§ 10.2 p.m.
§ Mr. Keith Stainton (Sudbury and Woodbridge)
On a point of order, Mr. Thomas. For the convenience of the Committee, I beg to move,That the schedules relating to the respective parts of the Bill be taken immediately after the respective parts rather than consideration being deferred to the end.
§ The Chairman
I am grateful to the hon. Gentleman, but I am afraid that it cannot be done. I call the hon. Member to move the first amendment.
§ Mr. Stainton
Then I will not seek at this moment to argue with you, Mr. Thomas. Instead, I beg to move Amendment No. 1, in page 1, line 15, leave out 'three' and insert 'two'.
I am not a lawyer, and perhaps that is some advantage in these proceedings in so far as I am entitled to approach this whole matter through the eyes of the layman and the average constituent, the man in the street. I am forced to ask why the provision is for three persons rather than two. From what I have heard in general gossip, my guess would be that the figure three derives from the law of unlawful assembly which relates to gatherings of three or more people who, with certain common purposes, arrange to commit a crime leading to violence—[Interruption.]—or indulge or behave in certain other ways. However, I should like—[Interruption.]
§ The Chairman
Order. Would hon. Members beyond the Bar remember that we are trying to conduct our business in an orderly way?
§ Mr. Stainton
I am obliged, Mr. Thomas.
My object is to have that point clarified, as I should like clarified what strikes me as an ambiguity. Is the person referred 754 to in the first line of the clause one of the three? This is utterly ambiguous in this context. Were he to be one of the three, one could understand the interpretation of the "three" in terms of what I understand is the general law on unlawful assembly, but that does not necessarily follow from my reading of the Bill as drafted. I therefore press the amendment and hope for a reasoned reply from the Home Secretary.
§ The Secretary of State for the Home Department (Mr. Roy Jenkins)
I hope that we can dispose of the amendment reasonably quickly. I appreciate the desire of the hon. Member for Sudbury and Woodbridge (Mr. Stainton) for clarification, but it would be very difficult to justify changing "three" to "two" as he has suggested.
The paragraph is concerned primarily with gatherings of people for a common purpose to support a proscribed organisation. If a meeting of two people were to be so described, it could nominally—no doubt it would not lead to a conviction, but we want sensible laws—be an offence to speak to a member of the IRA. If a person supports the IRA in his terrorist activities he could be dealt with under subsection (1)(b) under the provisions of the Bill or under the general criminal law. I am sure that there would not be any desire to have a chance meeting with a member of the IRA, in the most theoretical sense, made a criminal offence.
I know that the hon. Gentleman's intentions are entirely friendly and helpful, but I hope that he will now think that "two" is sensible.
§ Mr. Stainton
I should like to pursue the question of ambiguity. Is the subject of the clause—"any person" in line 7—one of the three? I follow the logic. If he is one of the three, one can acknowledge that there can be an encounter of the type the right hon. Gentleman has described if there are two other persons. If he is not one of the three, this is a larger multiple.
§ Mr. R. J. Maxwell-Hyslop (Tiverton)
The Home Secretary may believe it—we do not doubt his good faith—but has he taken legal advice? Is there a Law Officer about? I want to know what this means 755 legally, not what the Home Secretary believes. Could a Law Officer intervene on this point of substance?
§ Mr. Jenkins
I am sure that my right hon. and learned Friend the Attorney-General will intervene at any stages where it is necessary. Some practices are quite customary when a Bill is going slowly, but I do not believe that it is the desire of the hon. Member for Sudbury and Woodbridge, who moved this perfectly reasonable amendment, that the Bill should go slowly at this stage. I believe that it is the general view of the Committee that three is a reasonable number. The interpretation of any Act is a matter not for me, nor for the House of Commons, nor for my right hon. and learned Friend. The person referred to here is one of the people concerned.
§ Mr. Maxwell-Hyslop
We cannot let the Home Secretary get away with that. He is offering the House a Bill for whose drafting he is responsible. It is no good his saying that we must not ask him what it means. He has a Law Officer sitting on the Front Bench. My hon. Friend the Member for Woodbridge and Sudbury (Mr. Stainton) asked a perfectly reasonable question. This is not prolonging the proceedings. Will the Law Officer say whether the three includes the "any person" or does not? That is the question. We want to know the answer.
§ The Attorney-General (Mr. S. C. Silkin)
The view that I take is exactly the same as that of my right hon. Friend the Home Secretary.
§ Sir Derek Walker-Smith (Hertfordshire East)
I do not want to detain the Committee on this point, but I think that the right hon. and learned Gentleman must accept that there is an ambiguity here, as my hon. Friend the Member for Sudbury and Woodbridge (Mr. Stainton) pointed out. The words arearranges or assists in the arrangement or management of … any meeting of three or more persons".From the point of view of arrangement, clearly the person referred to in the first line of the clause can be one of the three. But when we come to the next matter of addressing it, obviously he cannot be because he would not normally be addressing himself, so there is a contradiction.
§ Mr. Stainton
If it will meet the convenience of the House, Mr. Deputy Speaker, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Wyn Roberts (Conway)
I beg to move Amendment No. 2, in Clause 1, page 1, line 20, at end insert—'(d) arranges a broadcast, newspaper article or other publicity knowing that the purpose or consequence might reasonably be expected to support, sustain or to further the activities of a proscribed organisation or a person belonging or professing to belong to a proscribed organisation'.
§ The Chairman
As well we shall also discuss new Clause 4—Appearance on radio or television of members of proscribed organisations.
I am quite agreeable to there being separate Divisions if necessary.
§ Mr. Roberts
The purpose of the amendment is quite clear. It is to prevent members of proscribed organisations using the media of the Press, television and radio, and also to prevent persons engaged in the media from giving them opportunities to broadcast.
Perhaps I should make clear that in my opinion the amendment would probably not exclude a factual news interview, but it would exclude certain other types of programme to which I hope to refer in a few moments.
We all have very much in mind the recent appearance on London Weekend Television of the chief of staff of the Provisional IRA, David O'Connell. I did not see the programme but I have read a full transcript of the interview that was broadcast. Although I speak in part as someone who was formerly employed in television news for a number of years before being elected to this House, I was appalled by the quality of the interview. I have no option but to read part of it to the House for the benefit of those who, like myself, did not see it.
I read an extract from the end of the first part of the interview when Mr. O'Connell is speaking:For five years the British Government has had its forces waging a campaign of terror not just on the IRA, but on the people of Ireland. For five years Kitson's theory of leaning on the people, of squeezing the people has been done in the North of Ireland. What have we got from the British public, what have we got from 757 the British people? Total indifference. They have washed their hands. We said last week in a statement"—and I draw the House's attention to these words—that the British Government and the British people must realise that because of the terrible war in Ireland they will suffer the consequences.The interviewer then askedWill you escalate that campaign?Mr. O'Connell said "We will". The interviewer, Mary Holland, then askedhow will you escalate it? Would you take in political assassinations for example?Mr. O'Connell repliedWe have clearly stated—military, judicial, political and economic targets are within our brief at this point of time.He then went on to state his views and his policy and the policy of his organisation concerning the withdrawal of British troops from Ireland.
I am not saying that this interview was deliberately conceived to give a particular impression. However, I am bound to say that I would feel safer in making that assertion if the Home Secretary had seen fit—as I still hope he will—to conduct an inquiry into this interview and discover how it arose. I have very much in mind the effect of that interview on the hon. Member for Belfast, West (Mr. Fitt), who described it on 25th November. He asked the Home Secretary:Is my right hon. Friend aware that, however strong the objections may be to imposing censorship upon television, that man's voice"—Mr. O'Connell's—as it came out on television indirectly led to the murder of 19 people in Birmingham? Does my right hon. Friend not agree that every effort should be made to prevent another such broadcast?"—[OFFICIAL REPORT, 25th November 1974; Vol. 882, c. 45.]The hon. Member for Belfast, West knows a great deal about these matters, and if he felt that the effect of that interview was as he described it, I am prepared to assume that it had a similar effect on others with an interest in what Mr. O'Connell said.
