed that many times in the House. I thought that most of us were united in the view that such criminal activity, as it relates to terrorism, becomes part and parcel of terrorist activity itself.
I shall take further advice on the point involving xenophobia, which clearly considerably exercises the noble Lord, Lord Waddington. However, I do not think that that point undermines the main thrust of my argument about other terrorist activities.
Our efforts in relation to trafficking in drugs or individuals—I was discussing those examples—could be vital in securing terrorist assets, which would otherwise be dissipated or destroyed. The amendment would restrict regulations under the new clause—
The point that I am trying to make—clearly not as successfully as I had thought—is that Amendment No. 126E seeks to limit this part of the Bill solely to terrorism. The Government do not believe that it is possible to define terrorism in a way that would distinguish it from activities related to it. I have referred in particular to the crimes of trafficking in drugs or people because we know that they are connected with terrorism. The Government do not believe that it is possible to separate out those matters in the way the amendment proposes.
I did not hear the first part of the noble Earl's point.
As I understood the Minister, she said that one cannot separate terrorism and define it. Ergo, that means that we are taking powers to deal with any crime. That is the logic of what she said. I thought that we were trying to define matters involving terrorism as closely as we could because, in relation to terrorism, some of us will reluctantly go along with emergency legislation. However, we will not go along with general broad-sweep definitions or her argument that she cannot define terrorism and that it has to include other matters.
My point is that other crimes fund terrorism. To try to separate out terrorism in the way the amendment proposes is not a practical option. That is a relatively simple point. The noble Earl may disagree with me, and I am sure that the noble Lord, Lord Peyton, does. But the Government's view is that it is not possible to separate out the matters in a practical sense because the other crimes are the source of revenue for terrorists.
Is the Minister seriously saying that it is necessary to take power to change our criminal law in almost any respect in order to further the fight against terrorism? I do not have a fixation about xenophobia; I was using that as an extreme example. Does she realise that, in effect, the Government are taking power to change our criminal law in virtually any respect? Why is it necessary to change our criminal law in any respect in order to further the fight against terrorism? That is the simple question.
I do not believe that that is so. I believe that it is important to try to close the loopholes in the definition of Xterrorism". We want to take these powers in order to frustrate the terrorist. We are listening carefully to what is being said, but at the moment I hope that I am doing my duty to the Committee by explaining why the Bill is framed as it is. Your Lordships may disagree with that but we shall consider what has been said.
From all sides of the Committee, the arguments have been put carefully, but now I have to try to explain why the Bill is framed as it is. Your Lordships believe—at least the noble Lord, Lord Peyton, does—that it is right for terrorism to be dealt with separately. The Government's belief is that that is not a practical option because of the close links, acknowledged by your Lordships, between some kinds of criminal activity and terrorism.
I would never join in any accusation of the noble Baroness failing to do her best to help your Lordships' House. I tabled my simple amendment confident in the knowledge that the Government, in introducing an anti-terrorism Bill, knew what they were talking about. If we need a definition of Xterrorism" before any amendment similar to my amendment becomes acceptable, I cannot believe that it is beyond the power of the Government to take the matter away and say that they will introduce a new amendment on terrorism that will include those activities that can be taken as within the curtilage of terrorism. If they produced something like that I would be content. However, I find it difficult to accept that the Government are incapable of defining a word that is in the title of the Bill.
On a slightly different point, many noble Lords are now familiar with the issues that those who moved the amendment genuinely want decided and to which they would like answers. The generosity of the Minister in giving way is producing a strong desire in some noble Lords for her to take the opportunity to divulge at least five or six paragraphs of answer to the questions that are now familiar to many of us.
Before the Minister replies, perhaps I may add to what the noble Lord, Lord Peyton, said. By definition, a terrorist is willing to commit any criminal offence. Therefore, we are being asked to allow a system whereby, through the European Union, the whole of our criminal law will be subject to change by secondary legislation, which is simply not acceptable. I am trying to be helpful to the Minister. The only way to answer this matter is for a British government—this problem has faced successive governments—to bring forward proposals that will graft national parliaments on to these secret discussions, as they are now described. That is the point raised by my noble friend Lord Kingsland. That and nothing but that will satisfy Parliament.
I look forward to dealing with the matters in relation to Parliament, which I shall do once I have had an opportunity to answer the points raised by the noble Lord, Lord Peyton. I hope that I shall not trespass much longer on the patience of the noble Lord, Lord Marsh.
The Government always believe that they are putting forward the best legislation to meet their purposes at the time. Sometimes governments are accused of arrogance and of not listening to what is said. I hope that I have not displayed such arrogance; I hope that I have listened carefully, as has my noble friend Lord Rooker, to what has been said. I shall take on board the remarks that have been made in Committee. I do not believe that I can say fairer than that.
I remind noble Lords that the situation is difficult. Terrorists have rewritten the rule book and we have to consider how to respond. I hesitate to return to the amendment, but it would restrict the regulations under the new clause to dealing with the orders freezing international terrorist drug money. In practice it is not particularly easy—in fact it is almost impossible—to distinguish such drug money from other forms of drug money and the result will be confusion and delay. I recognise that that is not necessarily the view of the noble Lord, Lord Peyton. My noble friend and I shall reflect upon what has been said, although most of the arguments of your Lordships have concerned the powers and the role of Parliament. I shall now turn to that subject.
Considerable concerns have been expressed in Committee about the assault, as some noble Lords see it, on Parliament by the executive. This power is no different from the power that has existed for the past 30 years under Section 2(2) of the European Communities Act 1972 relating to the implementation of European Community obligations. As your Lordships know, that power allows for the implementation of agreement in areas of great importance; for example, in employment and social policy, in agriculture, and in competition issues. It also allows for the creation of new criminal offences and has done so on over 100 occasions.
In framing the legislation as the Government have in the Bill we have deliberately sought to allow the maximum parliamentary oversight by stating that all the secondary legislation under the enabling power will be subject to affirmative resolution. There will be an opportunity for parliamentary debate on every occasion. Many of the changes will be small, technical tweaks, if I may so describe them, to existing legislation, although others will naturally be much more substantial.
That is in contrast to Section 2(2) of the European Communities Act which allows the Government to choose to use negative or affirmative resolutions. As your Lordships know, the JHA Council can agree police and judicial co-operation measures only by unanimity. Therefore, a United Kingdom Minister must agree the policy or the framework. All measures agreed by the JHA Council are then subject to the full scrutiny of both Houses while they are negotiated. Effective parliamentary oversight of JHA Council measures is dealt with through that scrutiny process, as I believe was acknowledged during the debate on the European arrest warrant.
I am most grateful to the noble Baroness for giving way. She may wish to reconsider the statement that all matters under the JHA Council are decided by unanimity. We shall come to this in the next group of amendments. If what has been agreed at Nice comes to pass, whether it is ratified or not, the requirement for unanimity will be deleted from nearly all of Article 24 of the treaty on European union. I put it to the noble Baroness that these are difficult areas. What she has said may no longer be the case under the Nice agreement.
We still have to complete our consideration of the Nice Bill, and ratification, as the noble Lord knows. I am sorry if there was a slip. I meant to say that as regards framework and policy arrangements there is unanimity. I apologise for that slip.
Perhaps I may return to the point I was making. During the debate on the European arrest warrant on 19th November, the noble and learned Lord, Lord Scott of Foscote, commented that,
Xthe Government will be under an obligation . . . to bring into effect legislation which corresponds to the decision which they will . . . have agreed [and] scope for manoeuvre will not be broad".—[Official Report, 19/11/01; col. 950.]
One or two Members of the Committee made some reference to what I might describe as the quality of justice in other member states, particularly those reflected in some recent newspaper articles. All EU members are mature democracies and if we are to work together effectively to tackle serious cross-border crime, we have to have confidence in the legal systems of our partners. But where necessary, minimum standards or conditions for mutual recognition will be specified. That is something which can be addressed, we believe, in the implementation stage of the relevant instrument.
There was a discussion about an alternative which might have been corpus juris, a body of harmonised EU law. But I do not believe that that would in any way attract the support of your Lordships' House.
There are a number of issues surrounding the concept of dual criminality. The fact is that that does allow for a degree of delay, obfuscation and confusion, which can be of crucial benefit to a terrorist. It allows those who wish to do harm to our societies more time to carry out their intentions. More importantly, it denies justice to the victims of terrorism. It is for that reason that we do not believe that it is any longer appropriate.
Perhaps I may answer the point raised by the noble Baroness, Lady Carnegy of Lour, as regards Scotland. We have discussed the matter with the Scottish Executive at official level. The Home Secretary has also discussed the matter with Mr Jim Wallace. The Bill allows for the Scottish Executive to pass its own regulations under this power in relation to devolved issues.
I believe that the Committee wishes to be in a position to toughen up EU-level action against terrorism. I do not believe that there is any difference in the Committee on that issue. We all believe that we need to take action against serious crime that is inextricably linked to terrorism, however we define that linkage. The Government have pushed forward the most effective measures possible in what are, I agree, very tight deadlines. But I assure the Committee that it is not the Government trying to attack the powers and privileges of Parliament, but recognising the realities of terrorism and crime in the 21st century. All police and judicial co-operation will be under some unanimity even post-Nice.
We have to reflect very carefully on what has been said this afternoon. I opened my remarks by reflecting on what my noble friend said at Second Reading. I am neither in a position now to withdraw the clause nor to accept the amendment. But my noble friend and I are in a position, as I have said, to reflect not only on what has been said today but to reflect as well on what was said in the Select Committee. On that basis I hope that the Committee will be content not to press this matter to a Division today.
Before the noble Baroness sits down—I am sorry to test her patience further—perhaps I may point out that in paragraph 7 of Select Committee report it is put forward, as I understand it, that at present on the agenda, or already under consideration for the procedure which we are now discussing, is a measure for the,
Xmutual recognition of pre-trial decisions, meaning that domestic courts would be bound by judicial decisions in other member states relating to matters such as evidence and the seizure of assets".
When the noble Baroness is reflecting, will she consider whether it is not possible to disentangle that kind of thing from the great matrix of interlinking with terrorism which the noble Baroness said that she could not escape for any criminal activity?
While the noble Baroness is reflecting on that point, she has just said that all matters under police and judicial co-operation in criminal matters will be subject to some form of unanimity. The amendments passed at Nice under Article 24 of the TEU make it clear that they apply also to the provisions under Title 6. What the noble Baroness has said may not be factually accurate if the Nice provisions come into force.
I shall write to the noble Lord. I understood that it was civil judicial co-operation that would be subject to qualified majority voting. If I have misunderstood I shall write to the noble Lord. I thank the noble Lord, Lord Elton, for the way in which he put his points about paragraph 7 of the report. We shall certainly look very closely at the points the noble Lord has raised.
The noble Baroness said that once decisions had been taken under the third pillar council by unanimity, the room for maneouvre for a member state would be very narrow and confined to technical matters. I therefore understood that the noble Baroness meant that, further, it did not really matter whether implementation took place by affirmative resolution or by primary legislation. Would that be a right conclusion to draw?
I was quoting and I am sorry if that was not clear. I was quoting what was said during the debate on the European arrest warrant on 19th November by the noble and learned Lord, Lord Scott of Foscote. I understand that affirmative procedures are very different from primary procedures and that is the purport of much of the concern that has emanated from the Committee today. They are very different matters and I would not seek in any way to pretend otherwise.
I was criticised in this debate for the moderation of my speech in moving the amendment. I plead in mitigation that I arrived by plane from Washington this morning and that I was not entirely wide awake.
Perhaps I may add that one of the points that most cheered me in the United States was the vigour of the debate there on how far the United States should compromise its civil liberties in the war on terrorism. Many supporters of the current Republican administration are themselves questioning the proposals that the administration are putting forward. I was most struck by two articles by William Safire, Ronald Reagan's speechwriter, vigorously attacking the powers which the Bush administration now wish to take. I note the silence on the Government's Back Benches on this clause. That speaks volumes in itself for the lack of enthusiasm on those Benches for these powers.
Yesterday lunchtime I was taken to the new memorial to F D Roosevelt, which has some wonderful quotations from his wartime speeches on the importance of maintaining one's commitment to civil liberties when one is defending civilisation. That is part of the context which we are now discussing.
Perhaps I may make three points about this clause. First, the Tampere European Council, in November 1999, agreed on a very ambitious five-year programme of measures in justice and home affairs to create an area of freedom, security and justice. As the noble Lord, Lord Waddington, and others have pointed out, that covers a very wide range of issues. Some of them are certainly to do with terrorism. Others concern immigration, asylum-seeking and a whole host of other matters. Some of them are terrorism-related, but not all crime falls into that category and not all serious crime is related to terrorism. Some of it is simply serious crime.
So far the Government have been inadequate in explaining to the Committee and to the public how important is this five-year programme. We are being asked to accept that we shall be taken further down this road, again without adequate explanation of its full implications.
