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Lord Cope of Berkeley: When I looked at Amendment No. 138 before the debate, it did not seem to me that the effect was very different. The effect of Clause 54(5) is to provide a defence for anyone who has a legitimate use for instruction or training and so on, other than for the purposes of terrorism. But listening to the noble Lord, Lord Goodhart, I thought that his drafting was mildly to be preferred in having the full offence rather than having a very wide offence and then providing a defence for it.
But I take a different view of the amendments to Clauses 57 and 58 dealt with by the noble Lords, Lord Goodhart and Lord Beaumont of Whitley. It is difficult to express a view on this without referring back to my own experience, because that colours everything that I think on this matter.
The experience I have of this matter leads me to the view that it is extremely difficult for the police in Northern Ireland to prove terrorist offences. Perfectly ordinary articles can be used as absolutely deadly weapons. There are many examples, one of which is the coffee-jar bomb. A large number of our fellow citizens have been killed by coffee-jar bombs.
At the same time, one of the features of organised terrorism is that the people involved are extremely disciplined. They learn carefully from any conviction which is achieved. They review it extremely carefully afterwards and then send out instructions to all their people in order to avoid anybody else being convicted in the same way.
In those circumstances, in my view, the law has necessarily had to become more draconian. I accept that these provisions are more draconian than ideally we should wish. But in facing terrorism, we are not in an ideal situation.
As I said in relation to an earlier amendment, we all hope that this long phase of terrorism in Northern Ireland is coming to an end. However, it has not yet come to an end; we are not legislating on the basis that it is over and nor should we. We hope that we shall arrive at that point before long, but we are not there yet, and that is not the basis of this legislation.
In looking at the record of Northern Ireland one sees an appallingly low record of convictions in comparison with the number of ghastly offences that have taken place. The reason is the expertise of the terrorist in avoiding conviction, often due to the
Lord Bassam of Brighton : I am grateful to the noble Lord, Lord Cope, for his last contribution. He speaks on this subject with the kind of wisdom that I do not have, as he served honourably in the Northern Ireland Office. I listened carefully to what he had to say on all these matters.
I am also grateful to the other Members of the Committee who contributed to the debate on what is a difficult subject. I am a little worried about the pockets of the noble Lord, Lord Marlesford, and the explosive devices that they have contained in the past. I am sure that they did not have a host of other ghastly things in them as well, as boys' pockets tend to.
I am particularly grateful to the missing noble and learned Lord, Lord Lester of Herne Hill, who gave me advance warning of his concerns when we discussed these aspects of the Bill some two months ago. That was a helpful and instructive discussion.
It may help if I set out the position of the Government in this area. As your Lordships know, the Government's view is that the Bill, as introduced, is already compatible with the European Convention on Human Rights. However we accept, especially in the light of the Kebilene case, that it would be helpful to make express provision for the burdens placed on the defendant in the Kebilene provisions to be evidential rather than persuasive or legal burdens.
As can be seen from Amendment No. 176A, this new provision is to apply not only to the Kebilene offence in Clause 57, but also to the similar provisions in Clauses 39(5)(a), 54, 58, 77 and 103, together with their equivalents in the "transitional EPA" which are kept alive under Schedule 1 to the Bill.
I want to explain how we have arrived at the list of provisions in subsection (5) of Amendment No. 176A. Those are provisions where to put a persuasive burden on the accused would amount, or come close, to making him disprove an essential element of the case.
I should also say a word about all the other so-called "reverse burdens" in the Bill--those not listed in subsection (5) of the amendment. It is, of course, for the courts to interpret the statute, but the Government's view is that it is right for the other burdens that the Bill places on defendants to be persuasive burdens.
I must stress that these amendments are not intended to alter the effect of the provisions in question. They merely set out on the face of the Bill what we believe would in any case have been the effect of the provisions as originally drafted. Nevertheless, I hope that your Lordships will welcome this clarification.
I now turn to the amendments that have been tabled by other noble Lords. Perhaps I may begin with Amendments Nos. 138 to 140, tabled by the noble Lord, Lord Goodhart, and his noble friends. They would remove completely the "reverse burden" construction of the offences in Clause 54. These offences are based on those in Section 34 of the Northern Ireland (Emergency Provisions) Act and are modelled closely on that section. The noble Lord made a number of respectable points in going over the issues that the amendments cover. The Government believe that, while it is not necessary to restructure the provision as fundamentally as Amendments Nos. 138 to 140 propose, we feel that, by including Clause 54 among the offences dealt with in Amendment No. 176A, we have struck the right balance.
Having reflected on the comments made by the noble Lord, Lord Goodhart, and the careful arguments he advanced, I shall give an undertaking this evening to look again at Clause 54 and give it more detailed consideration. I make no commitments or promises in saying that, but I shall certainly take away the points raised by the noble Lord and give them further thought.
I turn now to Clause 57. Amendments Nos. 146 and 159, tabled by the noble Lord, Lord Goodhart, would, we hope, have a similar effect to the Government's in terms of the burdens of proof in Clauses 57(2) and 58. So, too, would the amendments tabled by the noble Lord, Lord Beaumont. However, the Government's approach is simpler in so far as it sets out clearly on the face of the Bill that an evidential burden is intended. Amendment No. 176A is also more comprehensive in that it deals with other similar burdens elsewhere in the Bill.
Finally, Amendment No. 151 would dispense completely with Clause 57(3), while the amendment of the noble Lord, Lord Beaumont--Amendment No. 152--proposes deleting only Clause 57(3)(a). The Government cannot accept those amendments. We believe that all of subsection (3) is essential to the effective operation of the provision. With that explanation, I trust that the noble Lord will not press his amendment.
Before concluding, I must say a word about government Amendment No. 141 to Clause 54, which is also part of this group. This amendment gives third parties the right to be heard before any forfeiture is made under Clause 54, and ensures property is not forfeited until the end of any appeal process. This additional protection for individuals is in line with our approach in Clauses 23 and 58. I trust that the Committee will welcome it.
Having made my points on the Bill as now drafted, I am happy to acknowledge that most of them will be dealt with if Amendment No. 176A is incorporated into the Bill. It represents a substantial step forward and I am particularly grateful to the Minister for agreeing to look specifically at the problems of Clause 54, on which I was pleased to have not only the wholehearted support of the noble Lord, Lord Marlesford, but also the qualified support of the noble Lord, Lord Cope. In those circumstances I am happy not to press my amendment. Frankly, if things go according to plan, it is unlikely that I shall wish to bring any of these amendments back at Report stage. I beg leave to withdraw the amendment.
("( ) Before making an order under subsection (7) a court must give an opportunity to be heard to any person, other than the convicted person, who claims to be the owner of or otherwise interested in anything which can be forfeited under that subsection.
( ) An order under subsection (7) shall not come into force until there is no further possibility of it being varied, or set aside, on appeal (disregarding any power of a court to grant leave to appeal out of time).").