§ Sir John Eden (Bournemouth, West)
Will my hon. Friend have very much in mind the fact that the interviewer's sympathies in this matter have never been concealed and are well known?
§ Mr. Roberts
I do not think that that remark requires any further comment. I accept what my right hon. Friend has said. There is no question but that the IBA saw that interview in advance of its transmission. So the responsibility is not purely that of London Weekend Television or of the officers of the IBA.
I understand that subsequent to the transmission the whole Independent Broadcasting Authority saw the interview and, as I understand it, approved the action of its officers. Presumably the authority considered that section of the Television Act 1964 which requires the authority to satisfy itself that:so far as possible, the programme broadcast by the Authority comply with the following requirements, that is to say—(a) that nothing is included in the programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling".Many of us would feel that to ask Mr. O'Connell whether he was prepared to escalate his activities to include assasina-tions could be construed as an attempt toencourage or incite to crime or to lead to disorder".The IBA has decided to review the matter in the light of this measure. But it must be made absolutely clear to it what our wishes as a House are. That is the purpose of this amendment, and it may well be the purpose of new Clause 4.
That clause may have a weakness in that ignorance is an exoneration within its terms. The Press is included in the amendment. There are differences between the Press, radio and television. With the IBA and the BBC we are dealing with bodies set up by Acts of Parliment and governed by such Acts. I should argue that they have a special responsibility to the House. I do not think that Press interviews have the same impact as television and radio interviews, neither do they occupy as much space in terms of words as television programmes. There are reams of the David O'Connell interview, far more than would ever be printed in a newspaper article.
Further, the possibility of editorial control at various stages in a newspaper is probably stronger than it is on television. 759 Therefore, it may have been a mistake to have included the Press in the amendment, and I am prepared to exclude it if we receive an assurance that the Secretary of State for the Home Department will consult the editors and that they will impose a self-denying ordinance.
I am bound to warn the right hon. Gentleman that I am under strong pressure to divide the Committee on the amendment. I am sure that my hon. Friends and I will do so unless we have the strongest assurance from the right hon. Gentleman that the message of the House is that the broadcasting authorities should take full note of what has been said this evening.
§ Mr. Patrick Cormack (Staffordshire, South-West)
I support my hon. Friend the Member for Conway (Mr. Roberts) in what I think was an admirable speech. I take issue with him slightly in as much as I hope he will not agree to an alteration to exclude the Press. I do not think that the media can be divided absolutely. It is essential that we do not abdicate our responsibilities. We should give some guidance to the media. Over the past few horrific years there has been nothing that has been more nauseating or more offensive to the British people than the sight and sound from time to time of blackguards, villians and murderers appearing on our television screens, or being given radio interviews.
The Secretary of State for the Home Department having brought the Bill to the House and it having been given its Second Reading—I hope that the remaining stages will be dealt with expeditiously—it would be much the weaker if it did not include a provision along the lines of the amendment. I would not be inclined to argue about the wording of an amendment. The right hon. Gentleman has much more expert advice than I am able to give him. I urge him most earnestly to incorporate something along the lines of the amendment in the Bill. If he does not do so, it will be much the poorer and much less effective. I think that the British people would expect it to be included.
§ Mr. John Stanley (Tonbridge and Malling)
I shall address my remarks to new Clause 4. At the outset I shall make it clear what it is and what it is not intended to do.
760 First, it does not restrict the freedom of the Press in any way. The application of the clause is solely to radio and television. Second, it does not restrict in any way the legitimate and necessary function of the reporting of news and comment on radio and television by broadcasting staff, by television staff or by any other individual invited to go on radio or television with the exception of members of proscribed organisations.
In no way do we seek to trammel the freedom of the media to engage in news comment and reporting. New Clause 4 would not even make it an offence for members of proscribed organisations simply to be seen visually on television as opposed to being interviewed. This is because we recognise, after careful consideration, that there may be circumstances in which it is in the public interest that members of proscribed organisations appear on television. For example, if a news cameraman saw an act of terrorism being perpetrated, it might well be in the public interest that he film it and that the film be shown on television. Equally, we recognise that it is important to maintain the ability of the security forces to put pictures on television of those who are members of proscribed organisations and may be sought by the security forces.
New Clause 4 is strictly limited in scope, but we believe that it nevertheless tries to achieve a necessary objective. The sole purpose is to make it an offence for a person knowingly and deliberately to give television or radio facilities, either by way of interview or by recording, to members of organisations which are proscribed under the Bill. We believe that that would hardly seem to be an unreasonable objective in the light of the gross outrages which have occurred and of others which may well occur.
My right hon. Friend the Member for Leeds, North-East (Sir K. Joseph) suggested on Second Reading that the effect of New Clause 4 might be achieved not by legislation but by the adoption of a self-denying ordinance by editors and producers of the television and radio services. If the Home Secretary could obtain an assurance from editors and producers that a self-denying ordinance would be adopted, that would be greatly welcomed by me and also, I am sure, by my right hon. Friend the Member for 761 Leeds, North-East and other hon. Members.
But I have serious doubts about such a course. It seems to me that in a matter as fundamental as the freedom of the media it is the responsibility of Parliament to decide what should be permitted and what should not be. It does not seem to me to be right that the responsibility should be put on the editors and producers of television and radio programmes.
I recognise, however, that new Clause 4 represents a small but important encroachment on the freedom of the media. Hon. Members on both sides of the House rightly and jealously guard the freedom of the media. That is wholly common to us all. We recognise that the freedom of the media is the true litmus paper of whether we have a genuine democracy or a charade. But there are at least three well-founded justifications for contemplating this small and very limited encroachment on the freedom of the media in these exceptional circumstances.
First, new Clause 4 would deprive members of proscribed organisations of the use of what is by far the most potent propaganda platform available to them through which they can communicate most quickly to the greatest number of people. No hon. Member will deny the potency of television and, to a lesser extent, of radio. Few of us would spurn to use them. It is indefensible to give to people who are the enemies of our country and are daily inflicting death and maiming on our citizens this means of possibly inciting and inflaming opinion, a means which can reach into millions of homes.
On Monday the hon. Member for Belfast, West (Mr. Fitt) referred to his own view of the indirect contribution made by O'Connell's performance on television to the recent outrages in Birmingham. In his speech earlier today the hon. Member for Birmingham, Ladywood (Mr. Walden) gave a different view. But if the ability of members of proscribed organisations to appear on television or to use the radio, proves likely in any way to increase the risk of loss of life and suffering, that is sufficient justification for voting for the new clause.
762 10.30 p.m.
The second justification is that the new clause is wholly consistent with the purpose of the Bill. If it, or something like it, is omitted, there will be a glaring inconsistency between the intention of the Bill and its likely practical effect.
In his statement on Monday, the Home Secretary described the powers to be taken as Draconian. Not many of us would doubt that they are. It would appear that some Labour Members were contemplating voting against Second Reading for that very reason. They are far-reaching powers—powers of summary arrest and detention, powers to control movement and new powers of search. They are indeed Draconian.
All these powers are being directed against the IRA and other proscribed organisations. It is grossly inconsistent if on the one hand we take these Draconian powers and on the other hand leave it entirely open to members of those proscribed organisations to appear subsequently on radio and television. If that happens, the people of this country will regard it as incomprehensible, against the background of the legislation we are passing tonight. They will also regard it as highly reprehensible.