Secondly, the noble Baroness says that this is no different from what has happened in the first pillar. But the whole point about there being a second and a third pillar is that there is a great difference. Indeed, both the previous and the present government have insisted on maintaining that difference. Part of the difference is that at European level there should be no parliamentary scrutiny and no judicial review of the second and third pillar. Therefore, in compensation for that, it is all the more important that there should be adequate parliamentary scrutiny and judicial review at the national level.
Should the Government propose to move these things to the first pillar, some scrutiny would be achieved. Matters of civil liberties, which are sufficiently close to the heart of democratic government and to the rule of law, are, as a noble Lord from the Conservative Benches said, slightly more important than the white fish authority.
That is indeed my third point. These issues are peculiarly sensitive to democratic governments. Therefore, they merit more, not less, thorough consideration than the regulation of economic transactions, which is the stuff of first pillar legislation.
I am unaware of any national parliament within the EU being asked to consider that such general powers are necessary to the current legislation. It is wholly inappropriate to take this occasion to ask for general powers in the third pillar. At most, we should be willing to grant a carefully circumscribed and time-limited power.
We do not intend to press the amendment to a vote at this stage. However, if the Government refuse to accept its substance, we on these Benches will decide whether to press it again on Report or to vote for the removal of the whole of Clause 110. From what we have heard today it is clear that the Government will lose that clause unless they are willing to make substantial concessions. I beg leave to withdraw the amendment.
I start by apologising to Members of the Committee that this is a manuscript amendment, which was tabled only this morning. However, I hope that I shall be able to persuade the Committee that the situation surrounding the proposed framework decision on the European arrest warrant has become so serious as to justify what might otherwise be judged to be somewhat precipitate action.
Most Members of the Committee will be aware that the noble and learned Lord, Lord Scott of Foscote, chairman of your Lordships' Sub-committee E, led an important debate on the proposed EU arrest warrant on 19th November after the sub-committee had been forced to consider it in unacceptable haste. As I understand it, the noble Lord, Lord Rooker—the Minister—has not yet been able to answer in writing the several questions which were put to him by noble Lords from all sides of the House, and indeed questions which he could not answer that evening either.
Indeed, I think that it is fair to say that universal concern was expressed at the proposal, which the Minister was unable to allay. I also understand that your Lordships' Select Committee has not lifted the scrutiny reserve on this proposal. Until it is lifted, the Government should not agree it in Brussels. That is still the nature of the agreement between the Government and both Houses of Parliament.
Notwithstanding that, I understand that the Government support the proposal. They appear to be preparing to vote in favour of it on 6th and 7th December in Brussels; that is to say, on Thursday and Friday of this very week. This is therefore the last chance that your Lordships' House will have to express an opinion on the proposal; hence the urgency of the situation.
I know that the Government have said that they will bring the decision for primary legislation in January. As we heard in the previous debate, and as the Minister admitted on 19th November, the Government's room for manoeuvre in that primary legislation will be so limited as to be non-existent once they have agreed the framework decision in Brussels on Thursday and Friday of this week.
It is, alas, also true that the Government do not have to listen to your Lordships' House today. They can also ignore your Lordships' scrutiny reserve. They can just proceed to agree to the proposal in Brussels under their treaty-making powers. But let us hope that your Lordships' deliberations today may have some effect on their actions later this week.
Any noble Lord who wants to appreciate the full gravity of what is proposed should read the debate on 19th November in the name of the noble and learned Lord, Lord Scott of Foscote. Many noble Lords, far better qualified than I to decide such weighty legal matters, contributed to that debate.
Perhaps I may remind Members of the Committee of the salient features of the proposed European arrest warrant. It is a proposal which has been maturing in Brussels for years but was somehow accepted by the Council of Ministers in the wake of the events of 11th September when presumably it was posed as an anti-terrorist measures. However, as the noble and learned Lord, Lord Scott of Foscote, said, it is hard to see that it has much or anything to do with terrorism. The warrant could be served for any offence punishable in the issuing member state by a prison sentence of at least 12 months.
Article 2 of the framework decision also contains a list of 24 crimes which do not have to be a crime in the country where the arrested person lives. Most of these crimes are already crimes here, but some are not, or at least require much clearer definition. For instance, there is the crime of Xswindling" or the crime of Xforgery of administrative documents and trafficking therein". I have put down Written Questions about the meaning of both those terms and have yet to receive a reply. I have to pray in aid the noble and learned Lord, Lord Scott of Foscote, who did not think that they were crimes in this country.
But perhaps the crime in this category which has attracted the most public disquiet is the crime of Xracism and xenophobia". In our debate on 19th November the Minister was unable to define the crime of xenophobia. He has since told me a Written Answer that the crime of Xxenophobia" will be what the member state which issues the arrest warrant decides it is. That situation will in fact apply to all the crimes listed in Article 2 of the framework decision.
During our debate on 19th November my noble friend Lord Lamont asked whether one could be arrested on an EU arrest warrant for a crime which one was alleged to have committed in this country, as defined by the issuing member state, even if the crime was not one in this country. That question took even the noble and learned Lord, Lord Scott, somewhat by surprise. It clearly floored the Minister. However, it has become clear from careful study of Article 2 paragraph 3 of the framework decision that my noble friend Lord Lamont had put his finger on one of the worst aspects of this proposal. British subjects and residents will indeed be able to be arrested and extradited for interrogation and trial on the say so of a magistrate in any of the other member states for doing something which is not necessarily a crime here.
I fear that that is not all. British subjects extradited for interrogation and trial in another member state will not be protected by the ancient safeguards of habeas corpus and trial by jury because they will come under the Napoleonic code with its system of instructing and visiting judges and so on.
Furthermore, the three other normal safeguards, which at the moment protect British subjects and others on our soil from inappropriate extradition, are to be swept away by European arrest warrants. They will not apply when a European arrest warrant is made. Those safeguards are, first, that a British court will no longer have to be satisfied that there is Xsufficient proof" against a person to justify his extradition; secondly, no longer will he have to be guilty of what we in this country regard as a crime; and, thirdly, the Home Secretary will no longer be able to exercise his discretion as to whether extradition is appropriate in all the circumstances of the case. None of the three existing safeguards will exist under the proposed arrest warrant procedure. The say-so of the other member states' magistrates will be enough and the person will have to be extradited within 30 days.
I apologise once again to the Committee that it should be someone of my limited legal knowledge who introduces the amendment today. I hope that my well-known Euroscepticism will not detract from your Lordships' objective consideration of the amendment. I believe that the situation is as I have represented it.
The Government still have time to refuse to agree to the proposal. It must be agreed by unanimity on Thursday and Friday of this week in Brussels. I should be most interested to hear the views of other Members of the Committee and to know whether they support the amendment. I hope that they will join me in asking the Government to resist this frightening proposal in Brussels this week.
We should be indebted to my noble friend Lord Pearson of Rannoch for explaining in detail the gravity of the proposal relating to the European arrest warrant. I do not want to go over the ground which he has covered and it is not my intention to use this opportunity to go into the merits of the proposal in detail. I want to underline to the Committee that if the power in Clause 110 is wide enough to allow the implementation by secondary legislation of a proposal such as this, it must be too wide.
That is the point on which we should continue to focus our attention. We spoke previously of the power being wide enough to allow the creation of any offence in this country. We are now dealing with another classic example of the width of the power. Although the Government have said that they intend to use primary legislation in order to implement the draft framework decision, no one can deny that Clause 110 is so widely drawn that if the Government wanted they could implement this framework decision by secondary legislation. And if the Government had their way, we could not have any real say on it in this Chamber and certainly could not veto it.
No one can deny that the proposal intimately affects the freedom and liberty of the subject. The measure would allow a British citizen to be removed from this country on the say-so of a foreign judge to face trial abroad for an offence unknown to British law. If that kind of new proposal can be implemented by the powers in Clause 110, there is something seriously wrong with the clause.
In answer to my noble friend Lord Elton, I hoped that I had made the position clear. Yes, the crime could have been committed in this country if the offence is listed in Article 2 of the proposed framework decision. The list includes the crime of racism, xenophobia, swindling, forgery and trafficking in administrative documents, trafficking and counterfeiting the euro, but not the pound or the Danish krona. So one certainly can be arrested for a crime which one is alleged to have committed on these shores, even though it is not a crime in this country.
I merely wanted to make the predictable point that it is beyond belief that for doing something which is not a crime in this country and which I did not know was a crime in Greece, I could be indicted by magistrates in Greece to appear before them without the protection of the British legal procedures. If that really is meant, it is the end of a long and honourable chapter in British history and one which, I should have thought, we should defend to the last.
Perhaps I may continue along the same lines. Twelve plane spotters are at present incarcerated in Greece for something which, in our opinion, would not be a crime but presumably is in Greece. If those plane spotters were returned to this country at the present time, they would be safe from extradition and prosecution. But once the European extradition warrant is in place they will not be safe because the Greek Government, or the judicial authorities, will be able to say to us, XWe suspect that the people you think are plane spotters are rather more than that and we want you to extradite them to us to be tried on the basis of the evidence we have received". It is a serious matter.
However, the problem goes deeper than the noble Lord, Lord Pearson, mentioned. He listed a number of items, including racism and xenophobia. The legislation will be serious for individuals and the newspapers of this country. I see in the Telegraph of Thursday 29th November—I am sorry to keep quoting it, but it provides good information—the heading,
XEU considers plans to outlaw racism".
And there is another thing the EU wants to do; namely, to make Holocaust denial or trivialisation of Nazi atrocities a crime also.
I do not want to deny the Holocaust because I was around at the time. I saw the pictures of Belsen and other camps. However, it has never been a crime for people to be able to express a different opinion, particularly in this country. I see no reason why people should not be able to continue to do so in this country, even though other countries may have a guilty conscience about what they did during the last war.
Therefore, the provision could go much wider. I do not know what the owners and the editor of the Sun will think of a proposal which could limit their right of comment and speech. I do not know whether Mr Murdoch has been to see the Prime Minister, to whom he has open access, to warn him of the problems which could arise from the European arrest warrant.
Perhaps I may help the noble Lord. Following our debate on 19th November, I understand that representatives of the Sun approached Downing Street. They were assured that anything they did would not be caught by these provisions. It is partly for that reason that I have brought the matter urgently before the Committee. It is clear that if the editor and proprietor of the Sun continue to write the kind of articles they have been known to write on occasion in the past and publish it in Germany, they could be caught under the general provisions of the decision. However, if they were to be accused of xenophobia, they would be caught under the second paragraph for publishing the newspaper in this country.
I am obliged to the noble Lord, Lord Pearson, for that information. He appears to suggest that the Prime Minister is able to give assurances to the owner of the Sun and other newspapers and periodicals that he is unable to give to Parliament—or at least not yet. Whether we shall receive such assurances this afternoon is another matter. It is very interesting to learn that at least Mr Murdoch has been concerned about the Sun. Mr Murdoch also owns The Times which is sometimes fairly forthright. Perhaps it will no longer be possible to call that newspaper XThe Thunderer" when this legislation is passed.
I should like to raise one other very important point. When a person in this country is arrested for an offence that is not particularly serious but could attract a gaol sentence of up to one or two years there is a presumption of bail. That is not necessarily the case in all other countries. Therefore, a person might be arrested here under a European arrest warrant. I understand that the arrest would be made by police officers from another country who would certainly be accompanied by our own police officers. The individual could be extradited and taken to another country in the EU. If there was no presumption of bail in that country he could be incarcerated for weeks or months before being tried for the offence. We are considering a very serious situation. The people of this country have not caught up with what can happen to them under this legislation. I hope that the media understand what is going on and will give the people a wake-up call. I believe that if people are to be taken abroad and incarcerated for weeks on end without bail the Government will face very serious trouble—perhaps even rioting in the streets.
Is the Minister able to provide any reassurance that at the meeting on 6th December irrevocable decisions will not be taken, which will be the subject of secondary, not primary, legislation, on the proposal of the EU to turn Europol into an intelligence-gathering and co-ordinating agency? I have asked several times but still have not received an answer—which I was promised by the Minister Mr Ainsworth nearly three weeks ago—whether the proposal that an organisation should handle extremely delicate intelligence, which at present it is not in any way fitted to use, will proceed because it is all part of the fight against terrorism.
There is a very great difference between countries exchanging bilaterally delicate information about terrorism, as no doubt we are doing with many countries at the moment, and placing it in an organisation which is amateur, has a record of leaks and corruption, has set itself up out of the blue and is not accountable to us. It was set up by an EU committee, to which it is solely responsible, to handle terrorist intelligence from all over Europe. As far as concerns intelligence, I do not know how that will affect our relations with the Americans or even our bilateral relations, which are equally important. I still have not been told whether that was done after consultation with the intelligence committee, or whether there was consultation with anyone at all. I should like to be reassured that that will not pass into the equivalent of law by a decision on 6th December as part of the framework decision on terrorism and that it will come back to Parliament to be considered and dealt with by primary legislation. I have raised this question twice, if not three times, on the Floor of the House.
