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Standing Committee BThe Committee consisted of the following Members: Chairmen: † Sir Nicholas Winterton, David Taylor †Anderson, Mr. David (Blaydon) (Lab)
†Banks, Gordon (Ochil and South Perthshire) (Lab)
†Bellingham, Mr. Henry (North-West Norfolk) (Con)
†Brown, Mr. Russell (Dumfries and Galloway) (Lab)
†Burt, Lorely (Solihull) (LD)
†Coaker, Mr. Vernon (Lord Commissioner of Her Majesty’s Treasury)
†Cooper, Rosie (West Lancashire) (Lab)
†Donaldson, Mr. Jeffrey M. (Lagan Valley) (DUP)
†Durkan, Mark (Foyle) (SDLP)
†Ellwood, Mr. Tobias (Bournemouth, East) (Con)
†Foster, Mr. Michael (Worcester) (Lab)
†Hanson, Mr. David (Minister of State, Northern Ireland Office)
†Harris, Mr. Tom (Glasgow, South) (Lab)
†Hendrick, Mr. Mark (Preston) (Lab/Co-op)
†Hermon, Lady (North Down) (UUP)
†Hillier, Meg (Hackney, South and Shoreditch) (Lab/Co-op)
†Hunt, Mr. Jeremy (South-West Surrey) (Con)
†Irranca-Davies, Huw (Ogmore) (Lab)
†McDonagh, Siobhain (Mitcham and Morden) (Lab)
†McDonnell, Dr. Alasdair (Belfast, South) (SDLP)
†Moon, Mrs. Madeleine (Bridgend) (Lab)
†Öpik, Lembit (Montgomeryshire) (LD)
†Robertson, Mr. Laurence (Tewkesbury) (Con)
†Robinson, Mr. Peter (Belfast, East) (DUP)
†Slaughter, Mr. Andrew (Ealing, Acton and Shepherd’s Bush) (Lab)
†Todd, Mr. Mark (South Derbyshire) (Lab)
†Wallace, Mr. Ben (Lancaster and Wyre) (Con)
†Waltho, Lynda (Stourbridge) (Lab)
†Wilson, Sammy (East Antrim) (DUP)
Alan Sandall, Committee Clerk
† attended the Committee
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Tuesday 6 December 2005
(Afternoon)[Sir Nicholas Winterton in the Chair]Clause 1 Offences to which the Act applies Amendment proposed [this day]: No. 111, in clause 1, page 1, line 6, leave out ‘(whether committed for terrorist purposes or not)’. —[Mr. Laurence Robertson.] 4.30 pmQuestion again proposed, That the amendment be made. The Chairman: I remind the Committee that with this we are discussing new clause 2—Certificates for offences committed in the course of efforts to combat terrorism in Northern Ireland— ‘(1) Where an application is made to the certification commissioner for a certificate of eligibility, the commissioner must issue a certificate if— (a) the applicant is accused of an offence committed in the course of efforts to combat terrorism in Northern Ireland, and
(b) it appears to the commissioner, on the information available to him, that the applicant meets the conditions set out in section 3 above.