The final justification of the new clause is that if we are to retain the confidence of ordinary citizens it is essential that we grapple seriously with a ruthless and totally amoral enemy. The ordinary man in the street is, generally speaking, incensed and fearful over what has happened over some years in Ulster. He is incensed and fearful about what he sees as the likely, or possible, extension of that to the rest of the United Kingdom. One of the factors which have possibly incensed him more than anything else over the past few months and couple of years in particular is the appearance on radio and television of those who are clearly engaged in waging terrorism against the people of this country.
If people have been incensed about the appearance of members of the IRA and terrorist organisations on the television up to now, we can be in no doubt that they will be doubly incensed if such appearances continue after those organisations have been proscribed. The ordinary man in the street is looking to us tonight in the hope that he can obtain 763 confidence that we are taking every reasonable and sensible precaution to fight against this outburst of terrorism and its spread from Ulster into other parts of the United Kingdom.
What will be the grounds for confidence amongst ordinary men and women if, after the passing of this legislation, we see on the television screens next week, next month or next year members of the very organisations which have been proscribed? We cannot expect the confidence of our constituents if we pass these Draconian measures against members of proscribed organisations and at the same time allow them to have a relatively free rein on the media.
It is essential that we deny the gratuitous use of the television and radio facilities to members of the various organisations proscribed by the Bill. If we do, we shall show the British people that we are in earnest against terrorism. If we do not, we shall not convince anyone for long that we are in earnest.
§ The Attorney-General
It may be for the convenience of the Committee, particularly after the persuasive speech of the hon. Member for Tonbridge and Mailing (Mr. Stanley), if I indicate the Government's view on this matter, without wishing to cut short the debate.
Everyone in the Committee would take the view that one thing which we do not wish to see provided is a platform for people who are within the class of terrorist that the Bill deals with. We would regard that as just as offensive as we regarded the broadcasts of Joyce from Germany during the early part of the war. However, there is force in what was said by my hon. Friend the Member for Birmingham, Ladywood (Mr. Walden) namely, that it might be as well in certain circumstances to enable the British public to know, even by seeing or hearing, the sort of people they are up against. We have to try to balance those two things and to balance the great desirability of avoiding unnecessary censorship by criminal sanctions in the light of the situation relating to terrorists in this country today.
There is a possibility of a criminal offence under paragraphs (b) and (c) of subsection (1) of the Clause, but I do not want to make much of that because it is 764 unlikely that it would be used for the kind of censorship which is suggested in the amendment or in the new clauses. The question is: are we to enforce by criminal sanction the kind of good taste—one might use stronger expressions than that—which has been referred to, or should we leave the matter to the good sense particularly of the broadcasting organisations? The hon. Member for Conway (Mr. Roberts) has made it clear that for him the broadcasting and television authorities have the most influence. I think that we would all agree with that. There may be occasions when showing these people on the screen may not be harmful; it may even be of advantage. That is a dilemma which the Committee must consider when deciding what to do about this matter.
I appreciate the force of the views which have been expressed and the Committee's feeling that to provide a platform for these people would be repugnant not only to the Committee but to the public.
§ Mr. Carol Mather (Esher)
Will the right hon. and learned Gentleman take into account the fact that this has been put to the broadcasting and television authorities on many occasions but there has been little sign that they have taken the warnings seriously? In fact, no attempt has been made to take account of the opinion of the public or of many Members.
§ The Attorney-General
I was coming to the position of the broadcasting authorities.
It is right that the Committee should have in mind the position under the statute which governs the IBA and the similar words of the charter which governs the BBC. There is a statutory duty on the IBA to satisfy itself that so far as possible nothing is included in a programme which offends against good taste or decency or is likely to encourage or incite to crime, lead to disorder or be offensive to public feeling. That is a statutory duty, and the same duty applies to the BBC.
I am well aware that there are hon. Members on either side of the Committee who may take the view that one authority or another has failed in that duty, but both the BBC and the ITA have publicly stated, following the statement made by 765 my right hon. Friend on Monday, that they will have to take fresh account of the situation now that the IRA is to be proscribed. In practice, that means that they will consider the provisions of the Bill in consultation with their governing bodies. I have no doubt that they will take into account the views which have been forcefully expressed in Committee tonight, which are not confined to one side of the Committee. They will be fully responsive to the new situation in discharging their existing statutory and other duties for the conduct of programmes. Whatever the position may have been in the past, we have a new situation altogether with the passing of this legislation into law which both authorities will have to take into account, and have said publicly that they will take into account.
I hope that the Committee will take the view that those public statements by responsible people provide a firm basis for confidence that their response will be in accord with the objective of the amendment and the new Clause, without the necessity for additional legislation or for a criminal sanction which would be liable to hit many people and which I am sure that the Committee would not wish to impose as a form of censorship unless it were absolutely necessary.
§ Mr. Cormack
The right hon. and learned Gentleman has not reassured me very much. Most of the interviews were filmed or recorded in Dublin, where the IRA is already proscribed, so I do not see that proscription makes much difference. I wish that I had a little more confidence in the assurances that have been given, but I have not, and, therefore, I feel that we should be abdicating our responsibility if we did not do something.
§ The Attorney-General
Interviews may be recorded in Dublin or anywhere else, but we are concerned with what is shown on the screen and what is heard on the radio from a station in this country. That is where the duty laid down by statute and by charter operates.
The hon. Gentleman is not saying that he is dissatisfied with my undertaking, because I cannot give an undertaking on behalf of those authorities. I am informing the Committee that the broadcasting authorities have publicly stated 766 —and one would not expect that public statement not to be honoured—that they will take fresh account of the new situation created by the passage of this legislation into law. If that is honoured, surely the Committee will agree that it is a much better way of dealing with these matters than a form of censorship enforced by the criminal law [HON. MEMBERS: "No".] That would be starting on a path which hon. Gentlemen opposite would surely regard as perilous. Even in the present situation, I am sure hon. Gentlemen opposite would not think it right to impose that form of censorship on those bodies. That was the view taken by the right hon. Member for Leeds, North-East (Sir K. Joseph) in his very fair remarks. He said that the Home Secretary should discuss these matters with newspaper editors and broadcasting authorities. That is already the position, because the broadcasting authorities have made their statement.
§ 10.45 p.m.
§ Mr. Percy Grieve (Solihull)
The right hon. and learned Gentleman has outlined the duty of the IBA and the BBC under their charters as they now exist. What sanctions are there for breaches of those duties—breaches such as those which appear to the Committee to have been committed?
§ The Attorney-General
The hon. and learned Gentleman knows as well as I do the position in regard to broadcasting authorities. Parliament wishes them to have a high degree of independence. Parliament has created those organisations on the basis that they should have a high degree of independence because we do not wish to impose a censorship on them. But we expect them to respond in a way which recognises the public interest. Following the passage of this Bill into law, unless and until they show that they do not recognise that—and I think it is a highly unlikely state of affairs—it is not, in my view, either right or necessary for the House to impose this censorship upon them by criminal sanctions.
§ Rev. Ian Paisley (Antrim, North)
Is the Attorney-General aware that we in Northern Ireland heard these things from the media when the IRA was given prominence by both media, but it made 767 no difference? When that organisation was proscribed, we still had these things on our screens. Will not the same thing happen in this country? Will not the media here follow the example set by their counterparts in Ulster and continue as they have done hitherto?
§ The Attorney-General
I can only tell the Committee what the authorities said publicly. The view about the interview in question was not unanimous, whatever view may be held about it by hon. Members in this House.