I return briefly to the point raised by the noble Lord, Lord Waddington, which is the essence of what we should be discussing in this Committee. We are dealing with an amendment to one specific clause of the Bill. One has heard some terrifying adumbrations from the noble Lords, Lord Pearson and Lord Stoddart. If it is true that the possibilities which they have outlined may come about because of the provisions of Clauses 110 and 111, it is vitally important that the Bill does not leave this House at least in the form in which it is at present drafted. Is the Minister able to provide clarification and give the Committee a clear assurance that Clause 110 does not cover the issues raised by the noble Lord, Lord Pearson of Rannoch? If that can be said unequivocally the position is different.
I entirely endorse the observations of my noble friend Lord Pearson about the threats posed by the decision in draft form if agreed to without change. In her reply will the Minister explain, in terms, in relation to each of my noble friend's concerns, whether or not the Government are to take a stand on them?
Before the Minister rises to reply—I suspect that the Committee is anxious that she should do so fairly soon—perhaps I may revert to another question put by my noble friend Lord Waddington in the previous debate. The Government are insistent that every part of this Bill derives from the desire to combat terrorism. How does it come about that the powers to implement by order anything which emerges from Brussels in a way with which we are now familiar shall be limited only to those offences which carry a maximum penalty of less than two years' imprisonment? If the Government are concerned to hammer international terrorism, what is the rationale for that?
To deal with the last point raised by the noble and learned Lord, I thought that I had dealt with it when I gave my earlier answer. We shall consider the points that have been raised. If there is anything further to be said about the Xtwo-year" point, the Committee can rest assured that we shall do so.
The noble Lord, Lord Pearson, directs our attention to the European arrest warrant, which I assure the noble Lord, Lord Chalfont, is not covered by Clause 110. I understand the concern.
Did I understand the noble Baroness correctly? Is the Minister saying that the European arrest warrant could not be implemented by Clause 110—in other words, by delegated legislation? I am assured that it could be. The fact that the Government have said that they are minded to use primary legislation is a different matter entirely. Surely, she must concede that Clause 110 is written so widely that, had the Government wished to implement the European arrest warrant by secondary legislation, they could have done so.
I could have saved the noble Lord the point. It could be. However, the Government have made clear—I make it clear again—that it is not their intention to do so. The Government intend to bring forward legislation under an extradition Bill. I believe that my noble friend Lord Rooker has already made that clear; and I make it clear to the Committee now.
But the reason why the Government are, as it were, using a two-pronged attack and producing the arrest warrant in advance, is that they have to reach a decision in Brussels on Thursday and Friday of this week. If they did not have to reach such a decision in a few days' time, they could have brought this proposal in under the provisions of Clause 110, to be considered along with the remainder of the Bill. Had that been the case, I would not have had to table the amendment and raise the issue in such a hurry.
We have already planned to introduce an extradition Bill. It is the Government's view that that Bill would provide the more coherent and sensible way of bringing forward the provision. I should have thought that that would be a point that Members of the Committee would welcome since it will offer, quite rightly, an opportunity to discuss this as a matter of primary legislation.
I cannot let the Minister get away with that. On the evening of 19th November, her colleague on the Front Bench agreed that once the Government have given way on this matter and gone along with it on Thursday and Friday of this week in Brussels, no room for manoeuvre will be left—notwithstanding the forthcoming extradition Bill. It will have been done unless we stop it tonight.
Perhaps I may intervene on a brief point. The noble Baroness is saying that the power will not be used. I liken that to a grandfather giving his grandson a motor car on the understanding that the car will not be used to break the speed limit.
Presumably if the noble Lord were to take away the car key, that might be the case. I am saying to Members of the Committee that we have given an undertaking to bring forward this legislation through the extradition Bill. I cannot add to what has been said by my noble friend Lord Rooker, who I believe has already made this point very clearly to noble Lords.
The European arrest warrant is, as the noble Lord, Lord Pearson of Rannoch, has pointed out, still under discussion. Indeed, I understand that a Select Committee in another place is discussing the matter even as we are discussing it in our Committee. We do not want to take a final view as regards how it will be implemented until those negotiations are complete.
I turn now to the point raised by the noble Baroness, Lady Park, as regards intelligence. I am sorry if the noble Baroness has not received a satisfactory response. I believe that when I have replied to her on rather different matters—that is, with regard to intelligence matters in a European context; and it is in that context that the noble Baroness has voiced her concerns—I have assured her both on the military side—which is not the point exercising the noble Baroness here, although the same argument holds good—that we shall not part with any intelligence gathered from United Kingdom sources unless we are satisfied that proper protection is provided for such intelligence.
I understand that the noble Baroness has had her doubts on this point. When she raised them on the last occasion that this discussion was held—I hope that noble Lords will forgive me for digressing, but that was in a different context; that is, with regard to the European Communities (Amendment) Bill currently under consideration in the House—I invited the noble Baroness to put before me any concerns she may have had. She had indicated that she could give examples of her concerns, in particular with regard to the way in which intelligence matters were dealt with. I can give her an assurance that we would not part with intelligence unless we were absolutely certain that it would be treated properly. The noble Baroness knows the seriousness with which Her Majesty's Government treat such matters. To that end, I am happy to repeat that assurance now.
If the noble Baroness would like to discuss these matters in more detail with me, I shall be happy to meet her. I give way.
Perhaps I may clarify a point. The noble Baroness has generously suggested that we meet for discussions. However, she is referring to a different issue regarding the mechanisms covering the control and destruction of chemical weapons. The issue I am seeking to raise tonight is that of the question whether, on Thursday and Friday, we shall be irrevocably committed to allowing Europol, which it was originally intended should be set up to deal with crime, to establish a terrorism centre, using and operating intelligence. That, I repeat, is a completely different issue and one that I raised some three weeks ago with the Minister, Mr Ainsworth. It is to that request that I have not received an answer.
When I have asked the noble Baroness a direct question, she has in every respect responded with a full answer. I merely point out that I am still anxious to know what consultations took place with whom before this was agreed in principle in Brussels, and whether it will be confirmed on Thursday and Friday.
I am sorry to say that I cannot answer the question put by the noble Baroness in the terms she has posed it. It is a straightforward and clear-cut question and I do not know the answer. I shall do my best to secure the information for the noble Baroness as quickly as possible. I recognise the urgency of the point that she has made.
I am slightly disappointed not to have heard a point of view from the Liberal Democrat Benches. Given their excellent contributions to previous amendments, I cannot believe that they would wish to disagree with the amendment. I repeat that I have moved it only because we do not have time for the European arrest warrant to go through the process that will follow our general deliberations on Clause 110 of the Bill. I regret that it only remains for me to thank all noble Lords who have expressed their support for the amendment and to test the opinion of the Committee.
I apologise again for tabling another manuscript amendment. Amendment No. 126EB is a probing amendment. Clause 110 of the Bill seeks to import Title VI of the Treaty on European Union—sometimes known as Maastricht—the Protocol on the Schengen acquis and Article 24 of the Treaty on European Union into British law, by regulation, subject to the affirmative procedures.
Clause 110(3) states:
Xa reference to a provision of the Treaty on European Union includes a reference to that provision as amended by any provision of—
(a) the Treaty signed at Amsterdam on 2nd October 1997, or
(b) the Treaty signed at Nice on 26th February 2001".
In other words, the wording on the face of the Bill does not appear to require that the Treaty of Nice should be ratified by all the member states. It appears to be enough that we—
I am grateful to the noble Lord, but I hope not. The words in the Bill state that these provisions can be imported in accordance with the treaty Xsigned" at Nice on 26th February. We all know that the Treaty of Amsterdam has been ratified. I have checked this matter with the legal authorities in the House this morning. They think that this is a matter that should be brought to the attention of the Committee in this way. That is why I am doing so.
There could be a very important distinction. If the Irish people do not change their minds, it is possible that the Nice Treaty will not be ratified. In those circumstances, will we still be bound by the provisions of the treaty because we have signed it?
The answer could have far reaching implications. For instance, Article 24 of the Treaty on European Union, which is imported by the clause, stands to be changed from unanimity to majority voting under Nice, but not under Amsterdam. There are several additions to Article 24 which appear to remove the veto from large areas, both under the common foreign and security policy in Title V and police and judicial co-operation in criminal matters under Title VI. Article 24 affects both areas and may go even wider.
It is worth looking briefly at what are the new provisions brought in by Nice to Article 24. Article 24 is to be found in Title V—the common foreign and security policy—and clearly feeds through into Title VI. It is worth placing on record what Article 24 used to say, and what it says now—the differences can easily be found in Volume 2 of the British Management Data Foundation analysis—so that we know exactly what is proposed by the new Article 24.
Article 24.1 states:
XWhen it is necessary to conclude an agreement with one or more States . . . in implementation of this Title [Title V] the Council"— it used to say Xacting unanimously"; those words have now been taken out—
Xmay authorise the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect. Such agreements shall be concluded by the Council"— again, it used to say Xacting unanimously", but those words have been taken out—
Xon a recommendation from the Presidency".
It is true that in Article 24 unanimity is retained when an agreement covers an issue for which unanimity is required for the adoption of Xinternal decisions", whatever they may be. But in paragraph 3 of Article 24 it is perfectly clear that when the agreement,
Xis envisaged in order to implement a joint action or common position, the Council shall act by a qualified majority in accordance with Article 23(2)".
Again, in paragraph 4:
XThe provisions of this article shall also apply to matters falling under Title VI".
That is what brings it within the purview of what we are debating. Those words were there previously; but the new part reads as follows:
XWhen the agreement covers an issue for which a qualified majority is required for the adoption of internal decisions or measures, the Council shall act by a qualified majority"— that is new—
Xin accordance with Article 34(3)".
I do not want to trouble the Committee with any more than that. I suspect that we could have a whole day's debate as to where these sorts of changes to the treaties as introduced at Nice could eventually lead us. Indeed, in relation to the next amendment we shall touch briefly on whether they might give rise to tax raising powers for the Community. In the meantime, I should be grateful for the Government's reply as to whether what we have signed at Nice will be binding even if the treaty is not eventually ratified, and what effect the new Article 24 may have on the whole ambit of what we are discussing. I beg to move.
As I understand it, the noble Lord has tabled the amendment in order to prevent the power being used to implement any measures agreed as a result of changes arising from the Treaty of Nice, before that treaty has been ratified.
I agree with the noble Lord, Lord Goodhart. The amendment is redundant as the subsection of the clause that relates to Nice will not come into force until the Treaty of Nice has been ratified. That means that it must be ratified by all member states, including Ireland. We have gone over this matter a number of times in relation to the Nice treaty. I have been able to assure the noble Lord that, unless and until all member states ratify that treaty, it will not come into force. So none of the areas where the Nice treaty seeks to move from unanimous voting to qualified majority voting will be enacted until the Nice Bill is ratified. I should point out that we still have to finish our parliamentary processes in terms of consideration of the Nice treaty. We have finished the Committee stage, but we have still to debate the Bill on Report and at Third Reading. I assure the noble Lord that what the noble Lord, Lord Goodhart, said—namely, that the amendment is surplus to requirements for the purpose that he seeks—is the right judgment. It is not necessary.
I am grateful to the Minister. As I said, I should not have troubled the Committee unless I had received legal advice to the effect that what is actually said on the treaty might be what it means. If it is not, and if ratification is necessary before the new Article 24 comes into being, I am relieved. If that happens, it will still leave us with the enormous extension of qualified majority voting that is inherent in new Article 24.
Before the noble Lord withdraws his amendment, I believe that this is a matter of drafting. But he is right: the strict meaning of the subsection is:
XIn subsection (2) a reference to a provision of the Treaty on European Union includes a reference to that provision as amended by any provision of . . . the Treaty signed at Nice".
The treaty may not be ratified, but it has been signed. I have looked, therefore, for a commencement clause and to see whether there was anything to give force to the Minister's statement—and the supporting statement of the noble Lord, Lord Goodhart—that this provision would not come into effect until the ratification of the treaty. It may be there in the Bill, but I could not find it. Therefore, in logic—the noble Lord, Lord Goodhart, sadly shakes his head. He is a lawyer and these things run in his blood; whereas, for me, they have to be dug out of the vegetable patch, which is a very painful process. What the Bill says is what my noble friend said that it says. No one can contradict that, unless there is anything else in the Bill that says it means something else.
I come as a complete outsider to this particular aspect of the Bill, and merely as a somewhat experienced interpreter of statutes. What the Bill says is that subsection (2), which defines Xthe third pillar", includes a reference to the Treaty on European Union,
Xas amended by . . . the Treaty signed at Amsterdam . . . [and] . . . the Treaty signed at Nice".
If the treaty that has only just been signed at Nice has no power to amend—I give way to the noble Lord.
I am not quite sure where that leaves us, but I am absolutely sure that I should withdraw the amendment. I am grateful for the Committee's patience. When I have read the contribution of the noble and learned Lord, I have no doubt that I shall be satisfied as well. I beg leave to withdraw the amendment.
