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Lord Higgins: In the light of that answer, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 9 and 10 not moved.]

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Baroness Amos: I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee stage does not begin again before 8.15 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Prevention of Terrorism (Temporary Provisions) Act 1989 (Revival of Parts IVA and IVB) Order 1999

7.34 p.m.

The Minister of State, Home Office (Lord Williams of Mostyn) rose to move, That the draft order laid before the House on 23rd June be approved.

The noble Lord said: My Lords, your Lordships will know that with permission I repeated yesterday a Statement made by the Secretary of State for the Home Office in another place. The burden of that Statement was that, due to an error in the drafting of the 1998 and 1999 continuance orders, Parts IVA and IVB of the Prevention of Terrorism (Temporary Provisions) Act 1989 had not been in force since 22nd March 1998. As promised, I return seeking the revival of those provisions. I am grateful to the noble Lords, Lord Cope of Berkeley and Lord Thomas of Gresford, for their assistance in having these matters very promptly brought back before your Lordships.

I said yesterday that it was our intention and understanding--and I have no doubt that of the House--that Sections 16A, B, C and D of the PTA should continue to be available following our debates. In repeating the Statement yesterday, I indicated that that was not so. The error was discovered by an academic writer in Criminal Law Week; it was brought to the attention of the Home Secretary on 26th May; we had advice on the argument in the article from the Law Officers which came to the Home Office on 17th June; thereafter we had detailed advice from officials on 18th June; and the draft order was laid yesterday, 23rd June.

Before I go, quite shortly, to these relatively simple provisions, I should correct one point from the repeated Statement of yesterday. The information we had yesterday was that six persons had been charged with offences under Section 16A and B; in fact the total was seven. The seventh related to international terrorism and the matter was dropped before it came to court. It is only right that I should correct that error. It remains the case, therefore, that there have been no convictions so far under Section 16A or B.

I perhaps should make one other point of clarification. In repeating the Statement I referred to an individual who had been in custody for some months and that we could expect to receive a claim for compensation. In one other of the total of seven cases, the alleged offence was committed after 22nd March and there were some months in custody; therefore there may be a compensation claim.

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Quite shortly, Section 16A makes it unlawful to possess articles in circumstances which give rise to suspicion that they are intended for terrorist purposes. It is a defence to prove that the articles concerned were not held for terrorist purposes. Section 16B makes it an offence to collect or record information which is likely to be of use to terrorists without lawful authority or reasonable excuse.

It is true that these provisions have been rarely used, as I indicated yesterday in answer to particular questions from Members of the House. Experience of the equivalent provisions in Northern Ireland is positive. Both the noble and learned Lord, Lord Lloyd of Berwick, in his inquiry into legislation against terrorism and Mr John Rowe QC in his annual reports on the operation of the PTA have commented on the usefulness of the provisions and recommend that they should be retained.

Your Lordships will know from what was said yesterday that there is a matter going through the courts; I understand that it will be determined on 19th July by the Appellate Committee of your Lordships' House in the case of "K" and others. I simply mention that as part of the narrative; we spent some time discussing that matter yesterday.

I turn now to Sections 16C and D. Section 16C gives police, subject to authorisation at superintendent level or above, the power to cordon off areas and to restrict access in connection with terrorist investigations; and creates offences if police instructions are not obeyed. As I said yesterday, central records are not kept. The powers have been relatively frequently used by the Metropolitan Police Force, which has used them 86 times since March 1998. As I indicated yesterday, there are certain common law powers, but Section 16 provides a firm statutory basis for police action.

Section 16D gives the police the power to impose temporary parking restrictions on roads in response to a general threat to vulnerable targets such as government buildings or financial centres. There are some common law powers but the provision provides the reassurance of statutory underpinning. As with Section 16C, both the noble and learned Lord, Lord Lloyd, and John Rowe QC thought that the powers are valuable and should be retained.

I hope that that is a sufficient summary of the present position. Everyone who had to do with the passage of the continuance orders thought that the drafting brought about the legal consequence that Section 16A, Section 16B, Section 16C and Section 16D had legal statutory effect. Our advice being that they did not, we thought that it was our duty to notify both Houses of Parliament as soon as possible and, following the indications given by the noble Lords to which I referred with gratitude earlier, this has been the earliest opportunity. I commend the order to the House.