(2) The commissioner may preserve the anonymity of any person who makes an application under this section, if he sees fit.’. The Minister of State, Northern Ireland Office (Mr. David Hanson): Our discussion this morning centred on the scope of clause 1 and questions about the potential inclusion of members of the security forces if they have committed relevant offences in relation to new clause 2 and clause 1. To clarify the position, I can only repeat what I said this morning, but I hope that I can reassure hon. Members. What I said about the amendment tabled by the hon. Member for Tewkesbury (Mr. Robertson) remains the case. During this morning’s sitting we debated the link between clause 1 and the list of offences contained in schedule 9 to the Terrorism Act 2000, commonly referred to as scheduled offences. In drafting the Bill, the Government took care to ensure that the definition in clause 1(1)(a) was deliberately and carefully formulated to cover the same offences as those contained in the defined offences in schedule 9 to the 2000 Act. Those in the Committee who are familiar with that Act—the hon. Member for Montgomeryshire (Lembit Öpik) was present during the deliberations on it—will know the rationale behind the schedule. Schedule 9 lists offences committed where there is a possibility, to use the old parlance, that they were undertaken in connection with the emergency in Northern Ireland. For ease of reference, I have managed to secure a copy
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of the 2000 Act. The substantive offences in schedule 9 include murder, manslaughter, riot, kidnapping, false imprisonment and a range of other offences. Procedurally, as hon. Members will know, when an individual is charged with a scheduled offence under the Act, the Attorney-General considers whether the offence has been committed in connection with terrorism in Northern Ireland. In doing so, the Attorney-General decides whether the individual should be tried by a jury for an ordinary offence of murder, if I can call it that, such as one committed through domestic violence, or whether the offence of murder is connected to terrorism and the affairs of Northern Ireland in the way that I described before lunch. If the latter, the case is referred to the Diplock court and considered as a scheduled offence under the Terrorism Act. The purpose of clause 1(1)(a) is to replicate the effect of that legislation. The Attorney-General considers whether the offence was committed in connection with the emergency in Northern Ireland and clause 1 is worded in exactly the same way to capture the same offences as those that would be tried as scheduled offences. We do not use the terms “scheduled” or “non-scheduled” offences, because it has proved difficult to draft in those terms, but I assure hon. Members that the effect of clause 1(1)(a) is to ensure that schedule 9 will operate, with the certification commissioner having the same types of powers as the Attorney-General to determine whether offences are scheduled offences. Under later clauses, the certification commissioner will consider whether the offence is one to which the Bill applies—that is, whether it has been committed in connection with terrorism and the affairs of Northern Ireland. The words in clause 1(1)(a) that are in brackets are intended to express as clearly as possible that offences committed in connection with terrorism will include, for the purposes of the Bill, offences committed in the course of combating terrorism. That takes me on to new clause 2 and the second part of the impact of the legislation. Mr. Jeremy Hunt (South-West Surrey) (Con): I appreciate the assurances that the Minister is trying to give, but can he explain why, despite his saying that this is all covered by the Terrorism Act 2000, there is no reference to that Act in clause 1(1)(a)? There is a reference to it in clause 1(1)(b). If everything is as the Minister’s assures us—I am sure that it is—why can he not accept the amendment? Mr. Hanson: I cannot accept it because the amendment will alter the terms of the clause as it has been proposed. I have tried to assure hon. Members of the Committee—this is quotable for future reference in case law, as hon. Members know—that the provisions of clause 1(1)(a) are linked to the operation of the Terrorism Act 2000 and schedule 9 to that Act. I have not been able to draft the clause specifically to that effect due to technical difficulties—I am happy to go though the range of difficulties in writing, if that is what hon. Members want—but the effect is the same. I hope that any future legislator or interpreter of the
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legislation will be reassured by my words, as the Minister taking the Bill through Committee, that thed ¤effect of clause 1 is exactly the same as schedule 9 to the Terrorism Act 2000. The measure also relates to the sensitive issue raised in new clause 2 by the hon. Member for Belfast, East (Mr. Robinson), the hon. Member for Lagan Valley (Mr. Donaldson) and others, and to the Government’s intention in proposing the clause as currently defined. Coming to terms with that issue and making judgments about it has been difficult for the ministerial team, but we have decided that the proposals relating to so-called on-the runs that were announced and discussed in 2003, then published by the British and the Irish Governments, cannot go through this House—and not for the simple reason that Opposition Members have suggested, that the proposals are sweeteners. We thought very deeply and made hard decisions on how to take the matter forward. Our decision is that it is incompatible with common decency to give someone who committed a serious terrorist offence prior to 10 April 1998 the facility to apply for a certificate, to go before the court in general terms, to have a conviction and then to be released on licence, while at the same time individuals who have served their country may—for the reasons mentioned by the hon. Member for Lancaster and Wyre (Mr.d ¤Wallace), amongst others—be subject to charges of murder or of other serious offences committed prior to 10 April 1998 and to being tried an ordinary court and sentenced to a long term of imprisonment if convicted. The key point for us is not necessarily who has committed the offence, although that is important in general terms. It is that an individual has been charged with having committed, “an offence . . . in connection with terrorism and the affairs of Northern Ireland”, prior to 10 April 1998. If a soldier and a terrorist are both charged with murder, although their cases are not broadly compatible, the offence with which they are charged is ultimately the same. In all fairness and justice, the Government had to include members of the security forces in the Bill, not as members of the security forces but as individuals charged with committing an offence relevant to clause 1, either through collusion or directly. If we had not done that, individuals involved in the security forces would face trial, conviction and imprisonment for an offence while a terrorist committing an horrendous act would face trial and conviction, but be released on licence. That is the reason we have undertaken that format. I will certainly give way. Lady Hermon (North Down) (UUP): Will the Minister enlighten us as to when the Government team came to that difficult decision? Is it the case that the former constituted Northern Ireland Human Rights Commission made a recommendation to the Government that there would be human rights implications if that were not done?