This is another very brief probing amendment. If we were to remove paragraph (a) from subsection (5), as the amendment suggests, it would appear to have the effect of allowing the imposition or increase of taxation under subsection (1) of Clause 110. I am sure that no Members of the Committee would want to pass tax powers to the European Union in that way. But my question to the Minister is: why is Clause 110(5)(a) on the face of the Bill at all, unless without it the power to tax might have been created by Clause 110?
I think it unlikely that we are dealing merely with some superfluous drafting inserted by the Treasury to irritate the Foreign Office, or vice versa. In speaking to the previous amendment I referred to the possible far-reaching effect of importing Article 24 of the TEU as amended at Nice into British law by regulation. I have no doubt that importing the rest of Title V, Title VI and the Schengen acquis into the Bill also have very far-reaching effects, but they are difficult to understand in the huge thicket of bureaucratic language and obfuscation with which we are always faced in these treaties.
My question to the Minister is simple. Will she explain clearly how the possibility arises that in the absence of Clause 110(5)(a) these tax powers might arise? Will she please take us through the thicket—if not now, perhaps in correspondence and before we come to the next stage of the Bill—through the intertwining clauses, of the treaty and explain to us how that might be? I beg to move.
My answer to the noble Lord is alarmingly simple. It is to make it absolutely clear that there are no tax-raising powers in the clause. The noble Lord says that he wanted to be led through the thicket. Knowing the noble Lord's robustly and clearly expressed views on all things to do with European institutions—although, as the noble Lord makes clear to us on a number of occasions, not to do with European countries—when I saw that the noble Lord proposed to delete the power to prevent the imposing or increasing of taxation I was very surprised indeed.
I assure the noble Lord that there is no nefarious or hidden purpose. Clause 110(5)(a) follows the position on Section 2(2) of the 1972 Act. I am assured that there is a precedent for such clarity. It is for the purposes of clarity. If the noble Lord had not seen the provision written clearly in the Bill, I am sure he would have told us that it should be there. I assure him that the position is entirely in line with what I believe to be his position on the Bill.
I am grateful to hear that this is a piece of unusual superfluous drafting. I repeat that I know of nothing in Title V, Title VI or the Schengen acquis which might give rise to a tax-raising power. I still remain very suspicious of the matter especially under Article 24 of the Treaty on European Union. But time will tell and for this evening I beg leave to withdraw the amendment.
Amendments Nos. 126F and 126G are necessary to clarify that for an offence to be committed under this clause the use of a noxious substance must directly cause serious violence to a person or serious damage to property. This is unclear from the Bill as drafted. Amendment No. 126H clarifies that in order for a threat to use noxious substances to be an offence under these new provisions, it must be shown that if the threat were carried out it would constitute an offence under Clause 112(1).
The fear induced by a threat that a noxious substance is likely to be used to cause harm is just as great as that induced by a threat that such a substance will be used for those purposes. Amendment No. 126J acknowledges this by lowering the threshold for the offence of threatening to use a noxious substance to cause harm and intimidate. This also brings the offence into line with the hoaxing offences in Clause 113.
Amendment No. 126K corrects a drafting error. Amendments Nos. 126L, 126M and 126N are designed to clarify the scope of the new hoaxing offence set out in Clause 113. In order for an offence to have been committed under these provisions the hoaxer's act must be in the UK. However, the effect of the hoax may be felt anywhere in the world. It is important to clarify this point. While we are convinced of the necessity of this offence, we do not consider it appropriate to make it extra-territorial.
Amendment No. 126P brings into line the threshold of the offence of communicating false information about noxious substances with those of placing or sending hoaxes. This is important to ensure consistency. I hope that the amendments will find favour with the Committee. I beg to move.
moved Amendments Nos. 126G to 126K:
Page 68, line 22, leave out Xinvolves" and insert Xcauses"
Page 68, line 31, leave out Xfalling within" and insert Xwhich constitutes an offence under"
Page 68, line 34, leave out Xwill" and insert Xis likely to"
Page 68, line 44, after XKingdom," insert Xof"
On Question, amendments agreed to.
Clause 112, as amended, agreed to.
Clause 113 [Hoaxes involving noxious substances or things]:
moved Amendments Nos. 126L to 126P:
Page 69, line 3, leave out Xwhatever"
Page 69, line 6, leave out Xany person" and insert Xa person anywhere in the world"
Page 69, line 10, leave out Xany person" and insert Xa person anywhere in the world"
Page 69, line 11, leave out from Xthing" to Xand" in line 12 and insert Xis likely to be present (whether at the time the information is communicated or later) in any place"
On Question, amendments agreed to.
Clause 113, as amended, agreed to.
Clauses 114 and 115 agreed to.
Clause 116 [Information about acts of terrorism]:
[Amendments Nos. 126Q and 126R not moved.]
The clause creates a criminal offence for failure to report suspicions or knowledge that would assist in investigations into terrorist activity. There is a defence of reasonable excuse.
The clause puts a positive obligation on any person to assist investigations. With a few narrow exceptions, there is, at present, no obligation to volunteer information that would assist in an investigation into criminal proceedings. Compulsion occurs negatively when there is contempt of court for failing to answer when summoned by the court to give evidence. In some areas there is an immense reluctance to volunteer information, sometimes from fear of retaliation but, commonly, from a wish not to get involved.
The media have recently reported witnesses in a murder trial who admitted to hearing screams and ignoring them. There was general frustration at the lack of public assistance in the investigations into the murder of Damilola Taylor. This situation can be contrasted with France which has a criminal offence of failing to assist a person in danger. The provision in the clause is a significant development in our jurisdiction which, broadly speaking, is to be welcomed.
However, some clarification is needed. What will constitute reasonable excuse? Will the protections against self-incrimination apply? How will vulnerable persons or frightened witnesses who claim, but cannot evidence credible reason for, fear of retaliation or intimidation be dealt with? Will the burden be on the defendant to prove that he did have a reasonable excuse or, if he raises the defence, will it be for the prosecution to disprove it? I beg to move.
Amendment No. 128 is grouped with this amendment and raises a short point. It is a basic principle of criminal trials that the burden of proof rests on the prosecution; and the presumption of innocence is a basic rule not only of the European Convention on Human Rights but, going back much further in time, of the common law. That does not mean that the prosecution has to disprove any possible offence before it can obtain a conviction.
The courts have developed the principle of what is known as the evidentiary burden of proof, which means that when legislation provides for a specific defence it is not inconsistent that the defendant may be required to provide evidence that supports that particular claimed defence. When such evidence is produced, showing that there are grounds for believing that there may be a reasonable excuse, for example, the burden is shifted back to the prosecution to disprove the alleged facts on which that defence is based.
We had a lengthy discussion on that during the passage of the Terrorism Act 2000. The Government accepted the principle that, when a specific defence was created under that Act, the burden resting on the defendant should be the evidentiary test.
Section 118(5) of the Terrorism Act provides that most special defences under the Act are subject to the evidentiary rather than the absolute burden. The purpose of the amendment is to ensure that the special defence under the new Section 38B(4) to be inserted into the Terrorism Act is subject to the evidentiary burden of proof.
As the noble Lord, Lord Kingsland, has said, Section 38B makes a failure to disclose information about terrorism a criminal offence. Subsection (4) of that section provides a defence of having a reasonable excuse for not disclosing that information. I suggest that that special defence should be subject to the evidentiary rather than the absolute burden, so that if the defendant claims an excuse and gives evidence of facts that, if true, would amount to a reasonable excuse, it is for the prosecution to disprove that, not for the defendant to prove it. My amendment would achieve that.
There is a curiosity about the existing Section 118(5) of the Terrorism Act. It does not apply to the specific defence of reasonable excuse under Section 39(5)(b) of that Act, but it applies to the same defence under Section 58(3). The general principle should apply that the specific defence under new Section 38B(4) should require the defendant to satisfy only the evidentiary burden and thereafter the burden of proof should go back to the prosecution.
If somebody knows or has a suspicion that another person is going to plant a bomb and try to blow up a lot of people, it is reasonable for them to be prosecuted afterwards if they said or did nothing about it. However, we should consider the Northern Ireland situation, where many members of the Roman Catholic and nationalist community often refuse to give evidence or help to the Royal Ulster Constabulary. I hope that we are not creating an offence that would be observed at that level. Would an excuse be, XI am terribly sorry, but I know that if I had come plodding along to the police force I would have had my kneecaps blown off, or possibly been assassinated, and I was too frightened to give evidence"? The idea has slightly wider ramifications, even though in principle it is an extremely good one.
Subsection (4) imposes an objective test to decide whether there is a defence. There are infrequent occasions in our criminal law when a subjective test is available. The Committee will have to consider carefully whether my noble friend's suggestion that a subjective test should apply in these circumstances is the best way of dealing with the matter. I am trying to keep an open mind on the subject at the moment, but it is important to point out that there is a difference between an objective test and a subjective test in deciding on liability.
I am minded to take the point made by the noble Lord, Lord Renton, about keeping an open mind on these issues. It deserves constant repetition. We will listen to what is said in Committee.
Clause 116 makes it an offence to fail to disclose information about terrorism and terrorists. Such information would include anything that a person knows or believes might help prevent someone else carrying out an act of terrorism or would help bring terrorists to justice. The offence will cover all forms of terrorism and will apply to a person even if he was outside the United Kingdom at the time that he became aware of the information.
The conditions and threat from terrorism have changed. The view of the police, which we share, is that the inclusion of such an offence can play an important role in countering terrorism and bringing terrorists to justice by reminding the public of their obligation to help protect their fellow citizens. It will be a defence for a person to prove that he had reasonable excuse for not disclosing the information. I am not in court, but if a person could prove the circumstances that the noble Earl, Lord Onslow, described, that would have to be taken on board.
However, Amendment No. 127 would widen the defence so far that it would be extremely difficult for the police to consider prosecuting successfully. We are aware of the difficulty of proving whether someone believes something. We should avoid trying to get windows into people's minds, because it is very difficult to do. It will be a defence for a person to prove that he had a reasonable excuse for not disclosing the information.
Amendment No. 128 would make it exceptionally difficult to prosecute in such cases. It is difficult to prove whether a person had knowledge of an offence. We believe that the amendment would lead to a reluctance on the part of the prosecuting authorities to proceed in such cases. It would also undermine the intention of the policy to keep the public mind on the duty to protect their fellow citizens. There is an important public policy objective in ensuring that the duty covers all forms of terrorism and reminds people of their obligations to their neighbours and fellow citizens. Some people will be under acute threat not to give information to the authorities for all kinds of reasons. It is not the easiest thing in the world to contemplate ever doing. We have to look at each case on its merits.
We are keeping the debates and amendments under constant attention and review because of the shortness of time between stages to see whether any changes should be made. I am not flagging up any particular change in this case, but I want to make it clear to the Committee that we are listening to what is said. I hope that my comments are enough to encourage noble Lords not to press their amendments. I am not promising to come back with anything on Report, but we are not closing the book when the debate finishes; we are looking at amendments to see whether they have merit that may not have been raised or thought of when they were moved.
Does the Minister accept that if the burden of proving reasonable excuse is left as an absolute burden on the defendant, there is a serious risk that it would be inconsistent with the presumption of evidence and therefore a breach of Article 6 of the European Convention on Human Rights, as applied by the Human Rights Act 1998?
It is because of such questions that I am not closing down the debate. It will be considered.
As an ordinary listener to the discussion, could I ask the Minister this question? If a person says, XI do not have this information. I do not believe that I have any information to help you", and he is prosecuted, does saying that he does not have the information provide an excuse under this clause? He may in fact not have any information.
The beginning of what will be the new Section 38B says,
XThis section applies where a person has information".
If the person does not have the information, then the section will not apply.
During the passage of the Terrorism Bill, which then became the Terrorism Act 2000, the Government gave assurances to Parliament that they saw the reasonable excuse defence as an important safeguard for journalists concerned about the protection of sources. We would welcome the Government's repetition of such assurances in respect of all relevant disclosure offences.
I entirely understand why the Minister would like to reflect on that and on the other matters to which he referred in his reply. It would, therefore, be appropriate for me to withdraw this amendment, in the hope that he will come back with something more concrete on Report. I beg leave to withdraw the amendment.
moved Amendment No. 129:
After Clause 119, insert the following new clause—
(1) In section 59(4) of the Terrorism Act 2000 (c. 11) (inciting terrorism overseas), after Xperson" insert Xwho incites or the person".
(2) In section 62(2) of the Terrorism Act 2000 (c. 11) (terrorist bombing: jurisdiction) after paragraph (c) insert—
(e) an offence under section 18 of the Offences Against the Person Act 1861 (c. 100) (wounding with intent);
(f) an offence under section 23 or 24 of that Act (poison);
(g) an offence under section 28 or 29 of that Act (explosions); and
(h) an offence under section 1(2) of the Criminal Damage Act 1971 (c. 48) (endangering life by damaging property).""
The purpose of this amendment is to extend the jurisdiction of the United Kingdom courts over terrorist offences so as to make them, at least so far as the law applicable in this country is concerned, crimes over which there is universal jurisdiction. It would mean that the United Kingdom courts could try someone charged with terrorist offences wherever those offences were committed, whoever committed them, and whoever was the victim.
