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Lord Dubs: My Lords, I was making a reply to that point--"as far as it was safe to do so". That is exactly the point that I was making.

6.30 p.m.

Lord Avebury: With respect, the legislation that the noble Lord, Lord Dubs, piloted through the House in the Summer Recess of 1998 did not give us that safety margin. As I pointed out at the time, it is the only time

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in the history of Parliament that criminal law has been enacted in the middle of the Summer Recess. It has never happened before. Yet your Lordships rushed that provision through the House, and we are now enacting it in permanent law.

We should think not once but several times before we insert this provision into a Bill which is going to stand the test of time, but which may test not only the ability of the courts in Northern Ireland but democracy itself. It has never been used, as the Human Rights Commission of Northern Ireland has pointed out, and the police in Northern Ireland must have good reasons for not using it in that context. If it is going to lie on the statue book as a dead letter, we are making the mistake, which Parliament should never do, of putting measures on to the statue book as a gesture when we know that they are never going to be used by the courts.

Lord Marlesford: My Lords, in relation to any offence, however heinous, wherever committed, it is surely axiomatic that conviction must depend upon evidence. I recognise that in the special circumstances of terrorism generally, and terrorism in Northern Ireland in particular, it may perhaps be necessary to change the rules relating to the obtaining of evidence and how it is obtained, and to change the procedures by which the sources of evidence are protected. I recognise that. What I cannot find myself persuaded to accept is that there should be a different level of quality of evidence.

I sympathise with the noble Lord, Lord Goodhart. The essence of his point is that we are seeking to write into legislation something which proscribes a different quality of evidence which would or might lead to conviction.

Lord Molyneaux of Killead : My Lords, I intervene very briefly, not to contradict or differ from what the noble Lord has just said, but for the benefit of those of your Lordships who have a fixation about the reliability of RUC officers. The suggestion is that, because they have been murdered in their hundreds, they might have a built-in resistance or enmity towards certain types of criminal.

I realise that the noble and learned Lord has enough on his plate at present, but perhaps he can give some thought in the future to whether it would be more acceptable if the powers that be invited the Deputy Director of MI6 to give the evidence rather than an RUC officer? It would possibly be even more detailed than anything that an RUC officer might produce. To those who may say that MI6 is not supposed to operate within the United Kingdom, I say that anyone who believes that will believe anything.

Lord Hylton: My Lords, I should like to say how much I agree with the noble Lords, Lord Avebury and Lord Marlesford.

Baroness Park of Monmouth: My Lords, I very strongly support what has been said by the noble Lord, Lord Dubs. I recognise the difficulties. However, it

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seems to me that the people of Omagh--and by extension the people of Northern Ireland--need to have justice done and to see it done. We know that at present the RUC has decided that, were it to proceed as the Act of 1998 allows, it would indeed be taken to the Court of Human Rights and overruled.

Nevertheless, given the provision in this draft legislation, I cannot understand why it is improper because it would not be only on the basis of the evidence of an officer. I cannot understand why the existence of evidence that someone is a terrorist, who was in a place at the right time, should not be brought to court. It just may give courage to witnesses to come forward. They have not come forward, but they have not been given an opportunity to do so. In my opinion, it would be wrong to leave any stone unturned which would enable those people to be brought to justice. Given the provision of the safeguards in the legislation, I cannot see how that could be regarded as improper. It is more likely to secure justice than doing nothing at all.

Lord Desai: My Lords, I find myself in a dilemma. I have heard what has been said by my noble friend Lord Dubs, for which I have a lot of sympathy. I have also heard what the noble Lord, Lord Goodhart, has said. It may be that a very stringent law was necessary to catch the killers of Omagh. Nobody has yet been caught. That may be because sufficient evidence has not been obtained, for which we shall have to wait patiently, or because the police have decided that this particular piece of legislation which was passed in 1998 is not of much help either way, and therefore they have not invoked the provisions of this particular clause. I should like to know which of the two is the real explanation.