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Mr. Hanson: I am in a difficult position, Sird ¤Nicholas, in the sense that although I am a Government Minister, I was not in this position prior to the general election. Since May 2005, the Secretary of State and I, as the Ministers responsible for this legislation—the bulk of which we inherited from previous Ministers—have considered how to manage it and deal with its impact. We had to decide what to do in respect of service personnel if it were decided that terrorist suspects should potentially have a route through a scheme that gives them a conviction and releases them on licence. We had to establish in our own mind what would happen to individuals who had served in the armed forces and were charged with having committed an offence prior to 10 April 1998, whether that offence was one of collusion or of the type described by the hon. Member for Lancaster and Wyre, or whether it emerged from one of the ongoing inquiries. We had to take a decision to apply the scheme fairly and honestly to all. Not all the individuals in question have faced similar circumstances—we cannot and will not morally equate terrorism with the activities of the security forces—but the offences for which any conviction is pending are similar. Had not done as we have, we could have faced a situation in which a soldier who committed an offence could be sentenced to imprisonment and there would be no licence agreement, but a terrorist who committed and was charged with the same offence could be released on licence under the scheme. I recognise that there is total opposition to the idea of a terrorist receiving the type of sentencing system that has been described by Opposition Members and by the hon. Member for Foyle (Mark Durkan) and others in his party. However, I hope that they recognise that if the Government proceed with that aspect of the legislation, they will also be giving fair treatment to individuals who face charges at the same level. Sammy Wilson (East Antrim) (DUP): The Minister has sought to explain the relationship between clause 1(1)(a) and the Terrorism Act 2000 and he has indicated that the term “in connection with terrorism and the affairs of Northern Ireland” reflects the definition in the 2000 Act. I, too, took the liberty of getting a copy of the Act. Perhaps the Minister will explain where terrorism is defined in schedule 9 or section 1 of the 2000 Act, or where the terms that he has said are lifted from that Act and put in clause 1(1)(a) are to be found. I have searched through the Act and not found them. It would be helpful if he pointed me to the line where that term is used. Mr. Hanson: I hope that I can reassure the hon. Gentleman. For the record, because that is important, our assessment is that the meaning of clause 1(1)(a) is the same as that under the 2000 Act. That is also the legal assessment that we have come to in drawing up clause 1(1)(a). We can kick this subject around for a long time and I am happy to continue, but I am trying to reassure the Committee that the Government’s
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assessment, having discussed the matter with parliamentary draftsmen and the legal team, is that schedule 9 to the 2000 Act relates to clause 1(1)(a), which is why the clause is framed as it is. Sammy Wilson: With due respect, we are now moving from the definition as taken from the Act to the Minister’s assessment of the definition. I do not think that, given the seriousness of the matter, an assessment is good enough. Either the clause reflects the definition of terrorism that is contained in the 2000 Act or it does not. It is not good enough on a matter of such importance to say, “It is our assessment.” On which part of schedule 9 or section 1 is that assessment based? Mr. Hanson: We have kicked this subject around for the best part of 45 minutes. I can only say again that the criteria that we have set out are similar to those used by the Attorney-General to ensure the operation of the schedule to the 2000 Act. That is why included them in the Bill. 4.45 pmLembit Öpik (Montgomeryshire) (LD): It is appropriate that we spend time on the subject because it is so important. I hope that the Minister agrees that it is a good use of our time. The Minister seems to be saying that the definition in clause 1(1)(a) means exactly the same as the definition contained in the Terrorism Act 2000. Will he confirm that the two definitions are exactly the same, in which case why is he not using exactly the same language; or does he accept that they are not the same, in which case will he explain the variation between the two definitions? Mr. Hanson: I am in danger of repeating myself. In drafting the Bill, the Government and the parliamentary draftsman ensured that the definition in clause 1(1)(a) was deliberately and carefully worded to cover the same offences are covered in the schedule of offences in the 2000 Act. I hope that anyone reading the record of this Committee in future will accept that subsection (1)(a) has been deliberately and carefully worded to ensure that it covers the same offences as defined in the schedule of offences in the 2000 Act. That is our assessment. The legal reason why we drafted the Bill as we have is that we wanted to ensure that the Bill met the obligations of assessment that I want to happen. We wanted to ensure that we covered both the affairs of Northern Ireland and terrorism and—I know that the hon. Member for Foyle disagrees with this—to ensure that individuals such as military personnel who served prior to 10 April 1998 would be able to avail themselves of the same scheme. Mr. Hunt: May I confirm, on the basis of what you are saying about new clause 2— The Chairman: I am not saying anything.