On 19th November the Belfast Telegraph commented on the interview and concluded that, on balance and despite the public feeling about it, it was right for the interview to be shown. There must invariably be differences of opinion about matters of this kind which involve censorship. I am sure that is why the right hon. Member for Leeds, North-East expressed his view about this in a way which would not have led to censorship and criminal sanctions, so that a reasonable flexibility could be permitted to the authorities, and, provided that they do as they have said, they will take fully into account what clearly is the view of this House.
It is clearly the view of this House that a platform should not be provided for those who will make remarks which are offensive to the people of this country. There is no reason to doubt that that assurance will be fulfilled, and I urge the Committee——
§ The Attorney-General
Certainly, but I have given way to a number of hon. Members already, and I want to bring my remarks to a conclusion. I am sure that the Committee wants me to do that, because we have a great deal more to debate.
§ Mr. Emery
Will the right hon. and learned Gentleman answer one direct 768 question? We all want to help him, and in many ways we are trying to. That is why I wish to put to him this very fair question. The television authorities have the responsibility at this moment to take into account those specific duties which the right hon. and learned Gentleman has quoted to us. Many right hon. and hon. Members think that the projection of that programme was massively offensive to public decency.
§ Mr. Emery
What the Attorney-General has said is that the television authorities say that they will take fully into account both the statement of the Home Secretary and this Bill. But what is the position if, having taken them fully into account, just as they did their obligations under the Television Act, they continue to transmit such programmes because they believe that they have to give a balanced viewpoint or because they believe that they must not give way to suggestions of censorship—the word which we heard just now from a Government supporter? What can the Attorney-General do about the continued projection of that sort of programme?
§ The Attorney-General
They have said that they will take fresh account of the new situation which will arise as a result of this legislation being passed into law. I do not want to comment on the propriety of any specific programme which was produced in circumstances which were quite different from the position in the future, because legislation of this kind, with proscription of the IRA, was not then on the statute book, as it will be when we deal with these matters in future.
I appreciate entirely the strong views of many right hon. and hon. Members about this kind of programme being put before the British public. I appreciate also the strong views of right hon. and hon. Members on both sides of the Committee that we should not have any more censorship than is absolutely essential. It is a difficult balance. On balance, however, I believe, and I hope that the Committee will accept, that it is right to leave the matter to the undertakings which have been given in the expectation that they will be honoured in the future, having been given by responsible people.
§ Mr. Norman Fowler (Sutton Coldfield)
Perhaps I might intervene briefly in order to give the Attorney-General a chance to seek to speak again having listened to what the Opposition have to say, because I do not think that the Committee will accept the right hon. and learned Gentleman's statement that fresh account will be taken of the new situation as a particularly satisfactory reply to our arguments.
We shall want a firm assurance on at least three points. The right hon. and learned Gentleman has at no stage made clear the Government's view on the position now or after the Bill becomes law. That is a fair point to make.
On Second Reading my right hon. Friend the Member for Leeds, North-East (Sir K. Joseph) asked for further and immediate discussions between the Home Office and the broadcasting organisations. The right hon. and learned Gentleman has not satisfied us on that point.
My hon. Friend the Member for Honiton (Mr. Emery) asked what sanctions there were if the broadcasting organisations did not take the fresh account of the situation that the Attorney-General wants them to take. What sanctions are available? If there are no sanctions, the right hon. and learned Gentleman should be quite honest and straightforward about the situation and tell the Committee that there are no sanctions.
If we are to proscribe the IRA, if we are to make it an offence to belong to that organisation or to show support for it, it would be an absurdity to allow its members to appear in interviews on television. That is how the public will regard the matter.
Clearly, as has been made absolutely clear, there are difficulties in definition. We do not want to set up a censoring body for news reporting, but we want to prevent propaganda from the IRA being broadcast on the media. That intention is expressed perfectly well in the proposed new clause.
My right hon. Friend the Member for Leeds, North-East made it clear that he would prefer a course whereby the Home Secretary entered into immediate talks with the heads of the broadcasting organi- 770 sations on the position that will be created when the Bill becomes law. We would like an answer on that point. We would prefer the broadcasting organisations to take their own action, but we would want that action to be certain.
Surely the position has now changed. Members of the IRA will now be members of a proscribed criminal organisation. We no more expect to see them being interviewed on television than murderers who are on the run or bank robbers who are in hiding.
I urge the right hon. and learned Gentleman to intervene further and try to assure us on the points that have been made.
§ Mr. Brian Sedgemore (Luton, West)
I oppose the amendment and the new clause on the ground that censorship through the criminal law is both fundamentally wrong and dangerous. I am equally worried about censorship through the winks and nods of the British establishment. If there is to be censorship, I think it would be better for it to be as a result of the deliberate act of Parliament. At least we would then know who the censors were. I will make my position unequivocally clear. I abhor this amendment.
We may turn the Bill into an Act tonight, but the IRA will not go away. There will come a time when the Government will have to negotiate with these barbarous thugs and will have to take a view about their outlook, mentality and future intentions. Therefore, there may come a time when the public will have the right to take a similar view and to form their own opinion. It is for that reason that I oppose the amendment.
We may have some heated exchanges tonight, or they may be quiet, but I hope that we shall not conduct this Committee stage in bad taste. I fear that we started off in bad taste. I believe that in moving the amendment the hon. Member for Ton-bridge and Mailing (Mr. Stanley) was quoting somebody when he said that a certain television interview may have led to or encouraged the planting of the bomb in Birmingham which cost the lives of 19 people. Another hon. Gentleman then stood up and said "We know where the sympathies of that interviewer lie", to which the first hon. Gentleman replied, "Yes, I need not elaborate on that." I 771 choose my words carefully when I say that I hope hon. Members will not hide their disgusting innuendoes behind the privilege afforded by the House. The interviewer is a young and courageous individual, and it is wrong of hon. Gentlemen to use the shield of privilege to make libellous remarks.
§ 11.0 p.m.
§ Sir D. Walker-Smith
The right hon. and learned Gentleman is an old and respected forensic opponent of mine, and I know how much he relishes having a really weak case to deploy as a challenge to his forensic ingenuity, and certainly he could not have had a better challenge than he had this evening. He could scarcely have had a weaker case, and I think it is fair to say that his embarrassment came through in the way in which he tried to deploy it.
It is always difficult for Ministers, and particularly for Ministers who are lawyers, to seek to sustain the proposition that things that would properly, normally and conventially be enshrined in the law of the land in accordance with our ordinary procedures should for some nebulous, unsatisfactory reason be relegated to the sphere of unenforceable undertakings. That is what the Attorney-General was suggesting, and it was even weaker perhaps than normal because of the background against which the suggestion comes, because those whose unenforceable undertakings are to take the place of the statute law are those who are already in breach of their statutory duty in regard to conduct in the very context with which we are concerned here.
§ The Attorney-General
I should never suggest that Front Benches have all the wisdom, but the right hon. and learned Gentleman will recall that that was precisely what his right hon. Friend was advising the House on Second Reading.
§ Sir D. Walker-Smith
As I understand it, there is no issue but that they are in breach of statutory duty. It has been asked what sanctions there would be to enforce the compliance of what I have called these unenforceable undertakings. The answer is that there are no real sanctions that could make them enforceable at all, and that is part of the case for putting them into the framework of the statute law.
772 What is argued against that proposition is that this would be a form of censorship. But that again is not an accurate description. There is not a completely unlimited right in anybody, be he the media or an individual, to publish whatever he wishes without any constraints at all. There are the well known constraints—sedition, libel, blasphemy, and so on. If this applies, surely it follows that there must not be a publication the consequence of which is to sustain an illegal organisation pursuing criminal and terrorist activities. The question of censorship does not comes in.