If it is an ineffective but stringent piece of legislation which pushes democracy beyond the limits that we would like to set, we should not have it. If it is both ineffective and creates a serious violation of human rights, there is greater reason for not having it. It would therefore be very helpful to know whether this will be an effective weapon in the hands of the authorities and whether there is any evidence for this.

Lord Falconer of Thoroton: My Lords, my noble friend Lord Dubs described the effect of the atrocity at Omagh. It is right that the Government should respond to that atrocity in a way that is proportionate and appropriate. We believed at the time that this response was proportionate and appropriate, and we continue to believe that that is the position. Indeed we believe that it would be wrong to change the provisions now.

In the course of this short debate, these provisions have received considerable support from all sides of the House. As I understand it, the argument for saying that they should be withdrawn is threefold. First, it is said that the provisions go too far. They go, as the noble Lord, Lord Goodhart, put it, "beyond the limits of the law". Secondly, they infringe the Human Rights Convention and/or the Civil and Political Declaration by the UN, referred to in the Amnesty International

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Report. Thirdly--and perhaps contradictory to the first two points--they will in any event be of no avail at any stage.

With regard to the first point that it goes too far, I should point out that the effect of the provision contained in Clause 108 is that an officer above the rank of superintendent can give evidence of someone's membership of a proscribed organisation. That officer can be cross-examined on the evidence that he gives. The effect of the clause is only to make the evidence admissible; it is entirely for the judge to determine what weight to attach to that evidence. The weight that he attaches to it will, presumably, depend upon such answers as the officer gives in the course of cross-examination. Like everyone in this House, I am second to none in my admiration for the Northern Irish judiciary. I am quite sure that they would be as good as any judiciary in the world in ensuring that the provision is properly applied.

Secondly, that evidence alone cannot be the basis of a commitment for trial or a conviction: it must be supported by other evidence. Thirdly, in relation to the combination of silence, on the one hand, and the evidence on the other, this could, on the face of it, provide a conviction. However, before any adverse inference in relation to silence can be drawn, the defendant must have had the opportunity to take the advice of a solicitor. Again, the evidence of the officer and the evidence of silence do not compel a conviction. It is entirely a matter for the court to determine what the right conclusion is in relation to such cases. I do not think that the provision goes too far. I believe that there are appropriate safeguards in place. If one looks at the matter from a standing start, as it were, it seems to be an entirely appropriate response.

Does it infringe the convention or the declaration? Those two arguments have been advanced in relation to why it infringes the convention or the declaration. First, it is hearsay and, therefore, there must be a proper opportunity to test the evidence. That opportunity is there from the legal system that permits appropriate, proper and testing cross-examination of the evidence. Secondly, it has been said--

Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for giving way. Surely the police officer concerned cannot be compelled, for security reasons, to answer questions in cross-examination that might disclose the sources of his opinion. Will that not make cross-examination an ineffective defence? Alternatively, is it the intention that the police officer should be compelled to disclose the source of his information?

Lord Falconer of Thoroton: No, my Lords. I should imagine that the usual rules in relation to public interest immunity would not apply in that respect. However, that does not affect my basic point. The case must be made out. If the case is not made out as a result of a refusal to answer questions on perfectly legitimate grounds, no doubt the court will so find. But, in each case, it will depend on whether or not the evidence is sufficient to found a conviction.

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I return to the position under the convention and under the declaration. Is it possible to test the evidence? Yes it is, because it is subject to cross-examination under our system, which plainly complies in principle with Article 6. The other point made by the noble Lord, Lord Lester of Herne Hill, was that a person should not be convicted solely and decisively on hearsay evidence. Safeguards have been built in to the provision in that respect. The legislation specifically says that a person cannot be convicted on that evidence alone. I believe that the position under the convention is dealt with by those points. It is a perfectly robust position for the Government to take.


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