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Lord Dubs moved Amendment No. 16:

After Clause 12, insert the following new clause--

Interpretation: terrorism

(". In this Act "terrorism" means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear.").

The noble Lord said: My Lords, the Government have tabled this amendment in response to an amendment spoken to by the noble and learned Lord, Lord Mackay, in Committee. The noble and learned Lord proposed a definition of "terrorism" and "terrorist". A definition of the latter is not required, and I could not accept the amendment that was tabled in Committee. The Government accepted the principle behind the amendment, however, and have brought forward a further amendment to give effect to it. As before, the definition of "terrorism" is that as given in the prevention of terrorism Acts. I beg to move.

Lord Cope of Berkeley: My Lords, I am grateful to the noble Lord for accepting at least half of the amendment moved by my colleague at an earlier stage.

Lord Molyneaux of Killead: My Lords, I congratulate the noble Lord, Lord Cope, and the noble and learned Lord, Lord Mackay of Drumadoon, on their initiative in tabling in Committee the interpretation clause which paved the way for the new clause. I respectfully commend the efforts of the Minister, who in a comparatively short time has produced a clause which removes ambiguity over the meaning of the word "terrorism".

Without this clause it would still have been possible to ignore violence for political ends, or any use of violence for the purpose of putting the public or any section of the public in fear. That is most welcome in the light of the atrocity in Ballymoney. With those offences go intimidation, the torching of homes, threats of arson, beatings, knee-cappings and the continuing targeting of individuals, particularly off-duty members of the security forces. The knock-on impact of the Minister's new clause will be the elimination of the capacity to wage war and thereby threaten elected governments if their concessions via the conveyor belt slow down. One hopes and expects that this will apply to the "subcontractors", such as those attempting and intending to, as the amendment says, put in fear the public in Northern Ireland and in London within very recent times. I join in the congratulations that have been paid to the Minister and thank him for his consideration of the matter.

On Question, amendment agreed to.

6.15 p.m.

Clause 21 [Commencement]:

Lord Tebbit moved Amendment No. 17:

Page 9, line 32, at end insert ("but no such day may be appointed (other than in respect of this section) until after the release on licence of every member of the naval, military or air forces of the Crown serving a sentence of imprisonment in respect of a conviction for murder committed in the course of their duties in Northern Ireland").

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The noble Lord said: My Lords, there is very little I can add to the case which I made on Monday of last week and which no doubt I shall make again next week. I remind the House that, although to avoid rendering the Bill hybrid the amendment does not mention Fisher and Wright, it is about those two young men. I do not think there is any doubt that there is a growing consensus inside the House and outside that those two young men should not be kept any longer in prison; least of all should they be kept in prison while terrorists are being released. The Minister was helpful in setting out some of the ways in which it is possible that they might be released. But, of course, there is at the moment no guarantee.

It may be useful to remind the House of some of the events which have occurred over this affair. On 3rd November last year, in a Written Answer, the Minister, in replying to my noble friend Lord Westbury, said of the case:

    "The Secretary of State for Northern Ireland has decided that the cases of Guardsmen Wright and Fisher should be referred back to the review board in one year's time, i.e. in October 1998, when they will have served six years in custody. No date for release has therefore yet been fixed".--[Official Report, 3/11/97; WA 276.].

The position seemed to have hardened up a little some months later, in February, when in the course of a debate in the other place the Minister of State, Mr. Ingram, told the House that, given all the available information, the Secretary of State had concluded that Fisher and Wright had not served a period sufficient to reflect the seriousness of their crime and she decided to invite the review board to consider the cases again in October 1998 when each guardsman would have served approximately six years.

Thus it rested until 3rd June, when in the course of another exchange between my right honourable friend the Leader of the Opposition and the Prime Minister, the Prime Minister said, somewhat surprisingly:

    "there was a court case which concluded on Friday 22 May; before that court case was concluded, my right hon. Friend the Secretary of State for Northern Ireland was not able to conduct her own review"

That was palpably not correct. She had conducted her own review before the court case had started.

Lord Burnham: My Lords, perhaps I may correct my noble friend on a very small point. The date of 22nd May followed a judicial review which was held some time earlier. That was the day on which the result of that review was published.

