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Lord Glentoran moved Amendment No. 22:


The noble Lord said: My Lords, Amendment No. 22 is part of the legislation on specified organisations within Part VII. Again, it seems to me that Clause 107(a) and (b) sets up three classes of terrorist. One is either a terrorist under Section 3(8) of the Northern Ireland (Sentences) Act 1998 or a terrorist proscribed for the purposes of this Act in Schedule 2 or a terrorist who comes under both those provisions because Clause 107 states that an organisation is a terrorist organisation if,

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    "it is specified under section 3(8) of the Northern Ireland (Sentences) Act 1998, and (b) it is, or forms part of, an organisation which is proscribed for the purposes of this Act".

I can see absolutely no logic in that wording. As I have said several times today, a terrorist is a terrorist is a terrorist; a terrorist organisation is a terrorist organisation is a terrorist organisation. All are a severe threat to this kingdom and the people within it and all should be treated equally severely. We should legislate to give the authorities the necessary powers to protect us.

In my opinion, Clause 107 would be much more sensible, reasonable and logical if it read that,


    "it is specified under section 3(8) of the Northern Ireland (Sentences) Act 1998, or ... it is, or forms part of, an organisation which is proscribed for the purposes of this Act".

That means that the organisation is either specified or proscribed but either way it is a terrorist organisation and should be treated as such. I beg to move.

Lord Falconer of Thoroton: My Lords, the effect of this amendment is to seek to apply the post-Omagh provisions to all terrorist organisations proscribed in Schedule 2.

As I made clear in relation to the previous amendment, the Government's view in 1998 was that the post-Omagh provisions pushed the law to its limits but that it was appropriate to do so because of the consequences of not having such provisions in relation to those persons who still attacked the peace process.

We remain of that view. We believe that the effect of the post-Omagh provisions is that they must be targeted appropriately, and they are at the moment. We do not believe that it would be a positive step at this stage to seek to bring within their scope those organisations which are maintaining the ceasefire. In the light of those comments, I hope that the noble Lord will not press the amendment.

Lord Glentoran: My Lords, I thank the noble and learned Lord for that explanation which, he rightly says, he gave earlier.

I have much sympathy with the noble Lord, Lord Lester, in relation to complex burdens on courts, the risk of unfair trials and miscarriages of justice, I have no sympathy whatever--and I do not think they deserve our sympathy--with terrorists or would-be terrorists. It is wrong to set up two classes of terrorism. I believe that the Government are making a serious mistake in treating the Omagh legislation as something very special which took place after an extremely emotional event.

We are looking to the future which we can see. I hate to say that it is possible that there could be worse atrocities. There could be knowledge pending such an atrocity when we should like to use the post-Omagh legislative powers.

I believe that this Bill would be a better Bill had Amendments Nos. 20 and 21 been accepted and had the scope of this clause been widened. However, it has been made quite clear today that that is not the will of the House. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

Clause 108 [Evidence]:

Lord Goodhart moved Amendment No. 23:


    Leave out Clause 108.

The noble Lord said: My Lords, I hope to be fairly brief because this amendment was debated at some length in Committee. However, it is an amendment of some importance.

This is another of the post-Omagh provisions. It is a provision which has pushed the law not only up to the limits but, in this case, beyond them.

In speaking to the previous amendment, the noble Lord, Lord Glentoran, said that he had no sympathy for terrorists. That is a statement with which we--indeed, I believe I speak for all noble Lords on these Benches--would absolutely concur. We have no sympathy for terrorists.

At the same time we recognise that in defeating terrorism we do not and should not allow ourselves access to the weapons of the terrorists themselves. In the fight against terrorism, it is absolutely essential to observe the rule of law.

We are concerned that Clause 108 does not observe the rule of law. The problem is that it treats the opinion of a police officer as evidence. The opinion of a police officer is not and cannot be evidence. He can give evidence as to the grounds on which he holds that opinion but the opinion as to whether the accused is or is not guilty of the offence with which he is charged--in this case, membership of a terrorist organisation--is a matter which is for the court to decide and not for the policeman.