Nor is it right to suggest, as the right hon. and learned Gentleman did, that there might be some merit in allowing the programme to go forward so that they could be seen for the sort of people they are. The prosecution will succeed here only if the purpose or consequence of the broadcast might reasonably be expected to support, sustain or further the activities of the proscribed organisation. If my hon. Friend's amendment is accepted, for the prosecution to succeed it has to establish knowledge of that consequence. I agree that that does not follow completely from the new clause, which reads rather differently and makes it an offence to interview a member of a proscribed organisation, irrespective, apparently, of the subject matter. For that reason, the amendment is to be preferred. If I had had the drafting of this matter I should have included elements of both. We cannot do that at this stage, because we are taking the whole of these stages together. I would, therefore, recommend the right hon. Gentleman, for these reasons, to accept the amendment.
§ Mr. Phillip Whitehead (Derby, North) rose——
§ Mr. Whitehead
With respect to the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith), this is a question of censorship. The media are the subject of dispute in this debate because of the interview on London Weekend Television. We should none 773 of us forget in moments of heat and passion that the mass media are a buttress of our liberties, protecting the liberty of those who regard what they see as subversive as well as of those who regard them as reinforcing the status quo. The media are always under attack whenever liberty is under attack. That is as true in Prague or Paris as it is in Belfast. The media are the target in that sort of situation, and they are the target of the forces which we hope to combat with the Bill.
Not all hon. Members have actually seen or read the transcript of the interview with David O'Connell. It was not a party political broadcast for the IRA. I agree with my hon. Friend the Member for Luton, West (Mr. Sedgemore) that the slurs on the integrity of the interviewer, Miss Mary Holland, were improper and do not properly reflect on her professional standing and the way in which she conducted the interview.
It may be of interest to read one quotation from that interview, in which O'Connell said:Furthermore we reject outright this charge that we shoot people because they are Protestants. If I may take a case which resulted in a great deal of criticism on ourselves, namely the execution of two Judges. One of those was a Catholic. It was immaterial to us what religion the man practised.Miss Holland then asked:These two men to whom you refer, Judge Conaghan and Martin McBirney, were both in fact known for their rather liberal attitudes towards political offenders. Now, to people in the north it just seems that when you start shooting people like that that there is no defence against anything, that, that their whole system of law is going to break down. I mean how can you justify that?He replied:It's a clear cut case. They were part and parcel of the corrupt British system in the north." [Interruption.]
§ The Chairman
Order. The hon. Member for Northampton, South (Mr. Morris) should learn that he cannot intervene when he is outside the Chamber.
§ Mr. Michael Morris (Northampton, South) rose——
§ Mr. Whitehead
The Committee must get on and I must get on. The hon. 774 Member has only just come in. He must listen to what I have to say.
These views that I have quoted are detestable to all of us. They are the views of someone who is demented in any political sense that we should understand. But, as my hon. Friend the Member for Birmingham, Ladywood (Mr. Walden) said on Second Reading, it is not a bad thing that they should be expressed. When the London Weekend people put that interview on the air before the Birmingham bombings, I believe they acted in good faith and felt that a wider public should see what manner of man O'Connell was.
I do not know the view of the Secretary of State for Northern Ireland, but I should imagine that those views expressed by O'Connell in that interview, when seen in the Province, must have disgusted everyone, Catholic and Protestant alike, and that is not wholly a net loss to freedom.
§ Mr. George Cunningham (Islington, South and Finsbury)
But would my hon. Friend regard it quite so tolerantly if the same kind of broadcast were made in the "Open Door" programme, in which television time is handed over to an outside programme or group to construct a programme more or less as it wishes? The BBC and ITV programmes would be free to do that at the moment, if they wanted to, as I understand it.
§ Mr. Whitehead
Yes, they would be free to do that. I think that they would be wrong to do so. They have not done so. The short answer to my hon. Friend is "No". I would not offer to an organisation which does not respect any of our liberties the freedom of the air to make propaganda of that kind.
Broadcasting in this country operates by a system of transferred legitimacy. It is a fairly subtle and sophisticated system. The powers are already there to control it. They rest, and have rested recently, with the Home Secretary himself. As well as the statutory powers in the BBC Licence and Agreement and those relating to the IBA, the Home Secretary has an implicit power.
There are bound to be occasions when the system goes wrong. The explicit power of Governments over broadcasting 775 also gives rise to mistakes and misunderstandings where there is an explicit power in the statutes. Three years ago, in the Irish Republic, on Telefis Eirean in somewhat similar ciumstances an interview was given by Sean MacStiofain, the then chief of staff of the Provisional IRA. It was held by the then Minister in the Fianna Fail Government—Mr. Collins—to be in contravention of Section 31 of the 1960 Act relating to broadcasting in the Irish Republic. As a result of that, between teatime and dinnertime he sacked the entire board of the Telefis Eirean. That can be one result of an explicit power. It does not seem to have improved broadcasting or to have controlled terrorism there. Indeed, many of the terrorists go as free today in the Republic of Ireland as they did.
I apologise for missing the first few minutes of the speech of the hon. Member for Conway (Mr. Roberts). The amendment would put a power of censorship in the hands of the House of Commons. It could even prevent a discussion from taking place on television on whether an organisation should be banned under Clause 1. The Home Secretary may have to work through this power in future. It may be that other organisations will be banned. It may be that that is a very legitimate area of public concern and debate. It should be possible to have that as widely debated as possible on the predominant mass media of the day.
I would not wish to see this power taken from the broadcasting organisations and simply transferred to the House of Commons, where at present passions are running high. There is already self-censorship, or reference up, in broadcasting. This is a system which has been instituted in recent years and which has been applied by the BBC in the case of Northern Ireland. Hon. Members will remember that for some years the broadcasting media ignored Northern Ireland affairs. There was a system of reference up then which said that we should not look at affairs in the Province because affairs there were best left alone. That did not do us any good at that time.
I believe that the broadcasting organisations will have taken this debate to heart, particularly the remarks made 776 in very strong terms about censorship by a number of hon. Members. It may well be that with hindsight, which includes the bombings in Birmingham last week, the O'Connell broadcast was, in the circumstances, an error of judgment. That it was made in good faith I have no doubt.
§ Mr. Victor Goodhew (St. Albans)
The hon. Member cannot speak about hindsight in that sense. British soldiers have been killed in Ulster for the past five years. It is still just as offensive on those grounds for a broadcast of this type to be made. It is not a question of hindsight over Birmingham.
§ Mr. Whitehead
Anything which in any sense belittles the activities of British Service men and the security authorities in Northern Ireland will give offence to many people in this country. I have never heard the argument advanced—and I hope that it never will be—that something shall not be shown because it gives offence to certain sections of opinion here. In the nature of broadcasting in a free society, occasionally an unpopular line has to be pursued. I do not want the House of Commons to extend its shadow over this subtle relationship with the broadcasting authorities. These authorities know what the legal position will be. I am sure that the people at the head of those authorities will have seen my right hon. Friend the Home Secretary; they know what the new legal position is and they will abide by it. But if we extend parliamentary censorship we shall have taken the first step towards an evil every bit as bad in its way as the foul crimes we are hoping to combat by this legislation tonight.
§ 11.15 p.m.
§ Rev. Ian Paisley
On the day after the broadcast by David O'Connell I attempted to raise the matter on a Private Notice Question and failed, and then did so under the Standing Order No. 9 procedure in order to bring it to the attention of the House.
I am glad that the Secretary of State for Northern Ireland is present tonight because he has said inside the House and outside that the spate of murders in Northern Ireland recently was sparked off by the brutal murder of two members of the Northern Ireland judiciary—the 777 magistrate, Mr. McBirney, and Judge Conaghan.