For centuries, piracy has been a crime of universal jurisdiction under international law, applied by the domestic courts of the United Kingdom, though that law has now been codified in the UN Convention on the Law of the Sea of 1982.
A number of other crimes are now subject to universal jurisdiction under various conventions. For example, the destruction of aircraft is a universal crime under the Montreal Convention of 1979, which has been implemented in the United Kingdom law by the Aviation Security Act 1982. It would apply to what happened on 11th September, so that anyone who had assisted in that crime would be the subject of universal jurisdiction.
War crimes which are crimes under international law are triable by the courts of any state. Hostage-taking for terrorist purposes has been made a crime of universal jurisdiction in the United Kingdom by the Taking of Hostages Act 1982, which implements a convention entered into in 1979.
Torture was made a crime of universal jurisdiction under the 1985 convention, which was implemented by the Criminal Justice Act 1988. It will be remembered that that particular convention and its implementation played a crucial part in the Pinochet trial.
Section 62(2) of the Terrorism Act 2000 makes terrorist offences of bombing, or the use of biological or chemical weapons, offences of universal jurisdiction. But the United Kingdom courts do not have a general universal jurisdiction over terrorist offences. I suggest that the law should make serious terrorist offences crimes of universal jurisdiction. Many of them now are, but not all of them.
I agree that at present most of the cases of universal jurisdiction arise under international conventions. As yet, there is no general convention on terrorism. That may take years to achieve. I suggest that this country should not wait but should take the lead and, for this purpose, should make terrorism the equivalent of piracy.
The purpose of this amendment is that, first, it makes incitement to terrorism a crime of universal jurisdiction by making it apply to cases where the person inciting the crime is outside the United Kingdom and not just the person inside it, as now. Secondly, it extends the list of offences of universal jurisdiction under Section 62(2) of the Terrorism Act to cover not only those crimes which are now covered but other offences listed under Section 59(2) of that Act—for example, murder.
I believe that the creation of universal jurisdiction would make it easier to prosecute cases which might otherwise lead to detention without trial under Part 4 of the present Bill.
I accept that in many cases of offences committed abroad there will be evidential problems which may make it impossible to have a prosecution in the United Kingdom. Nevertheless, I believe that there will be some cases in which a prosecution in this country would be possible: cases where the defendant cannot be extradited because, if he is extradited, he would be likely to suffer death, torture or inhuman treatment.
I therefore believe that serious terrorist offences should be treated as the modern equivalent of piracy and—translating the old saying from Latin—should be treated as offences against the human race, and that the United Kingdom courts should accept universal jurisdiction.
Can the noble Lord, Lord Goodhart, help me on this? If I am right, if the Royal Navy caught somebody acting as a pirate he was hanged, whether or not he was a British subject. Is the noble Lord suggesting that if an act of terrorism is carried out by, say, a Kashmiri terrorist—which is what the Indians would call him but what the Kashmiris would call a freedom fighter—he should be subject to trial by British courts if he happens to come on a Cook's tour to the Lake District, or comes within our jurisdiction?
I ask that question solely as a seeker after knowledge and for no other reason.
In the case of the scenario suggested it is extremely unlikely that any prosecution would be launched. There may be many cases, however, where somebody guilty of serious terrorist offences and present in this country—not necessarily for the purposes of seeking asylum—could be subjected to arrest. Extradition would be the primary remedy. However, there are many cases where there may be no effective court system in the country from which they come, for instance in Somalia, or, alternatively, where a trial cannot be held because of problems under Article 3 of the European convention. In those circumstances it is desirable that the English courts should have a reserve power.
May I get this absolutely clear? The noble Lord is therefore saying that someone who is accused by the Indians of terrorism in Kashmir could be tried in the English courts?
In principle I am sympathetic to this amendment, even though I believe that some much more eminent legal authorities argue against it on the grounds of the difficulties of producing evidence. I recall very clearly that that was said precisely when it was suggested that British courts should have jurisdiction over paedophile offences committed by British subjects in overseas countries. Nevertheless, that measure was eventually enacted after much argument. I understand that there has already been one successful prosecution. Therefore, I am doubtful whether the evidential argument is sufficient to dispose of the principle, at least, behind the amendment.
I noted that the noble Lord, Lord Goodhart, did not refer to the other amendments in the group. I shall make passing reference to them as the thrust of the package of amendments is exactly the same. The comments of the noble Earl, Lord Onslow, and the noble Lord, Lord Hylton, show how incredibly complicated the proposal is from a practical point of view. Although we in Britain are pathfinders in many areas, I ask the Committee to think twice about the proposal.
The amendment addresses real concerns. However, there are limits to the ability of our courts and our police to take on cases which occur overseas. Amendment No. 129 to Section 59 of the Terrorism Act would give our courts jurisdiction in a case where, for example, a person in Afghanistan incites a person in the Middle East to commit an act of terrorism against the United States. It is hard to see any justification for the involvement of the UK's legal system in such a case. We should not assert criminal jurisdiction as an act of condemnation but only where it is justifiable in principle and in practice. In our view the existing Section 59 goes as far as we reasonably can: it allows prosecution of cases where the person who does the inciting is in the UK, even if he is inciting someone abroad to commit a terrorist act abroad.
Similar considerations apply as regards the changes sought by Amendment No. 129 to Section 62(2) of the Terrorism Act. That seeks to add certain offences to the list of terrorist offences for which the UK has universal jurisdiction. We do not take universal jurisdiction except in the most exceptional cases. The existing list of offences is derived from the Terrorism Conventions on Bombing and Finance. We do not think that it is justifiable to assume universal jurisdiction for these additional offences, which are not so clearly terrorist offences, as those on the existing list.
Before anyone interjects, I should say I am aware that the mere use of those words will be held against me—as has already been the case—when we try to make the connection between what are in common parlance non-terrorist offences as opposed to terrorist offences. As I read out the words, I thought, XWow!", so I may as well get that matter out of the way now.
I refer to the novel point which I believe the noble Lord, Lord Goodhart, mentioned; namely, that in legislating the matter we are discussing we shall probably lock up fewer people under the terms of Part 4. That is a novel way to get round the difficulties of Part 4 but we think that it goes a step too far. Under Part 4 our prime objective is to prosecute the people concerned. Failing that, our second objective is to remove them from the country. Our two objectives are to prosecute or to remove the people concerned. Only in the event of our not being able to remove them shall we seek detention. I hope that I have given enough of a flavour of how complicated and difficult the innovative proposal would be to persuade the Committee not to pursue the matter.
I am grateful to the Minister for those comments. The argument would have had more force if we had not already accepted jurisdiction over a considerable part of the terrorist spectrum. To take the example of the noble Earl, Lord Onslow, of a Kashmiri terrorist, the United Kingdom courts could now take jurisdiction to try a terrorist there who had allegedly blown up a vehicle containing, let us say, members of the Indian Army by placing a bomb or a large mine under the road on which they were driving. However, the English courts could not accept jurisdiction if the Kashmiri militants had shot exactly the same people rather than blowing them up. That shows that there is now an illogical patchwork of cases. However, I entirely accept that this is a somewhat novel concept that goes outside the scope of the Bill. Having raised it, it is not my intention to bring it back again and I beg leave to withdraw the amendment.
moved Amendment No. 131A:
After Clause 120, insert the following new clause—
XDURATION OF THIS PART
(1) Sections 110, 111 and 116 shall cease to have effect at the end of the period of 2 years beginning with the day on which this Act is passed.
(2) Subject to subsection (1), this Part (except for sections 115 and 120) shall cease to have effect at the end of the period of 5 years beginning with the day on which this Act is passed."
This is a sunset clause applying to Part 13 specifically. It is grouped with other sunset clauses standing in the names of my noble friends and myself that apply separately to Parts 6, 7, 8, 9, 10 and 11 of the Bill. It is also grouped with single portmanteau sunset clauses which appear in Amendment No. 185A in the name of the noble Viscount, Lord Bledisloe, and Amendment No. 185B in the name of the Conservative Front Bench.
We debated a sunset clause on Part 4 on Thursday so I can be brief on this amendment. There is a significant difference between Part 4 and the other parts as the Government have accepted that Part 4 needs a sunset clause, although, in their view, the sun ought to set much later than in the amendments which we propose. We say, however, that the whole of the Bill except Part 12 requires reconsideration by new primary legislation. Part 4 has, of course, already been debated but there are many other parts which are seriously controversial and, we believe, should be reviewed within two years. I refer to Parts 3, 5, 10, 11 and 13. Other parts are less controversial and can be left for five years. But in view of the fact that the Bill is being rushed through without proper opportunity for consultation or debate, the remaining parts should, we believe, be reviewed even if they are not obviously controversial.
Amendment No. 185B mirrors almost exactly an amendment tabled in the other place by my honourable friends and by the Conservatives. We should be happy to support that amendment as an alternative to a series of separate amendments dealing with the various parts of the Bill separately. I beg to move.
As the noble Lord, Lord Goodhart, said, we are now faced with a series of sunset clauses. The two Opposition Front Benches have devised separate sunset periods for each section of the Bill. With my far more modest resources, I merely propose a single sunset date for the whole Bill. I have no preference between the two methods. I am simply strongly of the belief that some form of sunsetting is necessary.
During the debate on the subject of the arrest warrant, I ventured to suggest that almost all knee-jerk legislation turns out to have unforeseen and undesirable consequences. For that reason, such legislation should be passed only in cases where it is really needed. It is accepted that this is such a case—at least, much of the Bill is really needed. However, in my view it is absolutely vital that, at some reasonably early stage, the provisions of the Bill are reconsidered properly by Parliament in order to see how the legislation has worked, or, more probably, not worked. We should revisit the legislation and enact at leisure what we are currently enacting at too fast a pace. I shall support any of the sunset clauses that anyone is minded to move. I do not care how they are done provided that we have them.
I was having a quick cup of tea with the noble Lord, Lord Desai, and it appears that the most perfect example of rushed legislation was the Indian Independence Act, agreed in June 1947. It involved the partition of the Punjab with 2 million dead. Indian independence took place in August 1947. I accept that this legislation will not have quite the same consequences. Equally, I accept that that was a tiny piece of showing off of some arcane information which I had just picked up and wanted to share with the Committee.
I also suggest that the Government want a sunset clause which is not quite in the land of the midnight sun but which nearly is. I should like to ensure that it is a December sunset clause and not a June in Lapland sunset clause. Therefore, from my point of view, the quicker such a clause is introduced, the better.
Because of the way the amendments are grouped, I now find myself in the slightly embarrassing position of putting before the House an amendment that places me in exactly the same situation as I accused the Government of being in with regard to the Bill. We are considering this overriding sunset clause which we drafted and which is similar, as the noble Lord, Lord Goodhart, said, to one that was tabled in another place. We seek to insert this new clause at the end of the Bill. That appears to be the proper place to consider this subject seriously—that is, when we have finished our consideration of the Bill and are fully aware of what we, as a House, are prepared to accept.
Therefore, I do not intend to go into the detail of our sunset clause at this stage. That will probably come as a great relief to the Committee. But I believe that we are all agreed that it is necessary to sunset the Bill. That principle is already accepted by the Home Secretary, although he has agreed to it only in relation to parts of the Bill. I believe that the sunset clause is rather too long for most of us to tolerate in relation to some parts of the Bill. That said, this amendment is before us today, and I consider it to be absolutely appropriate that we indicate our complete support for the principle which the noble Lord, Lord Goodhart, has put to the Committee. Having done that, I can now sit down happily and easily.
I hope that it will be acceptable if I address the general point of sunsetting rather than each of its details. I shall deal with the general principle as opposed to the specifics of the sunset clause. Such a clause would have the effect of time-limiting virtually all the provisions of the Bill and would do so in a manner that would commit Home Secretaries to return to Parliament again and again with new legislation. That would occur even in circumstances where it was clearly necessary for the provisions of the Bill to continue.
Part 12 of the Bill, which deals with bribery and corruption, escapes that fate, although not in the noble Viscount's amendment. Clearly, noble Lords believe that some offences have a long-term application. Therefore, why does the proposed measure not apply also to Part 9, which concerns aviation security? Do we not want to retain power to remove unauthorised intruders from our airfields? Some areas are distant from the main thrust but they are all related. Some contain loopholes which, through slipshod legislation in Parliament's overall processes, have been allowed to be absent from the statute book.
Do we not want to ensure that our civil nuclear sites, for example, are secure and safe from terrorist attack in the year 2007? We cannot suggest that aiding and abetting people to make nuclear weapons will not be a threat to our security in three or five years' time. Are noble Lords saying that they are happy for those who work with the ebola virus to be checked between now and 2007 but not after that date? What will change? We shall need to control how pathogens and toxins are stored and check those who work with such substances.