Lord Tebbit: My Lords, I am grateful to my noble friend. The Prime Minister went on to say:

    "Now that is out of the way"--

the judicial review--

    "she will do that, and do so as quickly as possible".--[Official Report, Commons, 3/6/98; col. 359].

"As quickly as possible" did not turn out to be terribly quickly. In our consideration in Committee on 6th July, the Minister said:

    "Clearly the Secretary of State's wish to look at the papers again, and her decision to start to do so today"--

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that is about five weeks after the Prime Minister said she would do it with great urgency--

    "is an indication of her desire, as it were, to reflect the views which have been expressed in this Chamber on a number of occasions".--[Official Report, 6/7/98; col. 1076.]

Five weeks does not seem very immediate to me.

So this matter drifts on. At least we know now that the Secretary of State has finally turned her attention to the matter, but nonetheless Guardsmen Fisher and Wright are still in gaol. It seems to me that it would only be appropriate if during her consideration, which we know has started, and in view of all that has been said, Fisher and Wright were at least released on bail. I am sure I shall be told that there are many technical, legal and administrative reasons why they cannot be released at this stage. I remind the House, and particularly the Minister, that it is not that long ago that terrorists were released from prison in order to assist the Government's campaign to achieve a yes vote in the referendum. If terrorists can be released from gaol for that political purpose, then there can be no conceivable reason why the same powers that the Secretary of State used to release those terrorists, temporarily, should not be used to release the guardsmen temporarily, pending the final outcome of her review of the case.

I suspect that the Secretary of State would like this matter resolved. My amendment would help her to do that. It would be effective and certain. It does not affect the terms of the agreement, although when the Minister gave way to my noble friend Lord Campbell of Alloway he was in the process of saying during Committee proceedings that the amendment would drive a coach and horses through the agreement. That is not so. It would not affect the agreement in any way whatsoever. It is merely that this Bill is a convenient vehicle for the release of the guardsmen. It would not delay the passage of the Bill. Were the Government to accept this amendment tonight or even next week, the Bill would continue on its schedule without any damage at all. We do not know the date on which the Secretary of State intends to bring this legislation into effect, but that need not be affected either. All she has to do is release the guardsmen either on bail, day release or whatever other arrangements can be made. It would be up to the Government, and no one else, to decide whether the implementation of the Act, as it will be, were to be delayed.

There is very little more I can add. I was encouraged by the way in which the House reacted to this proposal during the Committee stage. I was also encouraged to a considerable extent by the Minister's demeanour and his words on the subject. He has had something like 10 days to mull it over in company with the Secretary of State. If needs be, I am content to give him and the Secretary of State a few days more. I shall be grateful to the Minister if he can tell us what exactly the Government now have in mind for these two young men. I beg to move.

Lord Campbell of Alloway: My Lords, I believe that my noble friend misunderstands. When I opposed this amendment at Committee stage I said,

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    "Release (as proposed by this amendment) is without paragraphs 1 to 3 of page 25 of the Stormont agreement, which is not subject to negotiation. There is no concept of priority of eligibility for release either under the agreement or the paper used in negotiations".--[Official Report, 6/7/98; col. 1070.]

I referred to paragraphs 5 and 7 of the paper. That is the position which I maintain today.

The collapse of the Stormont agreement--which was overtly opposed by my noble friend for reasons which are fully understood and totally respected--is possible. It is even perhaps probable, but not inevitable, as assuredly could be the case if the Government were to accept this amendment.

Your Lordships may well believe that neither the end, the means nor the result of this amendment is well conceived. One may support the purpose of this arrangement. I call it "an arrangement" because it was not signed. In my book something that is not signed is not an agreement, but an arrangement. It is an arrangement to seek peace in the Province. Even if one objects to its provisions--and I object to some of them, which I shall come to in a moment--they are not subject to renegotiation. I support the peace process.

The end is the release of the guardsmen as soon as possible. That has been, and will continue to be, so in a manner hitherto acceptable to your Lordships on all sides of the House without hint of political contention. Questions have been asked in your Lordships' House and my noble friend referred to some of them. They have been asked for quite some time. The last Unstarred Question was debated on 23rd June. It was retrieved from limbo in "No Day Named" with the help of the Government Chief Whip, who found extra and wholly sufficient time for the debate.