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Mr. Hunt: I apologise, Sir Nicholas. The Minister is saying that the scheme will apply not only to those accused of offences committed in the course of efforts to combat terrorism, as set out in new clause 2, but to members of the security forces involved in collusion with paramilitary and terrorist organisations. In other words, it goes wider than the scope of new clause 2. Will the Minister confirm that? Will he also say whether he agrees with the subsection (2) of new clause 2, which deals with the important issue of anonymity? Mr. Hanson: I must tell the hon. Gentleman that we have all done it in our time, so he should not worry about it. It is an easy mistake to make. On new clause 2 and my interpretation of the Bill, we believe that individuals involved in the security forces prior to 10 April 1998 who are charged with offences will be able to avail themselves of the Bill’s provisions. That would potentially include individuals who were involved in collusion and those who were involved in the type of incident mentioned earlier by the hon. Member for Lancaster and Wyre. The Bill is designed to deal with the offence rather than the individual. It is framed to cover the affairs of Northern Ireland and associated terrorism so that individuals can avail themselves of the scheme. I return to new clause 2 and the reason why the Government framed the proposals as we did. The new ministerial team reflected on the matter and when we were ready to legislate we decided that it would be unfair to individuals who served in the military prior to 10 April 1998 who were charged with serious offences if they could not avail themselves of the scheme, when terrorists who were charged with serious offences would be able to do so. Mr. Peter Robinson (Belfast, East) (DUP): The Minister says that the definition of terrorism used in the Bill is the definition contained in the Terrorism Act 2000. I cannot immediately find a definition for terrorism in that Act, but section 40 of that Act defines a terrorist as a person who has committed an offence “under any of sections 11, 12, 15 to 18” and several others, and under section 17 a person commits an offence if “he enters into or becomes concerned in an arrangement as a result of which money or other property is made available or is to be made available to another”, or engages in a range of other activities relating to money laundering. In effect, any act that raises funds for terrorist purposes is an offence. In the Bill, however, terrorism is further defined and qualified by the additional phrase: “(whether committed for terrorist purposes or not)”. While bank robberies and other matters will be regarded as acts of terrorism under the Terrorism Act 2000, can we assume that such acts are covered by the Bill if they are committed “(whether . . . for terrorist purposes or not)”? Mr. Hanson: The phrase “(whether committed for terrorist purposes or not)” is used so that the armed forces and security forces are covered. We believe that schedule 9 to the 2000 Act is covered by clause 1(1)(a) of the Bill. There is
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disagreement about interpretation, but I have been as clear as I can about that. Just as under that Act the Attorney-General determines whether or not an offence was committed for terrorist purposes, so under the Bill the certification commissioner will consider whether an offence was committed for terrorist purposes. Mr. Ben Wallace (Lancaster and Wyre) (Con): My understanding of the Minister’s answer is that the reason why the Government have left the door open wider than for terrorist offences is that should members of the Special Air Service who took part in Loughall be charged with unlawful killing, which would not obviously be a terrorist offence, they, too, could use that breadth to take advantage of the provisions of the Bill. Is that correct? Mr. Hanson: Without commenting on specific cases because that that would be difficult, the offence to which the hon. Gentleman referred is the type of offence to which the certification commissioner could consider applying the scheme, because of the way in which the Bill is phrased. Going back to basics, we have included the phrase and accepted the scheme, while accepting the opposition of hon. Members to the principle of the scheme. If we apply the scheme to terrorists, we as a Government must apply it to all those who are connected with Northern Ireland offences and are being charged for them. Mark Durkan (Foyle) (SDLP): Earlier the Minister described the difficult decisions that had to be made by the current ministerial team. In response to a previous intervention, he said that the team decided that the provisions of the Bill would extend far and wide and include members of the security forces. Both in Committee and on Second Reading, he and the Secretary of State warned hon. Members that, if we did not pass the Bill, we would be jeopardising progress and undermining a previous agreement on which progress depended. Is the Minister confident that no understanding that the Government have with Sinn Fein and, through Sinn Fein, with anyone else, will be compromised or jeopardised by the ministerial team’s decision to extend the scope of the