Having given some examples—I do not want to be too belligerent—I fully admit that, as we prepared the Bill, we trawled Whitehall. There is no secret about that. We trawled the departments because the terrorist threat has changed since September 11th. There is no question that the terrorists have rewritten the rule book. We conducted a stocktake throughout the whole of Whitehall, asking ourselves where the gaps were in each department. We asked departments to identify any gaps, bearing in mind that our position is different following the events of September 11th. We found some of our laws wanting and admitted that some gaps had been present for a long time. We are seeking to close the loopholes and fill the gaps. Frankly, there is no good cause for giving future Home Secretaries extra work when the matter can be dealt with now.
Parts of the Bill bring in powers where the balance between the liberties of the individual and the security of the majority is fine. All the evidence shows that the general public want action. They certainly do not want more difficulties. They want to know that we have taken all possible and reasonable—some people outside would even be happy with unreasonable—precautions. We must take action, and we have sought knowingly to close the loopholes and fill the gaps. We do not want to say that such measures will not be needed in three or five years' time. I do not put forward my argument from the point of view that the legislation is processing in a normal way through the House; it is not.
Does the Minister not recognise that there is a different point to this argument? Many of us accept that many of the aims of the Bill are well intentioned and desirable. Our objection or concern is that, because they are being legislated for at such a frenetic pace, there is no time for people to identify, discover and remedy the unforeseen and undesirable consequences. We are not saying that in time—whatever the sunset period is—similar provisions may not be desirable. We are saying that the topic will need to be revisited in order to ensure that we get the matter right then, having probably got it, at least, partially, wrong because of our current haste. The objects are not wrong but the methods of carrying them out will probably prove to be less than perfect.
Perhaps I may say that, as the noble Viscount rose to his feet, that was the very point that I was making. I had moved away from the particular and was saying that we were conscious that the Bill was not going through the House in the normal manner. I was uttering those very words as the noble Viscount rose. I take the point that is being made; it is not being ignored.
I leave aside the sunset provision that we have already put into the Bill and the review of the asylum and immigration powers that will take place after 15 months. At the beginning of our debate last Thursday, I mentioned, as recorded at col. 459 of Hansard, possible ways in which we could float ideas about how the whole Bill—I repeat, the whole Bill, with no exceptions—might, after a reasonable period, be reconsidered by this House and the other place, taking into account the results of that review. I know that it is not a sunset, but it starts to make the point in a parliamentary way on a matter that has been legitimately raised, which is the speed of the passage of the Bill through both Houses, and this House in particular. Some people might say that eight days is not unreasonable, but that it is unreasonable to have no gap between the stages. I accept that. One day does not count as it leaves no time for mature consideration of the issues that have been raised. I accept that we are working at break-neck speed. That is why I raised the issue last Thursday. I am happy to make proposals to test the water. There may be wholesale condemnation and Members of the Committee may say that they do not want a review by Privy Counsellors from both Houses and a debate on their report. Your Lordships may prefer sunset clauses and primary legislation in three or five years' time, which I shall be happy to debate as an alternative.
All the parts of this Bill that end up in the Terrorism Act 2000 will be reviewed annually by statutory requirement on the Home Secretary to lay a report on the operation of that Act at least once every 12 months. That review will be conducted by a Member of this Chamber. We are not convinced of the need for sunset clauses on what I would call the bread-and-butter precautionary anti-terrorist measures in this Bill. But we are mindful, because of the speed of the Bill's passage, of the points that have been made to see whether we can find a review mechanism so that this House and the other place can review the operation of the whole Act within a reasonable period. I suggested 15 months as the point at which the detention powers should be reviewed. I could go on to refer to every amendment, but that would not be acceptable to the Committee.
There is a general point at issue. We do not accept the point about sunset clauses but are always looking for alternatives and think that we have a possibility on which we should be interested to hear the views of Members of the Committee.
I was seeking not to prolong the debate earlier, but perhaps I should have explained my amendment a little more. The Minister keeps implying that sunset clauses will require primary legislation when the sun sets on that particular part of the Bill. I should point out to him that our sunset clause provides that the legislation can be rolled forward by order. That follows case precedent for other such legislation.
I am sorry to intervene, but I do not agree with the noble Lord, Lord Dixon-Smith. The matter was dealt with by my honourable friends in the other place. The power to take the matter forward by order would be exercisable only during the period prior to the sunset clause. Once the sunset clause comes into operation, there must be new primary legislation.
I wonder whether I may intervene belatedly. This group of amendments is the most important of all and much detail has been put into each amendment. We have had a reply from the Minister, who is open minded to a limited extent. However, I should like to suggest to the noble Lord, Lord Goodhart, to my noble friends on the Front Bench and to the Minister that this is a matter of such fundamental importance that we should not attempt to reach a decision this evening but that there should be discussions behind the scenes between the Committee and Report stages to try to reach a sensible agreement as to how the Bill should be dealt with in future. Obviously there must be a time limitation on the Bill because so many clauses change our law drastically in ways which, in the normal course of events, we should not have countenanced. I hope that rather than reaching compromise decisions at this stage, the opportunity will be provided for everyone concerned to reach agreement at Report stage, if possible, on the best way of dealing with the matter.
I was extraordinarily cheered by what the noble Lord, Lord Rooker, said. It appears that there is not quite as much disagreement on this issue as on others. The Minister says that we cannot have a sunset clause on everything and that the provisions have to go on a bit longer. But there seems to be an element of God and Abraham bargaining over a Sodom and Gomorrah with the 99 just men, which eventually comes down to five, and then there are none, so the bargain goes out of the window.
There is no difference between the approach of my noble friend and that of the Minister. I should have thought that with a decent amount of haggling, we could almost produce a point of agreement. I do not expect the Minister to say, XYes, I agree", because he is not a Cabinet Minister, but I should have thought it possible for him to say, XI think that there is something in that and I shall see what I can do".
I rise to support the noble Lord, Lord Renton, and to make a constructive suggestion. There should be what one might describe as a Viscount Bledisloe clause. It need not be agreed tonight, but on a future occasion a decision on the specified period could be made. It may be slightly novel to suggest that it could go on until an exception arises. A compromise should be built in, which I hope is not the result of haggling, providing for a review of all these provisions and a report to both Houses. To the extent to which each House accepts the review, or any part of it, the Act will continue in force. If the review were entirely favourable, which is highly improbable, we would be left with only a small number of areas to be dealt with by primary legislation, or perhaps by some special arrangement, which could be written in under the exception. It would be a pity to throw the whole thing out and it would be equally a pity if both Houses did not have an opportunity to consider the matter fully the day after tomorrow—I mean that metaphorically—when we have seen how the measure works in practice.
I am extremely grateful to the noble and learned Lord, Lord Donaldson, because his suggestion may give us a lifeboat in the sense of marrying up what I—I hate to use the word—proposed last Thursday, coupled with the desire for some parliamentary effort or control. I shall take the remarks of the noble Lord to be a positive affirmation that there is a way forward. I shall ask my colleagues—I was going to say elders and betters, which they usually are anyway—to pursue this matter through the usual channels.
I am grateful to all those Members of the Committee who spoke in this short debate. It is not my intention to press the amendment to a vote. There will clearly have to be further discussion of the matter and co-ordination between these Benches and the Conservative Benches over the form of what I hope will be an agreed amendment on Report, when we shall obviously have time to consider the matter.
The Minister has not entirely grasped the amendment's purpose. It is certainly not our view that those parts of the Bill that are accepted in principle—those on pathogens or aviation security—should be scrapped as a result of the review. We envisage that in such cases the principle will be agreed. If the arrangements prove to be working perfectly satisfactorily within, for example, a five-year period, any primary legislation would be very brief indeed.
The problem in those parts of the Bill that are generally accepted is that the detail may give rise to difficulties. Even if the substance is accepted, we may need to look again at the detail. For example, we shall later today come to a number of amendments—on the face of them, they are rather impressive—relating to Part 7. There may be similar cases in which there has not been time to work out which amendments are needed before the Bill is enacted. Even the relatively non-controversial parts should be reviewed. In that regard, the case is even stronger in relation to those parts that are controversial. Unless the Government agree to the amendments, it will plainly be necessary, we believe, to examine the matter again when we have seen how the arrangements operate.
The matter will clearly be considered on Report. I beg leave to withdraw the amendment.
We come to that part of the Bill concerned with XWeapons of Mass Destruction"—nuclear, biological and chemical weapons and other hideous weapons that science is developing. Unanimity of purpose and of principle is probably greatest in relation to these provisions. They will do most to head off another horror such as September 11th, if there are further horrors and tragedies—pray Heaven that there are not. I confess, in moving the amendment and those grouped with it, to some amazement that it is not already the law of the land—or of international law—that the handling and movement of fissile materials is criminal and illegal in all senses. The provisions are clearly needed as part of the search for gaps that went on in Whitehall—that was referred to by the noble Lord, Lord Rooker, as the precursor to the preparation for this Bill.
Amendment No. 132 does not appear in my name on the Marshalled List. Perhaps that is just as well—looking closely at the Bill and the amendment, my conclusion is that the wording in neither will do. The purpose behind the amendment, which my noble friends tabled, was to strengthen the provisions in Clause 44 and to bring about a situation in which the suspect, offender or person involved would have to be absolutely sure that the Xbiological agent or toxin" being handled or transferred was for,
Xprophylactic, protective or other peaceful purposes".
To achieve that, the amendment should have proposed to omit the phrase, Xhas reason to believe" but it should not have proposed to replace that with Xsuspects". The difficulty arises because of the speed with which we have had to table amendments and the double negative in the provision. If the phrase Xhas reason to believe" were left out, it would be possible to demand of the person involved that he knew that the poisonous substances really were for reputable and acceptable purposes, and not for any darker purposes. That is the purpose of Amendment No. 132. However, I make it clear that I think neither the amendment nor the Bill is right. I look forward to the Minister's comments.
Amendment No. 137 would in effect strengthen the Bill's provisions. As it is currently drafted, the Bill appears to suggest that if armed conflict is afoot—as we have seen in recent weeks, we are not even sure about how to define Xarmed conflict", let alone Xwar" in modern conditions—producing nuclear weapons can be proceeded with without fear of prosecution. That is a loose and very grim prospect. During a war or conflict, one of the many terrorist networks that we now know exist around the globe or a rogue state could be involved in such an arrangement, and people on UK soil could be involved. Our view is that it would clearly be right to exempt those working in the legitimate service of our own government—that is why we propose to insert,
Xby, or on behalf of, the Government of the United Kingdom".
However, we do not think that the exemption should go beyond that—it should be confined to the United Kingdom.
I want to discuss two further amendments in this group—my noble friend may discuss the fifth amendment in the group, on which I shall not comment. Amendment No. 141 is a technical legal amendment, which is intended to ensure that documents and information that are Xsubject to legal privilege" cannot be recovered by virtue of a search warrant that is granted under the clause. I understand—others will undoubtedly understand better—that the law is eager to protect and preserve the relationship between a solicitor and his or her client. The Bill should state that a search warrant that is granted under Clause 52 will not extend to the disclosure of information that is subject to legal privilege. Although the amendment appears in this group, it does not follow the group's main theme.
Finally, Amendment No. 142 involves the question of someone who actively connives in the commission of an offence by a company that is involved in the handling and transfer of poisonous weapons of mass destruction, nuclear materials and so on. The Bill implies that anyone who is a director—presumably executive or non-executive—could be swept up in the matter, find himself exposed to criminal charges and suffer a heavy prison sentence. The amendment would in a sense slightly weaken the Bill's proposals by urging that neglect should not be enough to criminalise a company director or other officer. I beg to move.
We on these Benches have some sympathy with Amendment No. 132. It involves a lowering of the standard because the clause will come into operation if someone suspects, rather than believes, that there may be misuse of pathogens. In our view, that lowering of the standard increases the protection of the public without interfering with any significant civil rights or liberties. In those circumstances, we believe that it is a good idea.
I echo the puzzlement expressed by the noble Lord, Lord Dixon-Smith, not for the first time, about the grouping of some of the amendments today. I support all the amendments spoken to by the noble Lord, Lord Howell, but in particular Amendment No. 142, which more logically should have been grouped with Amendment No. 149. I do not believe that people should be sent to prison for two years merely for making an honest mistake.
Like the noble Lord, Lord Howell, I shall deal with these amendments sequentially. I fully accept that the intention of the noble Lord in moving Amendment No. 132 was to strengthen the provisions of the Bill. I recognise that he was trying to be helpful in so doing. However, I believe that the intention has been to reduce the level of knowledge of the use to which a biological agent or toxin will be put before an act becomes an offence. While that may arguably catch more acts within the scope of the offences, Xbelief" is a tighter term which it is more practical to apply in a court of law than the term Xsuspicion".
The noble Lord has told us that he is not happy with either term. However, Xbelief" appears elsewhere in the Bill, notably in Clause 116, which has just been accepted, and it was not challenged. I have to confess to a small amount of perplexity in relation to this matter. I believe that the term Xsuspicion" is used elsewhere in the Bill and I am not entirely sure whether the two terms are interchangeable in the way in which their use is indicated. Perhaps the noble Lord and I should consider the matter.
