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Lord Dubs: My Lords, I do not think that I can add to the answer that I have given. The Secretary of State has many other matters to deal with, as your Lordships will be aware. One cannot simply stop the whole peace process, the work of the new assembly and all the things with which the Secretary of State is involved because of one case, important though it is. Her responsibilities oblige her to do other things, as well. I suggest that she is moving pretty quickly. I assure the House that I shall pass on to the Secretary of State all the arguments that have been put today about the need for expedition. I shall make sure that she is aware of that very quickly following this debate.
Perhaps I may deal with the substance of the amendments. The amendment spoken to by the noble Lord, Lord Molyneaux, seeks to ensure that prisoners who are not members, or who have not been members, of proscribed or terrorist organisations should have their applications considered first when the commissioners begin their work under the Bill.
The question of the listing of applications was considered in your Lordships' House both in Committee and at Report. I explained the Government's view that it was important that the commissioners should themselves establish clear rules for prioritising which cases should be considered first and that they would be
Indeed, there are a number of problems and difficulties with each of the amendments that relate to the listing of cases and I shall try to explain those problems for the benefit of your Lordships' House. It is important that we consider the detailed problems. This is the Third Reading of the Bill. It is not as though we were in Committee and amendments could be withdrawn and retabled. This is the last opportunity that the House will have to deal with amendments in this way.
Amendment No. 1 ties the priority of consideration to the idea of membership of a proscribed or terrorist organisation. Noble Lords will be aware that to be a member of a proscribed organisation is a criminal offence under the Emergency Provisions Act 1996 as well as under the Acts of that name which preceded the 1996 Act. In practice, only a small number of those convicted of terrorist offences are convicted of being a member of a proscribed organisation. Very often they will be convicted of other offences. In the absence of such a conviction it would be difficult for the commissioners to find that a person was or had been a member of a proscribed organisation. To do so would be to act as though the person had been convicted of a criminal offence and to treat him less favourably as a consequence when in fact there had been no conviction. Noble Lords will understand that to discriminate in that way without proper legal foundation for the decision would probably not be upheld by the courts. In one sense that may be a technical point, but it is also a point of principle which undermines the effectiveness of the amendment in achieving what the noble Lord wants.
A further problem presents itself with regard to membership of a terrorist organisation. Again the term "terrorist organisation" is a term used in this Bill. A terrorist organisation is an organisation identified by the Secretary of State under Clause 3(8) of this Bill. Whether the Bill should be expressed in the manner in which it is currently drafted is a matter to which I shall return later.
It may be the case that all the organisations specified by the Secretary of State under the Bill as terrorist organisations are also proscribed organisations. In that case no new problem over and above that which I have already identified arises. But if that is not the case and if an organisation is specified by the Secretary of State under Clause 3(8) which is not a proscribed organisation the amendment would place a new responsibility on the commissioners. They would be required to consider whether an applicant was or had been a member of a terrorist organisation.
In that case the commissioners would be required to consider all the applications that they receive to decide which prisoners were members of the organisation or organisations in question and which were not. That would be an onerous undertaking and the amendment would require that it be completed before the formal consideration of any single application. Indeed, this latter fact may delay the consideration of the cases that the amendment is intended to benefit. That is why I suggest that the amendments would be counter-productive.
If that approach were taken, every case would have to be considered against that criterion before any application could be determined. Prisoners and their representatives would want to make representations and present evidence, in particular, because the finding by the commissioners would be relevant to whether a prisoner satisfied the conditions for release. It could take a considerable period of time before any decisions were made at all. Clearly, that is undesirable. It is important that the commissioners are able to get down to the work of considering cases quickly.
In addition to the problems with applying these new tests to the existing state of affairs, both this amendment and Amendment No. 2 would require that the commissioners also give consideration to the historical position of the prisoner--whether at any time in the past he had been a member or a supporter of a proscribed or terrorist organisation. That would greatly extend the investigation that the commissioners were required to engage in. Indeed, the consideration of the order in which cases are to be considered would be made in many ways a more onerous task than the consideration of cases against the statutory criteria.
The amendment spoken to by the noble Lord, Lord Tebbit, would require that applications from members of the Armed Forces convicted of murder committed while on duty in Northern Ireland should be considered first. Of course, it is clear which cases the noble Lord has in mind. Again, there are a series of problems with the amendment. First, in addition to applying the tests that are currently in the legislation, the commissioners would have to decide whether a prisoner was a supporter of a proscribed organisation. As with the amendment proposed by the noble Lord, Lord Molyneaux, that would add new responsibilities to the work of the commissioners.
Secondly, Amendment No. 2 would require the commissioners to decide whether a prisoner was a supporter of a terrorist organisation and to consider such cases after the consideration of applications from prisoners who are members of the Armed Forces. This test, which would be used for setting a priority order, is identical to the second condition contained on the face of the Bill. But that cannot be the case. If the commissioners considered that a prisoner was a supporter of a terrorist organisation, they should not consider the application at a later date; they should refuse the application altogether on the grounds that a condition necessary for release had failed.
Viscount Bledisloe: My Lords, does the noble Lord not accept that all that has to happen under the amendment is that applications from members of the services are considered first? There are only two of those. Once that has been done, no further order needs to be cited. The argument in respect of Amendment No. 2 is absolutely inaccurate, though it was correct in relation to Amendment No. 1.
A third problem with Amendment No. 2 is that the amendment considers the priority to be given to two groups of cases--members of the Armed Forces convicted of murder committed in the course of their duties in Northern Ireland and supporters of terrorist or proscribed organisations. What the amendment does not address--to answer the noble Viscount--is the position of applicants who are not a member of either category. Are they to be considered before all other prisoners? After all other prisoners? In parallel with the consideration of soldiers and terrorists, past or present? In that respect the amendment is clearly defective. It is a recipe for confusion and uncertainty designed to weaken or damage the Bill and with it the implementation of the agreement.
These are not technical considerations. We are dealing with rights under law and rights of individuals. We are dealing with the need to have proper processes. If we cut corners, I fear that there will be endless litigation and justice will not have been achieved.
I have set out some of the practical problems behind each of the amendments relating to the listing of cases. In addition, both amendments would require that the commissioners treat prisoners who are or have been members of proscribed or terrorist organisations differently from other prisoners considered under the Bill, whether members of the Armed Forces or not. The agreement draws no distinction between prisoners on the basis of their past or present association, save if they are supporters of organisations that have not established or are not maintaining complete and unequivocal ceasefires in which case the commissioners may not grant them a declaration. The release arrangements are to apply to all prisoners convicted of scheduled offences and sentenced to five years or more or life imprisonment. Within that category no further distinction is made by the agreement and your Lordships' House should not add one at this time.
Perhaps I may briefly refer to the third amendment mentioned by the noble Lord, Lord Tebbit. The noble Lord shakes his head to say that he does not want to proceed with it. However, it relates to a different issue and therefore, whatever the House were to decide on the first or second amendments, would have no bearing on the merits or demerits of the third. It would seriously go against the Good Friday agreement.
In conclusion, even if noble Lords wish to achieve what the movers of the two amendments wish to achieve, I would suggest that the amendments will not do that. The amendments are defective, they are counter-productive and they would not achieve the ends aimed for. But, in a wider sense, I would suggest-- I very much agree with the comments made by the noble Lord, Lord Campbell of Alloway--that it is not right in principle to link the release of these two guardsmen with the Bill. The Secretary of State has made clear what she is doing, what she intends to do and how she intends to set about it. Attempting, as it were, to politicise the argument by linking it with the Bill is neither in the interests of the guardsmen nor is it a proper way to proceed with the Bill.
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