Long after that Unstarred Question was tabled, information was received on 14th May which cast doubt on the rectitude of the conviction. Affidavits and documents were prepared, placed in the Library and handed to the noble Lord, Lord Dubs. In fact, only today the affidavit of Guardsman Williams, the fourth man in the patrol, was put in the Library. The noble Lord has a copy. There was also the affidavit of C.S.M. Dunn.

Your Lordships concluded that findings as to culpability, which supported conviction and which continue to thwart release, were fundamentally flawed; that there was a grave and manifest miscarriage of justice; and that these guardsmen, as my noble friend said, should be released immediately. But that could only be under the delegated remit of the Royal Prerogative of Mercy.

At Committee stage of the Bill the noble Lord, Lord Dubs, told us about a fresh review to be set up by the Secretary of State. On 20th July, which is next Monday, your Lordships will be invited to support a Motion to resolve to present an humble Address to Her Majesty to release these guardsmen in the exercise of her unfettered discretion of the prerogative of mercy. If it is carried, which is the hope, and without a Division, the prospects of immediate release could be enhanced. Indeed, the object of my noble friend's amendment would be fulfilled.

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At Committee stage it was made perfectly plain by the noble Lord, Lord Dubs, that the Government would not, could not, accept this amendment which delays implementation of the Bill, frustrates the Stormont arrangement and inhibits the peace process.

These guardsmen qualify for general release many months ahead under the Clause 3 linkage. That is a strange and somewhat indigestible anomaly. This was the linkage between those who killed on duty in aid of the civil power and those who resorted to the gun and the bomb to kill and maim, on many occasions for sectarian and politically motivated purposes. It was however part and parcel of the Stormont arrangement. I referred to the passages at the start of my speech. That has been endorsed by the electorate of Northern Ireland.

To what constructive end may your Lordships support this amendment? As matters stand, release from a mandatory life sentence in Northern Ireland as a matter of law may be granted only by the Secretary of State under a variety of mechanisms identified on both 23rd June and 6th July. I understand--I may be wrong--that the review of 6th July is under the statutory power of general release after consultation with the trial judge and the Court of Appeal, but this is months ahead. The only mechanism under which immediate release may be granted by the Secretary of State is the delegated remit of the Royal Prerogative, in truly exceptional circumstances, as the noble Lord, Lord Dubs, has fairly conceded. Release from a mandatory life sentence according to statute is a matter for the Executive, not the judiciary or the legislature, save under a criminal justice repeal Bill of general application, which this Bill assuredly is not. This amendment therefore is without the accepted province of the judiciary and the legislature under the separation of powers.

When the criminal cases review commission has investigated the matter--which will take some time because there is a backlog of work of about a year, and it has referred the matter to the Court of Appeal to challenge the rectitude of this conviction; it was the unanimous conclusion of your Lordships' House on 23rd June that there had been a miscarriage of justice--an application may be made months ahead. So much for the end.

As to the means, apart from the fact that this Bill is not a repeal Bill of general application to remove release from the Executive, the means are not well conceived because the claim to priority of release as a pre- condition to the Bill taking effect constitutes a pre-condition to the letter and spirit of the Stormont arrangement. That would inevitably delay the implementation of general release in any event. Without losing moral authority to foster the peace process, the Government simply cannot accept this pre-condition to the linkage of general release. Your Lordships may well think that it is wholly unacceptable that these guardsmen should have been taken hostage and used as pawns for such a purpose.

6.30 p.m.

Baroness Denton of Wakefield: My Lords, I do not believe that anyone in this House is unsympathetic to

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the aims of the amendment moved by noble friend Lord Tebbit, having seen the dangers that the RUC and the security forces have had to face during the past week. They have had no choice in the matter. I hope that that sympathy extends to the Minister and the Secretary of State.

My noble friend Lord Tebbit generously gave the Minister a few more days. One can imagine how much more comfortable a few more days are to noble Lords in this House than to young men who have been in prison for a considerable time and have to face further time in prison without a firm future. I am sure that the lawyers have an answer--they always do. But for me the moral issue now is whether it is right to let out terrorists while we keep in prison two men who were doing their job.

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