Amendment No. 137 would limit the armed conflict exemption in Clause 49 to acts done by or on behalf of Her Majesty's Government. Superficially such an amendment may have some attraction, especially if the intention is to prevent someone who is ill-disposed towards this country charged with committing an offence under Clause 48 from claiming that the existence of an armed conflict exempts him or her from application of that clause.
In our view, the amendment would also have the effect of excluding UK citizens from giving what would otherwise be perfectly legitimate assistance to allies that are nuclear weapons states where that assistance was not being given via Her Majesty's Government. We would not want to put obstacles in the way of key allies seeking to fulfil their defence requirements, especially at a time when so much would, by the nature of events, be at stake.
Perhaps I can give a couple of examples of what would trouble us were this amendment to go forward. Under the exception, allied personnel would not be permitted to load, to remove or to maintain allied nuclear weapons stored in the United Kingdom. Specific authorisations from the Secretary of State would be required for those activities. While those actions may be considered to be covered under the status of forces agreement, in our view that would not be legally watertight and, therefore, could not be relied upon. Furthermore, allied nuclear missile submarines would not be permitted, under the exception, to visit a UK naval facility or another port. Specific authorisation would be required. In the light of that explanation I hope that the noble Lord will reconsider the amendment.
The noble Lord did not address Amendment No. 140 tabled by his noble friends. I do not know whether he wants me to address that amendment. It is grouped with the others.
Perhaps the Minister will forgive my confusion over how to deal with this amendment. I want to speak to Amendment No. 140 but as it concerns Clause 53 I was not sure how it fitted into this group. Perhaps it would be helpful to the Committee if I speak to it now. This is a probing amendment. Clause 53 endeavours to give justices of the peace in Scotland powers that I believe should properly be exercised by a sheriff. I do not believe that a requirement for a sheriff to do the job would cause any particular delay. In relation to Amendment No. 145A, I believe that the Minister has accepted that argument in relation to search warrants. That was my reason for tabling this amendment.
I thank the noble Duke for putting forward the argument behind Amendment No. 140. This amendment seeks to change the definition of the relevant authority for the purpose of obtaining a warrant in Scotland. The formulation used in the Bill mirrors that used in the Chemical Weapons Act 1996. The Scottish authorities were consulted over its use in this Bill and they said that they were content with the formulation in the Bill.
The wording in the amendment mirrors that used in the Biological Weapons Act 1974, which pre-dates the Criminal Procedure (Scotland) Act 1995, mentioned in Clause 53(1)(b). I believe that the formulation used in the Bill is a more up-to-date formulation. It is acceptable to the Scottish authorities. I hope that the noble Duke will feel able to accept my assurances on that.
Amendment No. 141 deals with legal privilege. We agree with the noble Lord, Lord Howell of Guildford, that legal privilege should not be affected by these powers. In fact, the Police and Criminal Evidence Act 1984 and the Criminal Justice and Police Act 2001 already provide that constables may not seize items subject to legal privilege and that if any such item is seized it should be returned. However, the noble Lord, Lord Howell, has raised an interesting point. I cannot accept his amendment as drafted, but the Government intend to make it absolutely clear that both constables and other authorised officers under this clause will be constrained by the provisions of the Criminal Justice and Police Act 2001. We intend to do so under the order-making power in Clause 121 (XConsequential and supplementary provision").
In Amendment No. 142 the noble Lord, Lord Howell, sought to allow a defence of neglect of duty on the part of a corporate office holder. This defence is now allowed in other instances where serious offences are involved, including under the Terrorism Act 2000. The language used in the Bill has the equivalent effect for bodies corporate that,
Xknowing or having reason to believe", has in relation to an individual. That formulation is used in connection with the primary offences set out in Clause 48, where your Lordships have not chosen to dispute it. It would be inconsistent for a private individual to be more widely culpable than an individual who happens to be a corporate office holder. Therefore, I hope that the noble Lord will not press the amendment on a defence that would not be available to an individual.
I am grateful to the noble Baroness. It is rather a ragbag of amendments grouped together covering a wide range of issues. The noble Baroness has very kindly covered them all including the amendment spoken to by my noble friend the Duke of Montrose.
As regards Amendment No. 132, I am grateful to the noble Baroness for what she said about the strength or otherwise of the clause and the degree of protection it provides in dealing with potential offenders. I had to read the clause several times in order to understand how we were seeking to express our aim to strengthen matters. I am grateful to the noble Baroness for indicating that she would like to give the amendment further thought. In the light of those remarks I shall withdraw the amendment.
As regards Amendment No. 137, the noble Baroness indicated that there would be some practical problems relating to allies handling nuclear materials on UK soil and all kinds of legislative complications that would ensue. I accept that problems would arise. There must continue to be some worries whether the words Xarmed conflict" are just too loose and whether we could provide some tightening of the wording. However, in the light of what the noble Baroness said, I shall not move that amendment.
My noble friend informs me that he is grateful for the noble Baroness's response on the Scottish issue and for the assurances that have been given. However, he feels that the matter is not yet clear. It may be that we shall wish to return to it at a later stage.
Amendment No. 141 concerns the privacy issue, which is very important. I was glad to receive the assurance of the noble Baroness that the issue concerns the Government and that it is addressed through the mechanism of Clause 121. I shall not move that amendment.
Amendment No. 142 concerns the position of company directors. I accept what the noble Baroness has said that the conditions apply in other legislation, particularly under the Terrorism Act 2000. One hopes that the conditions are applied sensibly and sensitively in an undoubtedly difficult area. Again, in the light of the assurances, I shall not move that amendment either.
When I read this clause I simply did not believe my eyes! The idea that it has been perfectly legal to cause a nuclear weapon to explode ever since they were invented strikes me as totally hysterical. They have them in council house fireworks parties for 5th November. So too is the idea that if I have a five kilotonne nuclear bomb in the back of my car and I am driving down Camden High Street and I am stopped by XPlod" who says, X'Allo, 'allo, 'allo, what have you got in there? Is it an atomic bomb?" to which I reply, XYes, officer, it is an atomic bomb, but you know that it is perfectly legal to have one", I cannot be arrested. However, if I had a .22 starting pistol that would have been a very different matter altogether and I could have been arrested and locked up.
The point of this amendment, apart from giving hours of harmless amusement, is to find out why such possession has not been made a criminal offence before. There are two small points. Clause 48(1)(b) refers to a person who,
Xdevelops or produces, or participates".
Presumably, if a British scientist is recruited by the French or American nuclear authority, he will not be prosecuted. Presumably, it would mean that if the noble Lord, Lord Sainsbury, with his great knowledge of science, was likely to be recruited by the Iraqi atomic energy authority when he leaves government, he would not be allowed to do so.
What I am trying to get at is the total joy of finding in an Act of Parliament that a person knowingly causing a nuclear weapon explosion is guilty of an offence. There is a slight seriousness underneath this. Who is allowed to help with nuclear research, under what circumstances and where? Is this clause simply clarifying what has been the law or is it new legislation? I beg to move.
Our Amendment No. 135 is put forward with the same probing inquisitiveness as that shown by the noble Earl, Lord Onslow, but with a slightly different emphasis. My colleagues are worried that legislation at the moment does not include so-called Xdirty bombs". This amendment is intended to bring them within the ambit of the Act.
I thought that we would have some fun with this amendment, not least because the noble Earl rushed along the corridor the other evening, waved the Bill under my nose, and said XWould you believe it?". As drafted, this amendment would delete the substantive offences from the nuclear weapons clauses in the Bill. That would clearly destroy the purpose of both this clause and Clauses 49 to 56, which refer to it.
The noble Earl will not be surprised to know that I cannot accept his amendment. I understand that he is concerned that causing a nuclear explosion is not currently an offence. He is right. It is not in and of itself an offence so to do. But while it is not a specific offence, it would fall foul of a number of existing provisions—including the endangering of life and damage to property—as well as of Section 2 of the Explosive Substances Act 1885, which carries a maximum penalty of life imprisonment.
Therefore, I strongly advise the noble Earl that, should he come across a nuclear device in his drive one morning, he should not pop it into the back of his car and drive around with it because he might find himself in considerable difficulty. It is very hard to imagine a nuclear explosion that would not cause danger to life or indeed to property. I do not believe that even the noble Earl's powers of persuasion would see him through that predicament.
Similarly, many of the offences relating to production, development, possession and transfer would be covered under existing legislation. I do not believe that the noble Earl should be too worried about this matter although he is quite right because there is no offence.
The noble Earl also asked about United Kingdom scientists working for what I can only describe as Xfriendly" countries. We would be able to authorise a specific scientist to work for an ally. Indeed, from my previous incarnation in the Ministry of Defence I am aware of a number of occasions when scientists have moved between the countries of NATO allies. I am sure that that is very much what the noble Earl would expect.
Making the acts set out in Clause 48 illegal in their own right is an important part of our efforts to strengthen the existing legislation although the noble Earl obviously believes that it is comic that we should have to do so. There is a very important role to play in the strengthening exercise. There is no doubt that we regard these offences particularly seriously and that we consider life imprisonment to be a suitable penalty for those found guilty of them. It will help to ensure that terrorists cannot use any expertise to which they may have access to develop nuclear devices or to threaten to use them, if they succeed in making one. Now that the noble Earl has had his bit of fun, I hope that he will not press his amendment.
I turn to the amendment tabled by the noble Lord, Lord McNally. The amendment seeks to widen the definition of a nuclear weapon to include the so-called radiological or—as he termed it—Xdirty" bomb, which is the way that it is often described. There has been a great deal of speculation about such devices. For obvious security reasons I shall not detail how they are made or what effects they have, but I sympathise with the noble Lord's intention in tabling the amendment.
The Government do not want to see terrorists seeking to acquire or use such devices any more than does the noble Lord. However, we are confident that other provisions in the Bill, such as those relating to noxious substances in Clause 112, together with other existing legislation such as the Terrorism Act 2000 and the Nuclear Material (Offences) Act 1983, provide sufficient legal sanctions against such activities. We do not, therefore, think that making specific provision of the kind suggested in the amendment is necessary.
One further point is that the Government do not think that it is desirable to blur, even for the limited purposes of this part of the Bill, the clearly understood character of a Xnuclear weapon". We do not believe that it would be helpful to lump together that and radiological weapons or to treat as of equal significance devices based on conventional explosives and those relying on a nuclear chain reaction leading to an atomic detonation, which are of a special, indeed unique, nature.
I hope that the noble Lord feels that I have given him enough indication of why we do not support his amendment. Although we have a great deal of sympathy for it, we believe that it is covered elsewhere in the Bill. To cover it in the way that he suggests would actually lead to more confusion and difficulty about the way in which we define what is nuclear. I hope that the noble Lord will feel that he does not need to press his amendment.
Although the section gives cause for merriment, does the Minister not agree that one of the changes in mindset that we must take on board after 11th September is to contemplate what was previously the unthinkable? Before 11th September the idea of suicide pilots flying jumbo jets into skyscrapers would have been thought of as a scenario for Hollywood movies. References to nuclear weapons and dirty bombs might seem to be part of XJames Bond" or XDr Strangelove". But the truth, as can be seen from some of the intelligence discovered, is that there are people trying to develop weapons along those lines. I suspect that, both in legislation and the whole mindset of our approach to terrorism, we shall have to take on board thinking the unthinkable in order to be ahead of the terrorists rather than simply reacting to them. But I understand the Minister's point.
I agree. I hope that much of what I have said today on previous amendments indicates my own belief that we are in a very different position post-September 11th to that which we were in before.
My point about the noble Lord's amendment is that we do not want in any way to muddy the terms and definitions of what is understood internationally as Xa nuclear weapon". In particular, we do not want to do that in terms of the non-proliferation treaty. I hope that the noble Lord will accept my assurances that it is covered in a different part of the Bill and that we have enormous sympathy with his point. We just believe that it is better dealt with in a different way.
Tabled in this group is Amendment No. 138 standing in my name. Perhaps that is to be addressed separately.
It might be called—rather boldly from a spokesman from these Benches—the Matrix Churchill amendment. Its purpose is to give an additional defence to those in Clause 50. The defence is,
Xfor the accused to show that he reasonably believed he was acting for, or with the authority of, the Government of the United Kingdom".
I realise that in the twilight world of intelligence, which I certainly do not want the noble Baroness to comment on, people who might have been acting with the authority of the state are disowned. That may be the end of the matter. Nothing can be done for them. But in the open world we know, and as the Matrix Churchill case showed, an accused may think that he or she was acting with government authority. We think that the additional defence would be prudent here. Just as someone who does not know that he is dealing with nuclear material has a defence under the clause, so should someone who has reason to think that he is acting for or with the authority of the Government. That is the purpose behind the amendment. I should be grateful for the comments of the noble Baroness.
As the noble Lord says, the amendment has the effect of providing a further defence to a person accused of offences under Clause 48; namely, that he or she reasonably believed that he or she was acting for, or with the authority of, Her Majesty's Government.
The Government do not believe that that would be a helpful change. It blurs what we believe is a clear distinction between what has been authorised and what has not been authorised. If a person intends to conduct such activities and wants to stay on the right side of the law, he or she really should take legal advice and, if necessary, apply to the Secretary of State for an authorisation. The Secretary of State could then grant an authorisation if he thought that doing so was in the national interest.