What was most repugnant to the people of Northern Ireland was the reference made in that broadcast, and partly read by the hon. Member for Derby, North (Mr. Whitehead), to the fact that these two members of the judiciary were warned by the IRA, told to resign from their posts and then executed. That part of the broadcast caused a wave of revulsion, and not only in Northern Ireland. Ulster Members had messages from people on this side of the water saying that this was a terrible happening.
The threat was made on that Sunday by David O'Connell that something would happen on this side of the water. Those of us who live in Northern Ireland are aware of the reality of the threats of the IRA. They must be taken seriously. People are saying that surely security could safeguard the lives of two members of the judiciary who had been warned and threatened by the IRA. Why was it that these men were murdered by the IRA, they ask.
This is a most serious matter. We should look carefully at the position. I would not be satisfied with the statement by the Attorney-General that the broadcasting authorities will look at the matter. We have heard this in Northern Ireland before. There we have been told on many occasions when protests have been made that these matters will be looked at again, and yet the media have been used as a propaganda machine for the IRA and other proscribed organisations.
§ Mr. Bruce Douglas-Mann (Mitcham and Morden)
The hon. Member said that the broadcast caused a wave of deep revulsion. Does he not think that it was a good thing for that revulsion to be experienced? If that broadcast had not taken place, a great many people who regard what is happening as being something distant on the other side of the water would not have realised to the extent they now do how revolting it was.
§ Rev. Ian Paisley
Revulsion of that kind can be very serious because it can lead to retaliatory acts, and we have seen the result of revulsion in Birmingham last week. It would be a strange thing for the Committee to say that a wave a revulsion was a good thing.
778 That broadcast gave the IRA a national platform to put forward its views. The hon. Member for Derby, North told us that we should know what these men are thinking. The British troops, the policemen, the police reserve and the UDR in Northern Ireland know what they are thinking. The widows and the orphans of the security forces know what these men are thinking. They are out for blood. They are not interested in any political solution because their type of activity carried out in Birmingham last week, and carried out over past years in Northern Ireland, is one of frightening destruction. If they had a united Ireland tomorrow what sort of united Ireland would it be? It would be a repeat of the bloody civil war that tore Ireland apart after the British withdrew from the southern part of Ireland.
This House should look seriously at this important situation. We should not be prepared just to say that because the media have given a promise they should be permitted to carry on as they have carried on hitherto.
§ Mr. Roy Jenkins
I intervene at this stage not necessarily to bring the debate to an end, although I hope that it might conceivably have that effect, but to try to introduce an ameliorative note into a discussion which, curiously, arouses deeper passions than the much wider issues raised by the Second Reading debate on which we spent six hours earlier. Our difficulty takes us to the heart of the matter of the difficulty involved in the Bill as a whole.
When I replied to the Second Reading debate I said towards the conclusion of my speech, I believe broadly with the support of nearly the whole House, that what we had to do in this situation was to take sufficiently resolute action to ensure that we were not failing to meet the needs of a critical situation and worried public opinion. Equally, there should not be such a panic reaction as to push us into a position in which we endangered the liberties to which we attach great importance.
I also said, I think again with the support of the great mass of the House, that I was introducing these powers on a temporary, six-monthly basis and they might need to be reviewed from six months to six months. We all want to see 779 the end of these powers as quickly as possible and hope that we are dealing with a relatively short-term situation. I strongly believe that it would be a grave disadvantage—I might almost say tragedy—if as a result of these special powers, which I hope will need to be fairly short-lived, we were in any way permanently to change the relationship of this House, and of any Government, with the broadcasting authorities.
There is a danger that we may be getting into this position. I attach—and so, I believe, does the overwhelming majority of all hon. Members—the greatest importance to the freedom of broadcasting and the freedom of the Press. The only point on which I took direct issue with the hon. Member for Conway (Mr. Roberts)—although I do not wholly agree with the amendment—was when he said something like "We must tell the broadcasting authorities that they are the servants of this House."
§ Mr. Jenkins
I am glad to know that. The hon. Member implied that the authorities were subordinate to this House. I would very much regret it if this House thought that it ought to issue directives from time to time on issues on which it felt strongly, or that the broadcasting authorities felt that they had to act in a certain way. We want independent broadcasting. We certainly want responsible broadcasting, and I shall come to that.
We have to be careful about how we approach this issue. The right hon. Member for Leeds, North-East (Sir K. Joseph) approached this matter in a moderate, responsible way. He said he thought that it could be reasonably resolved. The hon. Member for Sutton Coldfield (Mr. Fowler), speaking later when the debate had become a little heated, put three not unreasonable points.
He raised the question of the Government's view about such a broadcast in future. I should prefer not to comment on a broadcast in the past. Once a Home Secretary finds himself in the position of saying whether he approves or disapproves of a programme he is on dangerous ground. I say clearly that the 780 IRA having become an illegal organisation once the Bill is passed, as I hope it will be, I would regard such a broadcast in future as wholly inappropriate.
Second, there can be discussions between myself and the heads of the broadcasting authorities. I believe that they have indicated in their public statements that they will wish to behave responsibly and that they will take great note of the feeling in the Committee this evening.
Third, there is an extreme sanction available. The Government can issue directives to the broadcasting authorities. They can in the last resort sack the chairmen and the governors. There is authority to do so, although I would deplore having to use it. I believe that the debate has made its point, and I hope that this matter will not be pressed to a Division.
If hon. Members are determined to have a Division, let us divide, but let us remember that we have approached this measure with a substantial degree of all-party agreement. We may have to have Divisions later but let us avoid them when we can. On reflection, I do not believe that there is much division of feeling in the Committee and that there would not be a desire as part of this short-term situation in any way permanently to change or to modify the independence of the broadcasting authorities. I believe that this is an issue that can be solved with good sense and responsibility on both sides.
Having responded fully to the spirit of what the right hon. Member for Leeds, North-East said earlier, and having answered the three points raised by the hon. Member for Sutton Coldfield, I believe that it would be reasonable for us to leave the broadcasting authorities to draw their own deductions from the debate which take taken place and to proceed to some other amendments which I hope we shall be able to deal with with less heat.
§ Amendment, by leave, withdrawn.
§ Mr. Cormack
I beg to move Amendment No. 3, in page 1, line 23, leave out 'six months' and insert' two years'.
§ The Chairman
With this amendment it will be convenient to discuss Amendments No. 4, in page 1, line 23, leave out '£400' and insert'£2,000'. and No. 5, in page 2, line 2, leave out 'five' and insert 'twenty'.
§ Mr. Cormack
The whole purpose of the Bill is to prevent terrorism. No one would doubt the sincerity or determination of the Secretary of State in presenting it. If the Bill is to prevent terrorism, if it is to deter people from committing these dastardly acts and if it is to have the effect the right hon. Gentleman and the Committee wish, then central to its purpose are the penalties within it.
If the powers that the right hon. Gentleman has taken are Draconian, I suggest that the penalties within the Bill are less than Draconian. I suggest that the maxima that are proscribed are far too low. If I may draw an analogy from a Bill before the House in 1971—namely, the Oil in Navigable Waters Bill—it was adjudged by the Committee deliberating on the Bill that the penalties prescribed were far too low to deter any potential polluter from committing an offence. That Committee increased considerably the penalties in that legislation. I believe that the penalties in this Bill are not of such an order as to deter.
I do not want my remarks in this context to be related to the issue of capital punishment and whether that is a deterrent. I should not want it to be thought that I am making a oblique reference to that. What I am suggesting is that penalties involving a term of six months' imprisonment and a fine not exceeding £400 in Clause l(l)(i) are not particularly swingeing.