Bill? What assurance can he give us about that? Mr. Hanson: It will not have escaped the hon. Gentleman that the hon. Member for Belfast, West (Mr. Adams), who has absented himself from our debate, has criticised that aspect of the Bill in a public forum. The Government published proposals to ensure that the outstanding matter of on-the-runs and the measures in respect of them were dealt with at an appropriate moment in the political peace process. We believe that that moment is now. The inclusion of the security forces—enabling them to avail themselves of the scheme in the event of their being charged with offences—is controversial. The Members for Belfast, West, for Fermanagh and South Tyrone and for West Tyrone, and others in Sinn Fein do not accept it and do not welcome it. However, the Government have had to make a judgment—we had to decide whether the completion of the on-the-runs
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agreement in legislative form was an important part of the process. At the same time, we have had to take a decision, which has not proved popular in all quarters, to the effect that members of the security forces can avail themselves of the scheme. Such decisions and judgments are difficult to make. We are not drawing a moral equivalence between the two groups, but to have acted differently would have been highly unfair to individuals who have served their country in the security forces and who have committed acts for which they might be charged, leading to serious consequences if convicted. They might have to serve sentences while those in terrorist organisations are released on licence. Lady Hermon: The Minister has concentrated on explaining that the original proposal, which extended only to OTRs—on-the-run terrorists outside the jurisdiction—has now, after a difficult decision, been extended to the security forces. Will he make it clear to everybody in the Room that the wording of the Bill is much wider than that? It extends beyond the security forces and OTRs to include those who might hold the title Member of the Legislative Assembly and who might turn out in the cold case review to have committed serious criminal offences. Will the Minister confirm that that is the case, and will he then explain to the Committee why the Government came to its difficult decision in the absence of any representations from any political party in Northern Ireland? Mr. Hanson: The hon. Lady is aware that the Bill’s scope extends beyond those who are on the run and members of the security forces. She is aware of that cold case review cases can be covered by this legislation. The Secretary of State explained that on Second Reading and it is transparently clear that that is the case. We are talking about difficult judgments, and the Government judged that the Good Friday agreement was the beginning of an act of completion to move the political peace process forward. We have taken the judgment, difficult though it was, that offences that occurred prior to the Good Friday agreement are now at a distance in time and that we have to move on. Let me remind hon. Members of all parties that if an individual was charged and convicted of an offence prior to the Good Friday agreement and served a sentence, he would have qualified for the early release scheme. I know that some Opposition Members opposed that. To answer the question about on-the-runs, security forces and others, we have taken a difficult decision as one of our building blocks for securing a future for Northern Ireland. There are honest and passionate disagreements about that, but that is why we have done it. Mr. Robinson: Going back two interventions, I am not sure that the hon. Member for Foyle received an answer to his question. He was looking for a response to his recognition that the Government decided to introduce the legislation because they felt that it was an essential component of the peace process and that it was necessary to take the IRA along with them. The
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hon. Gentleman wanted to know whether, whatever their synthetic protests might be about this provision, it was so bad that Sinn Fein was likely to throw its toys out of the pram, or whether it was prepared to thole it, to use an Ulster expression that I am sure the Minister has come to terms with by now. I have no doubt about the Minister’s intention; that was always my understanding of what the Government intended by the words in brackets. However, unintended consequences flow from those words, as we have clearly seen. All that the Minister has offered us has been to say, “When a case emerges in which that is an issue, my words in this Committee will be considered by the courts and I am sure that they will be overwhelmingly impressed by what I have to say.” The truth is, of course, that I have gone down that road in the past. I have gone all the way to the House of Lords with a case in which the words of one of the Minister’s colleagues, Lord Dubs, made the Government’s intention very clear, but the words in the legislation gave the court another impression. The House of Lords voted 3:2 against. The words that the Minister utters in the Committee will, I am sure, impress us all, but they may not impress the courts in the final analysis. 5 pm |