Moved, That the draft order laid before the House on 23rd June be approved.--(Lord Williams of Mostyn.)

Lord Cope of Berkeley: My Lords, as will be apparent to those who were present yesterday or who read what I said yesterday on this matter, I welcome the

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prompt way in which the Government have brought this order before the House. It is right to put these offences back on the statute book following the unfortunate way in which they fell off it, as it were, by accident. We have all supported these offences being on the statute book. We thought at the time that we were keeping them on the statute book--everyone did--and they are not, as far as I know, controversial. I welcome the order and the promptness with which it has been brought before the House.

The only matter which still concerns me is why it took a month between the discovery of the mistake and the Statement that was made and the order that was laid yesterday. I realise that the Government would be particularly keen to give attention to the drafting of the order in case there should be some further error in the matter. But the point, although obscure in the sense that it was tucked away in the law, is not a complicated one as far as I can detect. It is a relatively simple one. I am not a lawyer, but it seems that way to me.

The Minister has just explained in a little more detail what happened during the month. Evidently, the Law Officers took from 26th May to 17th June to decide what advice to give to the Home Secretary. So it would seem that three weeks or more were taken up by the Law Officers in considering the case. That is not of great importance now. The important point is that we are now putting the matter right. But I do not think that it reflects very well on the urgency with which the Government tackled the matter.

As the Minister said, there were references yesterday, both in the Statement and in the exchanges which followed, to the particular case involving the sections. It did not seem to me yesterday, and it does not seem to me in considering the matter since, that those are precisely relevant to what we are doing today. Thanks to modern devices, I was listening to some exchanges in another place on this order a few minutes ago. However, I do not think it is either necessary or helpful to pursue that matter today. We may or may not have to return to it once the Appellate Committee of your Lordships' House has come to its view. However, that is a matter for another day.

Lord Thomas of Gresford: My Lords, I apologise for introducing a sour note into this debate, but yesterday I raised the propriety of that part of the Statement which said:

    "The Government believe these provisions, in their current form, are not incompatible with the ECHR and are an important part of the armoury in the fight against terrorism. It is entirely consistent with this position to seek the early revival of these provisions now that it has come to light that they are not currently in force. In adopting this course of action the Government are not attempting to pre-empt or in any way influence the outcome of the appeal. We shall await their Lordships' judgment with interest".--[Official Report, 23/6/99; col. 954.]

When I raised the propriety of making that kind of comment, my view was based not on knowledge of what had happened, but on principle. I was a little taken aback by the vigour of the Minister's reply on this issue. He

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was not his usual urbane self. At col. 956 of the Official Report, he said:

    "The Home Secretary takes the view ... that in speaking to Parliament we ought to be as candid, as open and as helpful as possible". The method of his reply aroused my curiosity and I made further investigations. I discovered that what the Home Secretary failed to say to Parliament in the Statement repeated by the noble Lord was that the view being expressed as to compatibility with the European Convention was contrary to the law as at present interpreted by the Lord Chief Justice and two other judges in the Divisional Court in the case to which reference was made--"K". So it is not peripheral. I regret to disagree with the noble Lord, Lord Cope, on this matter. I had assumed that the Statement that was confidently made yesterday represented the present position and that it was the applicants in that case who were mounting a challenge to the Government, who had obtained a successful judgment.

The passing of this order does not affect the judgment of the Divisional Court. The decision of that court was that the DPP had continued the prosecution of the applicants in the mistaken belief that these provisions of the Prevention of Terrorism Act did not violate the European Convention and had thus made an error of law. So the view of the courts as presently expressed is that there is an error of law when prosecutions are brought under the Act. I think that there is a vast difference between this House being asked to approve an order which is in accord with the judgment of the Divisional Court and being asked to do so when, as at present, the legislation which is being continued is held to be contrary to that view and is determined to be in violation of the European Convention on Human Rights. I do not find the Home Secretary's Statement to be candid, open or helpful. Indeed, I feel that I was misled yesterday and that the House was misled.