§ 11.30 p.m.
§ Mr. Cormack
Especially with a depreciating currency, as my right hon. and learned Friend rightly says. No account of inflation is taken in the Bill.
The people who are likely to be hauled before magistrates—the terrorists' runners, those who harbour, those who contrive—could be deterred by penalties. Whether the real villains can be deterred by the ultimate deterrent is a subject which we can debate at a later stage, but I believe that many of the people who commit any 782 of the offences detailed in the clause could be deterred if the penalties were a little more severe.
I am not saying that I stand or fall by the penalties suggested in these three amendments, but I seriously suggest to the Government that the penalties in the Bill are not sufficient. I very much hope that the Minister of State in his reply will assure us that the Government have taken the point on board and are prepared to do something about it, even at this very late stage. It is of the utmost importance that the Bill succeeds in its aims and objectives, and it would be a great tragedy if it failed because the penalties prescribed were not severe enough.
There are two other points I should like to mention. The first point is that when people are being removed and put out of harm's way, it will be to the advantage of everybody if there is the opportunity to keep them there for a little longer than is suggested in the clause.
The second point is that we are talking in terms of the maximum that can be imposed. A maximum as small as that in the Bill—six months' imprisonment, £400 fine or on conviction on indictment five years' imprisonment or a fine—does not fit the bill. I very much hope that the Government will indicate that they have some sympathy with the point I have raised.
§ The Minister of State, Home Office (Mr. Alexander W. Lyon)
The hon. Member for Staffordshire, South-West (Mr. Cormack) wishes to add a greater penalty to deter acts of terrorism. The commission of an act of terrorism as described by the hon. Member is an act contained in Clause 1.
§ Mr. Lyon
The hon. Gentleman referred to acts of terrorism and the necessity to deter such acts. If a member of the IRA commits an act of terrorism in the sense that he explodes a bomb in an enclosed place, there are provisions within the criminal law that can deal with that matter and exact very severe penalties indeed. We are concerned about the appropriate penalties to be meted out for the offences under Clause 1 of being a member of the IRA, or of soliciting or 783 inviting financial or other support, or of being at a meeting intended to further the activities of the IRA.
In seeking appropriate penalties to exact, the penalties in Clause 1 (1) (i) should be compared with the normal penalties in magistrates' courts. The normal penalty in the magistrates' court is six months' imprisonment or a fine of £400. In any event, it does not really matter if the seriousness of the offence seems in the eyes of the prosecution to merit a rather greater sentence than that, because the prosecution can always ask that the case should go to a higher court, in which case one comes to the penalties under Clause l(l)(ii), which are exacted on conviction on indictment. There the maximum is five years' imprisonment or a fine, which, incidentally, is without limit. That would certainly be a more severe penalty as a maximum than the suggestion contained in the first two of the three amendments.
Therefore, the issue between the hon. Gentleman and the Government relates to his Amendment No. 5, which would increase the maximum penalty for a conviction on indictment to 20 years and/ or a fine of unlimited amount. Twenty years is in excess of the maximum penalty for conspiracy to commit murder, for which it is 10 years, or placing explosives with intent to do bodily harm, for which it is 14 years, or possessing a firearm with intent to commit an indictable offence, for which the maximum is again 14 years.
It seems inappropriate that for membership of the body, and that alone, one should be able to receive a maximum penalty which is in excess of that for committing one of the acts of terrorism to which the hon. Member referred. I hope, therefore, that he will accept that the penalties suggested in the Bill are sufficient to deter people from being members of the IRA or, at least, from openly accepting membership of the IRA.
The clause was modelled on the Northern Ireland (Emergency Provisions) Act 1973, which itself banned the IRA, and which seems to have been successful in Northern Ireland in at least controlling open membership of the IRA. I would hope that it would have the same effect in this country.
§ Sir D. Walker-Smith
May I in one sentence, in justice to my hon. Friend's argument on the first point concerning summary proceedings, put this to the Minister? Of course, if one wants bigger penalties one can go on indictment, but that takes more time, and speed is of the essence here. What my hon. Friend was concerned with was to get an emphatic penalty on summary conviction so that the matter could be disposed of quickly and be an effective deterrent even in the context of summary proceedings.
§ Mr. Cormack
I must confess that I am not altogether happy with what the Minister of State has said. I have doubts as to the effectiveness of the legislation at present in force in Northern Ireland, and I have doubts whether this legislation will be as effective as we all hope it will be here. In the interests, however, of unity and in the desire to see the Bill—which I want to see on the statute book—passed, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Norman Fowler
I beg to move Amendment No. 7, in page 2, line 10, leave out'and connected with Northern Irish affairs'.
§ The Chairman
With this amendment we shall debate Amendment No. 6, in page 2, line 10, leave out from 'Kingdom' to 'or' in line 11.
§ Mr. Fowler
The amendment is important. In the Second Reading debate the point was raised by my right hon. Friend the Member for Farnham (Mr. Macmillan) and touched on by my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies) that under the Bill the Secretary of State may by order proscribe terrorist organisations, but only those connected with Northern Irish affairs. The purpose of the amendment is to consider whether it would not be better for the Bill to go a stage further.
We appreciate that the Bill takes wide powers—Draconian powers, to use the Home Secretary's phrase—and that the Government are naturally reluctant to extend them unnecessarily. We also appreciate that Clauses 7 and 8 appear to go further and give more power to constables, and powers over control of entry, which apply to all terrorists. We also 785 appreciate—if I may say so, none better than a Birmingham Member—that our present battle is against a terrorist organisation connected with Northern Irish affairs; namely, the IRA.
But it is also our belief that we live in the age of the terrorist, that there are groups in many countries prepared to use the methods of the terrorist to bring pressure on Governments. Almost every week terrorists kill or injure innocent people in an attempt to force their will. Therefore, we ask whether the defences of the Bill are adequate to deal with the threat.
Would it not be better to have a Bill which allows us to proscribe any terrorist organisation, whether or not connected with Northern Irish affairs? After all, we were reminded only this week that not all terrorist actions which put at risk United Kingdom citizens are connected with Northern Ireland. The Palestinian terrorists who hijacked the British Airways airliner and murdered one of the passengers present a danger to the citizens of not only the United Kingdom but other countries.
Not all terrorist organisations can be described in neat geographical terms. At the same time as we debate these measures, West Germany is considering new proposals to deal with terrorists there. For the past few years the German police have been trying to counter a group which has gone from bank robberies to planting bombs to assassinations. I refer to the so-called Red Army faction, better known perhaps as the Baader-Meinhof group. Its aim is to destroy society as it now is, to create chaos to provoke an over-reaction from the authorities, and, when the society collapses, to be on hand to rebuild a society which it wants. In other words, as it cannot win by votes, what it seeks to achieve, it tries to win it by bombs.
I mention those two cases because I believe that we should note trends elsewhere in the world, including Europe. Unless we take note of those trends we may be unable to guard against the risk that we may have to face in this country. We should have defences against terrorists generally, not just against one kind of terrorism. That is the point of the amendment.
786 Would it not be better if we had an Act which was more flexible than the Bill appears to be? We are not asking the Government at this stage to add names to the list of proscribed organisations. We are asking them to consider whether we should not have an Act under which this would be possible if—and only if—the need arose.
§ 11.45 p.m.
§ Mr. A. J. Beith (Berwick-upon-Tweed)
My name and that of my hon. Friend the Member for Roxburgh, Selkirk and Pebbles (Mr. Steel) appear on this amendment because we submitted an amendment in identical terms and share the reservations expressed from the Opposition Front Bench.