It seems to the Government to be unhelpful to widen the field of those acts. Clause 48 would not make an offence by adding this subjective test in the way that the noble Lord suggests. I understand that there may be some difficulties about how the authorisation process works. It will work in a similar way to authorisations for military action and the way that those are given. Obviously, we do not want to discuss those in detail on the Floor of the House. However, I can tell the noble Lord that it is a question of the chains of command that are in place in whatever service one is operating and ultimately it is a matter of ministerial consent that is necessary in order for this to have proper legal backing.
The noble Baroness had a much easier task with the amendment than she did with Clauses 110 and 111. On this particular clause, even I do not think that there should be a sunset clause; that after two years we should all be allowed to use nuclear weapons. Anyway, I thank her for joining in what I must admit has been an awfully good joke and doing it with such charm. I thank her also for answering the questions which arose out of this little divertimento. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 135 and 136 not moved.]
Clause 48 agreed to.
Clause 49 [Exceptions]:
[Amendment No. 137 not moved.]
Clause 49 agreed to.
Clause 50 [Defences]:
[Amendment No. 138 not moved.]
Clause 50 agreed to.
Clause 51 [Assisting or inducing certain weapons-related acts overseas]:
[Amendment No. 139 not moved.]
Clause 51 agreed to.
Clause 52 agreed to.
Clause 53 [Powers of entry]:
[Amendments Nos. 140 and 141 not moved.]
Clause 53 agreed to.
Clause 54 agreed to.
Clause 55 [Offences]:
[Amendment No. 142 not moved.]
Clause 55 agreed to.
Clause 56 to 58 agreed to.
[Amendment No. 142A not moved.]
Clause 59 [Pathogens and toxins in relation to which requirements under Part 7 apply]:
[Amendment No. 143 not moved.]
In moving Amendment No. 143AA, I shall speak also to Amendments Nos. 143AB, 143BA, 143BB and 144A in that order. The Explanatory Notes state that the managers of laboratories and other premises holding stocks of specified disease-causing micro-organisms, as in Schedule 5, should be required to notify their holdings and to comply with any reasonable security requirements which the police may impose. In order to ensure such security, it is also sensible that on request they furnish the police with details of people who have access to dangerous substances held there.
Perhaps I may preface my remarks by informing the Committee that police security checks are already being conducted on some of the laboratories which hold organisms and toxins identified in Schedule 5. Those visits are proving helpful to staff by providing advice on security and crime prevention.
The purpose of the amendment is to ensure that the vital diagnostic and research work of the nation's medical and veterinary laboratories is not seriously impeded by the legislation. The current wording of Clause 59(5) states that a substance is not to be regarded as dangerous if,
Xit satisfies prescribed conditions; or . . . it is kept or used in prescribed circumstances".
But those prescribed conditions and circumstances are not defined.
Some of the nasty micro-organisms identified in Schedule 5 are often found to be infections contracted by travellers abroad and identified when they return to this country ill. Therefore, clinical specimens from such patients are handled by routine NHS laboratories, many but not all of which are accredited.
When an organism in the schedule is identified, the specimen should then be sent on to a specialist reference laboratory and it is essential that only a credited laboratory may receive, store or use such organisms. The laboratory must ensure precise identification of the type and sub-type of the organism. In order to do that detailed analysis, the laboratories are required to hold a stock of reference cultures of the organisms and those are held securely.
Although laboratories should be fully accredited, that is currently a voluntary procedure and some are not. It seems essential that non-accredited laboratories which may detect the micro-organism listed in Schedule 5 do not then continue to handle it; nor do they invite such specimens from other laboratories. Hence the tabling of Amendment No. 143AA, to insert that:
XSchedule 5 organisms and toxins may only be knowingly received by, used on or stored on appropriately accredited or licensed medical or veterinary diagnostic or research premises".
Of course, once the organism is being identified the laboratory is holding it but is not yet knowingly holding it. Hence the tabling of Amendments Nos. 142AB and 143BA.
The next problem for laboratory staff is Clause 62. The problem is that several of the reference cultures are held in hospitals which by their very nature are public buildings. It is impossible for the management of such a hospital to list all the people who will enter the building or site of which the premises form part as the whole population is potentially involved. Unfortunately, in some buildings it is not even possible to ensure that subsection (1)(c) could be enforced, since the corridor through the laboratory area is a fire exit, so it cannot be locked off from the remainder of the building. Even the Public Health Laboratory's headquarters has many international professional visitors to it and even though they are not given access to the secure section, they pass through many parts of the building. The requirements in paragraphs (c) and (d) do not seem to be reasonable to attempt to enforce. Hence the tabling of Amendment No. 143BB to omit paragraphs (c) and (d) from subsection (1) of Clause 62.
The other problem is that laboratory staff are poorly paid yet highly skilled. These laboratories are therefore staffed below establishment because they cannot recruit. The pressure of normal operational work means that staff on the lower gradings are being brought in at short notice, either from agencies or from job centres. The requirement to give 30 days' notice of the persons entering the premises becomes unworkable. Taking the example of an epidemic, the epidemic would be well and truly over by the time the staff could start work or police time would otherwise be taken up continually issuing exemptions for the new members of staff who are taken on. Hence the suggestion that the wording be amended to ensure that the 30-day rule does not apply to laboratories where diagnostic and diagnostic reference work is conducted, as outlined in Amendment No. 144A. I beg to move.
Before I make my general comments on the amendment, it would be wise to acknowledge the noble Baroness's great expertise in the field. I sense the sympathy of the Committee for that expertise and detailed knowledge. We are most grateful for the way in which the amendments have been tabled because they have opened up an interesting issue.
Amendment No. 143AA would prohibit anyone from knowingly holding Schedule 5 organisms on any premises which were not appropriately accredited or licensed. As we understand the position, the problem with that is that the Bill does not set up any arrangements for accreditation of licensing. We have opted instead for an approach which deals specifically with the problem of the potential use of these substances for terrorist purposes. The Bill therefore focuses on making sure that the right security measures have been taken.
The Bill does that not by a licensing procedure, but by ensuring that the police have access to all necessary information in order that the right precautions can be taken. We have not thought it necessary to set up a licensing system in order to do that. Indeed, any such system could well overlap with the employee safety controls already administered through the Health and Safety Executive.
The effect of the amendment as it stands would be to end all work on substances named in Schedule 5 in this country. I am sure that that is not what the noble Baroness intended and that is not what the Government want to bring about. As a result, we cannot advise the Committee to accept it.
I turn to Amendments Nos. 143AB and 143BA. I fully understand the reason behind them and the reason for tabling them. It would seem to us to be entirely unreasonable if a person were prosecuted for failing to supply information relating to a holding of dangerous substances which he or she did not know about. But we are also clear that the amendments are unnecessary. Clause 68 provides that,
XAn occupier who fails without reasonable excuse to comply with any duty or direction imposed on him by or under this Part is guilty of an offence".
This means that a person who genuinely could not have been expected to know that he or she held the substances in question will not be liable to prosecution. The Government prefer this approach to that of the noble Baroness because her amendments would let off the hook a person who claimed that, out of sheer negligence, he or she had not taken the trouble to find out what dangerous substances were held in the laboratory. I hope that the existence of the Xreasonable excuse" provision reassures the noble Baroness that these provisions will operate completely fairly.
Amendment No. 143BB concerns the information which the police may require about people who have access to dangerous substances, or areas in which dangerous substances are kept. The amendment would give the police power to require lists of people who had access to dangerous substances themselves, or to specified parts of premises where dangerous substances were kept. I am glad that we agree on that. But it would remove the power to ask for a list of people who had access to the premises as a whole or to any building or site of which the premises formed part. We believe that the police may need that power in some circumstances.
If the area within the premises where the dangerous substances are kept cannot be made totally secure, access to the premises as a whole will need to be very carefully controlled. If the premises themselves cannot be made secure, access will also need to be controlled very carefully. It may be necessary to treat a wider area—a building or even a site within which the premises are situated—as a single secure area on the basis that once someone has access to that secure area it may not be possible in practice to stop him from getting access to the premises themselves. It is for that reason that we believe the police should have the power to obtain details of everyone having access to the premises, or, where necessary, a building or site of which the premises form part; otherwise, the intention behind these provisions could easily be thwarted. I hope that for those reasons the amendment will not be pressed.
Amendment No. 144A relates to the situation in which the police have asked for and received details of people who have access to particular premises where dangerous substances are kept. If the manager of the premises wishes to admit someone else, his details must also be notified to the police and he will not to be allowed access for 30 days unless the police clear the application earlier than that. This amendment would apply only to premises where diagnostic and diagnostic reference work was conducted and would mean that a person, once notified to the police, could have access to such premises immediately. We cannot agree to this amendment. However, I hope that I shall be able to allay the concerns which lie behind it. If we agreed to it, it would mean that a potential terrorist could have access to dangerous disease stocks without the police having had time to check on his background. That would frustrate the whole intention of the clause, which is precisely to ensure that in high risk situations there is time for a police check to be completed. The fact that the amendment would apply only to laboratories where diagnostic and diagnostic reference work was conducted would not remove the risk because there could be no guarantee that a laboratory where that work was being conducted did not hold stocks of substances which could be amenable to use by terrorists.
While I must invite the Committee to reject the amendment, I recognise that there are concerns that some of the substances which this Bill would bring under control may not be harmful when used in minute quantities for diagnostic purposes. We intend to bring forward a statutory instrument, the terms of which we are currently discussing with representatives of the scientific community in great detail, which would exclude from the controls of the Bill any premises in which Schedule 5 dangerous substances are held only in a specified form or under specified conditions which mean that they pose no danger to human beings. This should ensure that many or most premises which use Schedule 5 substances only for diagnostic purposes should be exempt from the controls created by the Bill.
I apologise for the length of my response, but I believe that the seriousness of the matter raised by the amendments deserves a full reply. In view of that, I hope that the noble Baroness will take careful note of what has been said and will not press her amendments.
I note what the Minister says. However, I am concerned about chlamydia psittaci. The noble Baroness has tabled an amendment to change the name of it. I understand that every bird in the land suffers from chlamydia psittaci. Is the Mayor of London required to report to the Secretary of State every single pigeon in Trafalgar Square? When I passed through the square today I could hardly put my feet down because of the pigeons. What is the position as far as concerns this disease in birds? I also understand that when the birds are stressed they expel large quantities of the bug.
To assist the noble Countess, I believe that the issue she raises is covered by the next set of amendments, not this one.
I thank the noble Lord for his reply. I assure the Committee that there is an accreditation procedure in place for laboratories. Therefore, hospital laboratories which have opted into accreditation go through a standardised procedure which is linked to health and safety regulations. The premises on which these micro-organisms and toxins are held are locked—usually they are kept in refrigerated safes—to which only a small number of people have direct access. The problem is related to access to the building in which a safe may be held. That was the concern of laboratory staff. I am pleased to hear that a statutory instrument is now being drafted. I ask the Minister to reassure the Committee that the Public Health Laboratory Service and a selection of NHS laboratories are being consulted in the drafting of the statutory instrument to ensure that it is completely workable by those on the ground who conduct the diagnostic processes.
We are consulting in detail with precisely those organisations, and it is our intention to work very closely with them.
Perhaps I may be allowed to put one question which I intended to link to Amendment No. 143 which was not moved. Is the security of pathogens and toxins a reserved matter, or is it devolved to Scotland? Depending on the answer to that question, who is the Secretary of State referred to in subsection (2) of the clause? Is it the same Secretary of State who is referred to in Clauses 60, 64 and 65? It may be that the list of substances which we are debating in this clause will be drawn up by the Home Secretary and he is the only one who will amend it. I do not know. It appears to me that in the other clauses the reference must be to the Secretary of State for Scotland, the Scottish Executive or the National Assembly for Wales. We are dealing with different matters linked to residents in houses who keep materials. I do not expect an answer now if it is a puzzle, but I believe that this needs to be clarified. It is not obvious to me how it will work in different parts of the United Kingdom. I hope that the Committee will forgive me for detaining it when Members want to eat.
I cannot answer the question whether this is a reserved or devolved matter. However, I have always been told that Secretaries of State are wholly interchangeable. Part 7 is concerned with terrorism which is not a devolved matter. For practical purposes the Secretary of State is the Home Secretary. My understanding has always been that there is only one Secretary of State who carries out that function. In relation to the particular part of the clause to which the noble Baroness refers, the reference is to the Home Secretary.
I thank the noble Lord for his response. However, I have a slight problem in trying to decide how the Bill is going to work in Scotland. It seems unlikely that Scots residents will deal with the Home Secretary under Clauses 64 and 65. Can we be quite certain that all these points will be clarified?
I appreciate that Secretaries of State may be interchangeable, but which Secretary of State would be operational in each case? We need to know that in order to be sure that the provisions will work well.
I beg to move that the House do now resume. In moving the Motion, I suggest that we do not return to this business until twenty minutes to nine.