It is central to the Human Rights Act that Parliament be made aware of the extent of compliance with the convention when it debates legislation. That is why we have Explanatory Notes at the beginning of proceedings on a Bill and a statement of compliance on the face of the Bill. No doubt that is the reason for what I thought yesterday to be an extraneous piece of information contained in the Statement.

I do not think it is helpful to discuss the decision of the Divisional Court except to point out that it is in exact accord with the views expressed by the noble Lord, Lord Williams of Mostyn, when in opposition. It was his view, he then said, that the offences were far too harsh and draconian and that they would bring the law into disrepute. When the measures were first introduced, he said that they would bring us into serious conflict with the European Convention on Human Rights. The noble Lord's view has been upheld by the Lord Chief Justice and other judges. The noble Lord said:

    "If we condemn our citizens to the possibility of 10 years' imprisonment on the basis of reasonable suspicion...we are in serious danger of giving terrorism a victory that it would not otherwise achieve".--[Official Report, 7/6/94; col. 1208.]

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    That view was expressed not only by the noble Lord, but also by Mr John Rowe QC, who identified Section 16A as being potentially in breach of Article 6(2) of the European Convention.

The argument about the presumption of possession under Section 16A(4) of articles giving rise to a "reasonable suspicion" that the article is in his possession for a purpose connected with the position of terrorism is very reminiscent of the first case which came to the Privy Council from Hong Kong--the case of Lee Kwong Kut--in which I was personally involved. The point is that the test of "reasonable suspicion" in that Hong Kong legislation, and indeed in this legislation, is purely objective. A person can be found guilty and sentenced to up to 10 years in prison even if he is actually unaware of the true position. The presumption of innocence is violated.

As for Section 16B, the category of information that is encompassed is impossibly wide. I quote:

    "a simple map or a simple list of addresses and telephone numbers would fall into this category ... The real danger will be that persons who have information recorded or collected or possessed by them will be charged and harassed unnecessarily".--[Official Report, 7/6/94; col. 1209.] Those are the words of the noble Lord, Lord Williams of Mostyn. I commend him on his correct interpretation of the law as upheld by the Divisional Court.

This is a serious matter. It is positively unconstitutional to legislate, even with secondary legislation of this kind, which as I said yesterday does not make a great deal of difference so far as the order is concerned. The intention of Parliament was perfectly plain in the previous order that was passed. It is unconstitutional to legislate on the Government's assurance that these offences are compatible with the convention when the courts have ruled precisely to the contrary. Unfortunately, it gives no confidence that, when future legislation comes forward, with the Government giving a certificate that it complies with the European Convention, that certificate means anything.

It is for that reason that noble Lords see in me a complete volte-face from the position that I took yesterday; namely, that the quicker we got what I regarded as a technical and mechanical matter out of the way, the better. I do not believe that that is so. On further examination, there are important issues. This legislation should not have been brought forward until the Judicial Committee had--if it does so; and that is a matter of great argument--actually set aside the decision of the Divisional Court.

There are ample powers of protection in the meanwhile, as we discussed yesterday. The ordinary law of criminal conspiracy is sufficient to enable the prosecution of individuals who possess information with the intention of using it to carry out a terrorist attack. The only point is that the prosecution have to prove that offence beyond reasonable doubt, whereas under this legislation the burden of proof is entirely reversed.

Finally, I am reminded of the wise words that were spoken by my noble friend Lord Wigoder in 1974, when the Prevention of Terrorism Bill was introduced into the

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House by another of my noble friends, Lord Harris of Greenwich, who was then on the Labour Benches. My noble friend said:

    "all of us who treasure our civil liberties--and that means every Member of your Lordships' House--is bound to want to consider with the greatest care emergency legislation which may have been hastily conceived, hurriedly drafted and passed into law without careful detailed examination in your Lordships' House".--[Official Report, 28/11/74; col. 1517.] That was a very wise statement. It is as applicable today as it was then. I should be grateful if the Minister could deal with what I regard as the unconstitutional aspects of the order.

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