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Northern Ireland (Sentences) Bill

8.35 p.m.

House again in Committee on Clause 3.

Lord Cope of Berkeley moved Amendment No. 12:

Page 2, line 34, leave out ("in particular").

The noble Lord said: This is a more substantial group of amendments and in moving this amendment, I shall speak also to Amendments Nos. 13, 14, 15 and 18.

I shall speak first about Amendment No. 12 which is the smallest and least significant amendment in this group. In a way, it is separate from the others although they all refer to the way in which determinations are to be made under Clause 3(9) by the Secretary of State in deciding whether an organisation is in fact a terrorist organisation under subsection (8).

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Amendment No. 12 seeks to remove the words "in particular". This is a legal point. I understand that in discussion on the Human Rights Bill, it emerged that the words "in particular" are superfluous. To tell a Minister discharging a statutory function to have particular regard to something is either superfluous or misleading. It is superfluous in the sense that the Minister would not be performing his duty if he failed to have regard to the factors which are relevant; and it is potentially misleading if it is suggested that such factors should exclude other relevant factors.

I am not a lawyer and I do not pretend to understand all the niceties of that particular argument as it was discussed on the Human Rights Bill, but I thought it worth raising the matter for discussion on this occasion.

The other amendment standing in my name and those standing in the name of the Liberal Democrats return to the question of decommissioning, which we have already discussed in part on an earlier amendment. It is my view that the difference between the two sides of the Committee, and in particular between the two Front Benches, is not as significant as some commentators seem to make out on this matter. In the first place, we wish to stay within the letter and spirit of the agreement and I shall explain in a few moments why we believe that our amendment is within the agreement.

But it follows from that that we do not want to create a precondition. The Minister and some of his colleagues have returned time and again to the question of establishing a precondition and he spoke earlier this evening of bartering prisoners for guns. I am not quite sure how he works out that our wording means the establishment of a precondition by comparison with the wording in the Bill. Perhaps we mean something different by the word "precondition". We are not necessarily thinking about exactly the same thing. Therefore, to make it clear, I take it to mean what I believe lawyers call a "condition precedent"--that is to say, something which must be in place before something else happens.

If we had tabled amendments which called, for example, for some or all arms to be given up before any prisoners, or all of them, were released, that would be a precondition--a condition precedent. However, our amendment asks only that the Secretary of State should believe that an organisation is co-operating with the decommissioning commission as opposed to merely taking into account whether or not it is co-operating with the commission. We want the two processes to be parallel. The hurdle that we seek to set up is easy to clear today, as it were, for an organisation that might be affected by this provision when the whole matter of decommissioning is at a very early stage.

Apparently some terrorist organisations have appointed representatives and are talking to the decommissioning commission, while others have not done so. Therefore, in taking into account or deciding whether or not she believes that they are co-operating with the commission, the Secretary of State will obviously have regard to the organisations which are talking and those which are not. If the Secretary of State gives any weight to that at all, she is ensuring, to some degree at any rate, that the two processes are parallel.

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Of course, we are putting a slightly stiffer test on the matter. However, I also promised to say whether I thought it was in line with the agreement. I believe that it is, for the reasons which I explained earlier to the Committee. The very first page of the agreement says:

    "We pledge that we will, in good faith, work to ensure the success of each and every one of the arrangements to be established under this agreement".
So there is a general commitment--a general linkage--between all the different parts of the agreement, including both the decommissioning and the aspects relating to the prisoners. There is also the specific practical link between both decommissioning and prisoners, in that both of them affect the terrorists and the terrorist organisations very directly by comparison, for example, with the setting up of the north/south ministerial council, or some other aspects of the agreement, where those presently languishing--if that is the right word--in the Maze are not so immediately and practically affected. But of course they have every right to expect that all the other parts of the agreement will also be carried out. Indeed, I have no doubt that they will expect that.

We were asked earlier to rely on the character of the Secretary of State--and, indeed, the character of the Prime Minister--as being a guarantee that all would be properly pursued. Frankly, I do not believe that that is really sufficient--not, I hasten to add, for any personal reasons connected with the Secretary of State herself or the Prime Minister, but because, as has already been discussed, the Secretary of State is an institution and not a single person. Indeed, the situation could change even temporarily during which time another Secretary of State might take charge of such matters during the temporary incapacity of the Secretary of State or because of some other difficulty.

