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Lord Lester of Herne Hill: My Lords, I should point out that there is no difference between the covenant and the convention, so we can forget about the covenant. I shall concentrate on the convention. Does the noble and learned Lord agree that the principle of equality of arms means that no witness must have a decisive weight--an unfair advantage--in the course of a criminal trial, or, for that matter, of a civil trial? If we have a position where opinion evidence (which is hearsay) given by a police officer could be tested by cross-examination ineffectually because he cannot be compelled to disclose his sources for security reasons, that would run the risk of rendering the trial one in which there is inequality of arms and, therefore, unfairness. If that is so, does the noble and learned Lord agree that a judge would have no alternative but to find that the prosecution case had not been made out? It means that the extreme nature of the provision could lead to an ineffectual result. Therefore, there is no contradiction in saying that this is extreme and, for that reason, ineffective.

Lord Falconer of Thoroton: My Lords, that takes us back to the essential point: it will depend upon what answers the officer gives in cross-examination. This would certainly be a Diplock trial and, therefore, the judge would then have to proceed on the basis of that evidence. He would have to ask himself, "Is there enough here which makes it possible for me to conclude that I should convict the defendant beyond reasonable doubt?". If there is insufficient material available to reach such a conclusion, I have no doubt that the Northern Irish judiciary would reach that conclusion.

The final point made by the noble Lord was that this provision will be of no avail because it will never be used. It is very difficult for us to put together all the possible circumstances in which a charge might be brought. There may well be cases where this provision, and the one regarding silence, would be of value to the prosecuting authorities in Northern Ireland. If there is a realistic chance that it could be of value to the prosecuting authorities, then, both for the reason of its effectiveness and also for the reason given by the noble Baroness, Lady Park, it should be in the armoury of the criminal justice authorities in Northern Ireland. Therefore, the reasons advanced by noble Lords do not hold water. We believe that the provision should

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stay. In the light of my remarks, I very much hope that the noble Lord will be minded to withdraw his amendment.

6.45 p.m.

Lord Goodhart: My Lords, again, I obviously regret that the noble and learned Lord has been unable to offer any movement on the part of the Government in the direction required. Before I deal briefly with the Minister's response, I should like to comment on the remarks made by the noble Lord, Lord Dubs. I believe that everyone in the House has the highest admiration for the work carried out by the noble Lord, Lord Dubs, in Northern Ireland. Therefore, it gives me no pleasure to have to disagree with him on this issue.

However, there is a problem here and one which was illustrated by the noble Lord's remarks. He talked about the fact that there have been terrorist outrages in Northern Ireland where the police have known who committed them but have not had the evidence that would lead to a conviction. Nothing in this amendment would affect that position as regards conviction for the commission of an outrage, because Clause 108 applies solely to the one offence of membership of a terrorist organisation. More often than by anything else, miscarriages of justice are perhaps caused by the very cases where the police think they know who committed the offence, but where they do not have the evidence to prove it.

In the general principle, it is plain that there is no case to justify extending the ability of the police to give evidence as to who committed an offence simply as a matter of opinion--or to state something as a matter of their opinion--when that opinion is not based on evidence that will stand up in court. Therefore, I do not think that the argument put forward by the noble Lord could justify the provisions of Clause 108.

I turn now to the defence of the noble and learned Lord of Clause 108. The reference to PII is really the nub of the matter. In a sense, the purpose of Clause 108 is to get around the problem of public interest immunity indirectly by giving power to bring in evidence through a police officer's opinion which the Government could not bring directly to court because they are not prepared to compromise their sources. I do not think that this is a legitimate way of handling a matter of this kind.

I am not happy with the continuation of Clause 108 in this Bill. Nevertheless, despite the fact that we have received support from several Members of your Lordships' House who do not sit on our Benches, it is clear that both the Government Front Bench and the Conservative Front Bench would oppose any attempt to remove Clause 108 from the Bill. Any attempt to do so would therefore clearly be heavily defeated. Even so, I would be tempted to press the amendment were it not for the fact that I am convinced that for the reasons given by the noble and learned Lord, Lord Lloyd of Berwick, on previous occasions, this is a clause which in practice is most unlikely to be used. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 113 [Transitional provisions]:

Lord Bach moved Amendment No. 24:


    Page 54, line 9, at end insert--


("( ) Paragraph 18A of Schedule 9 shall have effect only in relation to an offence alleged to have been committed after the coming into force of that Schedule.").

The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Clause 117 [Consent to prosecution]:

[Amendments Nos. 25 and 26 not moved.]

Lord Bach moved Amendment No. 27:


    Leave out Clause 117 and insert the following new clause--

CONSENT TO PROSECUTION

(" .--(1) This section applies to an offence under any provision of this Act other than an offence under--
(a) section 36,
(b) section 51,
(c) paragraph 18 of Schedule 7,
(d) paragraph 12 of Schedule 12, or
(e) Schedule 13.
(2) Proceedings for an offence to which this section applies--
(a) shall not be instituted in England and Wales without the consent of the Director of Public Prosecutions, and
(b) shall not be instituted in Northern Ireland without the consent of the Director of Public Prosecutions for Northern Ireland.
(3) Where it appears to the Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland that an offence to which this section applies is committed for a purpose connected with the affairs of a country other than the United Kingdom--
(a) subsection (2) shall not apply, and
(b) proceedings for the offence shall not be instituted without the consent of the Attorney General or the Attorney General for Northern Ireland.").

The noble Lord said: My Lords, in moving Amendment No. 27 I wish to speak also to Amendment No. 34. I shall be brief.

In Committee I said that the Government would bring forward an amendment at Report stage covering similar ground to that in Amendment No. 27 and similar ground to that in the amendments then before the Committee moved by the noble Lord, Lord Goodhart, concerning consent to prosecutions in what might be termed "international" cases. This we have done. Our amendments speak for themselves. As far as international cases are concerned, it should be the Attorney General who has to give his consent to a prosecution taking place. I beg to move.

Lord Goodhart: My Lords, we on these Benches are most grateful to the Government for taking on board the points we made in Committee. We are happy to support the Government's amendment.

Lord Cope of Berkeley: My Lords, we also made similar remarks earlier in our debates. I support the amendment.

On Question, amendment agreed to.

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Clause 118 [Defences]:

Lord Bach moved Amendment No. 28:


    Page 55, line 10, leave out ("sufficient evidence") and insert ("evidence which is sufficient").

The noble Lord said: My Lords, in moving Amendment No. 28 I wish to speak also to government Amendment No. 29. These are minor and technical amendments to make sure that Clause 118, which was added to the Bill in Committee, works for Scotland. The reason they are needed is that Clause 118 as presently drafted uses the expression "sufficient evidence". I am advised that this expression can have a technical meaning under Scots law and, quite simply, could itself require a shift in the burden of proof to the prosecutor. In the context of Clause 118, noble Lords will appreciate that the confusion which this could cause for Scotland is certainly not what we intended--which was to refer to evidence which is good enough to give rise to issues about the matter before the court.

Fortunately, by simply turning the words round from "sufficient evidence" to "evidence which is sufficient" we have been able to keep the meaning the same as it is at present for England and Wales and Northern Ireland while at the same time removing the risk of any confusion regarding the application of the clause in Scotland. I beg to move.

On Question, amendment agreed to.


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