Evidence of opinion is permissible in our courts only in the case of expert witnesses. The police officer is not an expert. This clause was introduced in the immediate aftermath of Omagh. It was a clause which did not receive the attention that it deserved. It was considered in surroundings of high emotion and at short notice when legislation was rushed through your Lordships' House in a couple of days.

The only justification for this clause is that it is necessary in order to bring the law of the United Kingdom, as in force in Northern Ireland, into line with the law in the Republic of Ireland where a legal provision of this kind has been in force for some years. Indeed, as I understand it, some convictions have been obtained under it.

We do not think that that is sufficient reason for departing from the longstanding traditions of British justice, which say that the decision on an issue of this kind is for the jury alone, or in the case of a Diplock court in Northern Ireland, for the judge alone. Furthermore, we believe that not only is this clause contrary to the principles and traditions of British justice, let alone the rules of the European Convention; it is also unlikely ever to have effect.

I am sorry that the noble and learned Lord, Lord Lloyd of Berwick, is unable to be here today. He spoke very effectively on this subject, both at Second

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Reading and in Committee. Perhaps I may refer to something he said. His knowledge of the judiciary in Northern Ireland is far greater than mine. He said:


    "No judge in Northern Ireland--I am lucky enough to know most, if not all, of them--would take account of the opinion of a police officer, however senior, as to whether an accused was a member of a specified organisation unless he could back up that opinion with some evidence. Without evidence it is mere opinion and mere opinion is worthless in a court of law except when it is given on expert grounds".--[Official Report, 6/6/00; col.1080.]

The view of the noble and learned Lord was that this clause would be wholly ineffective because no court would convict on the basis of the evidence of a police officer. I recognise that the clause provides that there can be no conviction solely on the basis of that evidence. However, it is clear that, if the other evidence is insufficient on its own to convict, no court would convict by adding the opinion of the police officer to that evidence.

The evidence on which the police officer bases his opinion is, no doubt, evidence which is admissible in the case. However, what will happen, unquestionably, is that the first question to be asked of the police officer by counsel for the accused is, "What is the evidence upon which your opinion is based?" The police officer may possibly say what that evidence is, in which case the question will be asked, "Why are not the witnesses brought who could give that evidence?"

What is much more likely is that for reasons of preserving the anonymity of informers or otherwise for the protection of security, the police officer will say, "I am not prepared to state the evidence on which my opinion is based". In that case it seems to me to be inevitable that the court will say, "We are not prepared to place any weight on this evidence". In those circumstances it seems to me that this clause is both wrong in principle and unlikely ever to produce the kind of results that the Government intended when the clause was introduced. I beg to move.

Lord Cope of Berkeley: My Lords, I had thought that I might leave it to the Government to defend the inclusion of this clause in their Bill, which I presume they will do in a moment. However, I should like to respond to one or two of the points made by the noble Lord in moving the amendment.

The noble Lord rightly said that this provision has been in force in the Republic of Ireland for some time and has led to some convictions. I understand that that is the case. I sometimes find it difficult to explain to the Republic why in Northern Ireland, in some respects, including this, we have weaker laws against terrorism than they do. In one sense we have the same problem; we are dealing with the same terrorists. But obviously it is a greater problem because the terrorists are much more active in Northern Ireland than in the Republic.

The noble Lord, Lord Goodhart, also stated that the decision should be one for the court, with which I agree, and would remain one for the court. However, the nub of the reason for my intervention is that the noble Lord said that a policeman is not an expert. I realise that he was speaking as a lawyer and expressing a technical view of who is an expert in a court and may

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give an opinion. It is my view that in Northern Ireland the police are the real experts on terrorism and on who are the terrorists. This applies only to Northern Ireland. It is the police who have been so severely threatened for such a long time. It is they who have studied the terrorists most carefully.

6.15 p.m.

Lord Goodhart : My Lords, I am grateful to the noble Lord, Lord Cope, for giving way. Perhaps he would accept that this was not so much my view as that of the noble and learned Lord, Lord Lloyd of Berwick. Perhaps he would also accept that the police are, in a sense, experts on terrorism in Northern Ireland. However, they are not experts in the legal sense. They are not experts on the subject of whether Mr X or Ms Y is or is not personally a terrorist. That is not an expert question in terms of the law.


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