In any case, the whole matter has to do with pressures. If there is a gap here and thereby an opportunity for prisoners to be released without decommissioning going along in parallel, it seems to me that people will try to force that gap open. The pressures on the Secretary of State will then be much greater and it will be much more difficult for the Secretary of State--whoever it is at the time--to resist. Those pressures can be of all sorts of different kinds, both democratic and undemocratic. Therefore, I believe it is right to stiffen up the wording of the Bill a little. That is what Amendments Nos. 13 and 15 seek to do.

I put Amendment No. 18 into a slightly different category. Its purpose is to insert the word "and" between paragraphs (9)(c) and (9)(d), which relate to the four conditions. The word "and" is very important. If the Secretary of State is to take into account those four conditions, will she look at each one separately and decide in each case, "Yes, I think we can put a tick against each one"? Alternatively, will the Secretary of State look at all four of them together and say, "Well, on matters (a), (b) and (c) the organisation in question is doing quite well, but on (d), decommissioning, it is not doing very well: never mind, we shall just look at (a), (b) and (c)"? Without the word "and" it seems to me that it is open to the Secretary of State to say just that. Indeed, if it is open, people will press very hard

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for it. They will say, "Look, we are fulfilling (a), (b) and (c). We are doing our best on (d) and admittedly we haven't got anywhere. Nevertheless, we are doing our best and you don't need us to fulfil that one as well". The pressure will certainly be on.

Again, one has to address the question whether or not this is within the letter and the spirit of the agreement. I believe that it is, for the reasons that I have already given but also for another more specific reason. We are constantly referred back to the Prime Minister's speech at Balmoral on 14th May. In that speech, he set out the four conditions, although not precisely as they are set out in the Bill. Nevertheless, they are set out in a similar way. Indeed, the legal drafting gives every indication of having been based on the Balmoral speech. In fact, we have been told from time to time that it does pretty directly reflect the Balmoral speech. However, there is one difference: the Balmoral speech does include the word "and". The four conditions that are set out are set out as if they were separate with the word "and" included, but not as a general statement, which is what appears in the Bill. That is very significant in defending Amendment No. 18 against the charge that it is outside the letter or the spirit of the agreement.

While talking about the Balmoral speech, it is relevant for me to quote what the Prime Minister said immediately after setting out these factors. He said that the factors must be,

    "given legislative expression directly and plainly in the legislation to come before Parliament";
in other words, this Bill. Later, he said that,

    "it is surely reasonable that there should be confidence-building measures from these organisations"--
referring to the terrorist organisations--

    "after all the suffering they have inflicted on the people of Northern Ireland ... we also have a responsibility to provide protection against abuse of the democratic process, and its benefits"--
and there is no bigger benefit to those concerned than this prisoners' Bill--

    "by those not genuinely committed to it".
I agree with that. Indeed, for that reason, I think that this amendment which seeks to include the word "and" is of great importance. However, I do not want to take away from the importance of Amendments Nos. 13 and 15 about which I spoke earlier. As I said, they attempt to insert the proposition that the Secretary of State should believe that decommissioning, among other things, is being carried out by the organisations.

In Amendment No. 14, which is also in this group, the noble Lord, Lord Holme of Cheltenham, is suggesting, appropriately enough from the Liberal Democrat Benches, what I believe one could call a halfway house, in that his amendment would still mean that the Secretary of State would take into account the various factors. But instead of just thinking about them, he or she has to consider the evidence and come to a conclusion on the various factors one way or another. That does not go as far as I would like to go, but I am grateful to the noble Lord for stepping at least a few yards in our direction. I hope that I can persuade the Minister and his colleagues to go at least that far, but if possible further, because that is extremely important.

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I said earlier--I believe this strongly--that if there is no decommissioning the agreement will fail sooner or later. Other things can trip it up, of course, but if there is no decommissioning I believe that confidence in the agreement will fade away to below vanishing point. The only chance of obtaining decommissioning is to make sure that the prisoners realise it has to proceed in parallel because the prisoners will argue for it within the terrorist organisations and then it stands a chance of happening. I beg to move.

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