It is right to pause to consider whether it is right that the Bill should be framed so narrowly. I can understand the Home Secretary's desire not to have a Bill, temporary in character, which is wide in its scope, but there are a number of reasons why we should be cautious about the clause. One I mentioned on Second Reading; namely, that it is wrong to suggest to the Irish and Northern Ireland communities that they are the only sources of terrorism. Our memories of recent events are clear enough to make it obvious that that is not the case. We have not forgotten the Angry Brigade explosions. It would be foolish to imagine, even within the limited time scale of six months, that we can guarantee that there will not be other acts of terrorism similar in character but not emanating from the Northern Ireland situation.
We must also consider the possibility that the IRA, having been proscribed, will decide to try to operate through a generalised front organisation which does not explicity avow the same purposes in relation to Ireland. If it became in the interests of the IRA strategy to continue bombing and in a way which was being hindered by the legislation, it might seek to use some other front organisation.
We must also consider the position of the authorities if they are unable to discern the source of terrorist activity. What happens if we are confronted with a terrorist situation in which we naturally jump to the conclusion that the IRA is responsible but that may not be the case?
787 In the last few weeks I have begun to wonder whether we are slightly perverting justice by automatically assuming that a particular terrorist organisation is involved. In a number of cases it seems to be, but we must not jump readily to conclusions. In what position do we put the authorities if we require them to be satisfied that terrorism is related to Northern Ireland before they take action under the Bill?
I can understand the Secretary of State's reservations about having a wide Bill, but the amendment and amendments similar in character do not widen it to a very considerable extent. I hope that the right hon. Gentleman will take that into account.
§ Mr. Roy Jenkins
I understand the feelings of the hon. Members for Sutton Coldfield (Mr. Fowler) and Berwick-upon-Tweed (Mr. Beith). In drawing up the Bill, I considered carefully whether we should apply this restriction. I came to the conclusion firmly that it was better so to do, for the following reasons.
This is an emergency powers Bill introduced at short notice to deal with a particular position. In these circumstances, it is desirable that we should confine the Bill, so far as is reasonably possible, to dealing with the problem which confronts us and which justifies the exceptional measures we are introducing. We should not, under the threat of dealing with a particular situation, seek powers which the Government would not seek and which the House of Commons would not feel justified in giving the Government to deal possibly with different situations. Therefore, I decided that it was better to restrict the Bill in the way proposed.
Somebody said that I had stated that the Bill was to deal with a clear and present danger. They are the words of Oliver Wendell Holmes which I appropriated for the purpose, but they are suitable words to signify what we are dealing with. I do not think that it would be appropriate to extend the Bill's scope to the general terrorist threat under which, to a substantial extent, the world is living at present.
That does not mean that we do not regard other forms of terrorism as de- 788 testable and objectionable, but my desire—and I believe that of the Committee—is to get rid of the Bill as soon as we arrive at a position in which the threat of terrorism connected with Northern Ireland makes it possible to do without it. If we were trying to deal with world terrorism we should have to justify allowing the Bill to lapse in relation not merely to the Northern Ireland position but to whether all other forms of terrorism which beset the world had subsided. One would be in a foolish position if one allowed the Bill to lapse and some further act of terrorism occurred.
The hon. Member for Berwick-upon-Tweed said that we must know who exactly is committing acts of terrorism. That may arise, but if it does a more generous position will not help, because one has to know who is acting in that way before proscribing an organisation.
§ Mr. Jenkins
We are dealing here with proscribing an organisation and shall deal later with exclusion orders which are related to a particular position. One can probably deal with other forms of terrorism under more normal forms of deportation. The restriction which we have here, after consideration, deliberately applied in the interest of keeping the Bill as narrow as is reasonable, would in no way prevent us from dealing with the IRA if it were to change its name and manifestations. As I said on Monday, I regard that as quite likely, and it is a situation with which we may have to deal.
I can see that there are arguments both ways, but, in view of the exceptional nature of the powers which I am asking the House to vote at short notice, on balance I think that I am right to restrict those powers as far as possible.
§ Dr. Alan Glyn (Windsor and Maidenhead)
I have listened carefully to what the Home Secretary said, and I can see that he does not want to bring forward a very wide measure under the guise of something else. The Home Secretary will be the first to realise that we are dealing with a special situation. I believe that by widening the legislation we should make the Home Secretary's position stronger. If, for instance, another organisation tried to 789 act under cover of the IRA, the right hon. Gentleman's position would be strengthened, and he would not have to come back to the House of Commons with an amendment. I cannot see that he will lose anything by accepting an amendment which merely strengthens his hand. My hon. Friend the Member for Sutton Coldfield (Mr. Fowler) showed his great confidence in the Home Secretary by moving the amendment.
§ Mr. Ian Mikardo (Bethnal Green and Bow)
Those of us who deeply regret the necessity for the introduction of the Bill and are carrying through today's proceedings with great reluctance will agree with my right hon. Friend's oft-repeated statement that he wants to make the Bill as narrow as possible and does not want to use an immediate difficulty on which to base an action that goes a good deal wider than is necessary to deal with the immediate difficulty. We are all agreed about that.
I have difficulty in understanding precisely what is meant by "connected with" Northern Irish affairs. Other terrorist groups have been mentioned—the Palestine Liberation Organisation, Baader-Meinhof, and so on. We have to bear in mind that groups with a stated and admitted political aim sometimes recruit mercenary terrorists. The Japanese are notable examples. There are Japanese groups which have acted throughout Europe in support of the PLO and the Baader-Meinhof group. Suppose one of these Japanese groups should choose to act on behalf or to do something that would suit the purpose of, an Irish terrorist organisation. Could it be within the terms of "connected with"? It would be very difficult to establish such a connection in the courts.
It seems to me that when an outrage takes place like a bombing, two people are terrorists and not one—the man who plants the bomb and the man who supplied it. The chap who plants the bomb might be a Turk or a Mexican or an Argentinian who has never professed the least interest in Northern Ireland affairs. He may have done it out of sympathy with the objectives of the bomber; he may have done it purely out of a desire to be awkward to Her Majesty's Government.
We have to ask ourselves what were the motivations that led the Libyans to 790 supply arms for terrorist purposes in Northern Ireland. I do not think that the Libyans cared two pennyworth of cold tea about the liberation of Northern Ireland. All they cared about was they did not like Britain and were supplying bombs to the IRA or other organisations which would be a nuisance to Britain.
In an honestly interrogative spirit, I ask my right hon. Friend: if the Libyans or anyone else difficult to identify supplied bombs to an organisation concerned with Northern Ireland affairs and listed in the schedule, would they be "connected with"? If not, ought they not to be? There is a genuine problem here.
I see something in the view which has been expressed by hon. Members opposite, that the words… and connected with Northern Irish affairs …needlessly limit my right hon. Friend's ability to deal with things which have an impact in Northern Ireland but which he might find difficult proving in the courts are connected with Northern Irish affairs. I ask him to think about whether there is not some substance in this amendment.
§ Mr. Ian Gow (Eastbourne)
I support the amendment and the remarks made by the hon. Member for Berwick-upon-Tweed (Mr. Beith) and the hon. Member for Bethnal Green and Bow (Mr. Mikardo). When the Home Secretary indicated that his advice was that we should reject the amendment, he was in a sense talking against his own Bill.
The Bill is described as the "Prevention of Terrorism Bill", not as the "Prevention of Terrorism (Northern Ireland) Bill". We are, at this stage of history facing a grave threat of terrorism and not only a threat of terrorism linked solely with the affairs of that part of the United Kingdom which is in Northern Ireland. When we are discussing a Bill for the prevention of terrorism, we should not restrict the possibility of proscription simply to that aspect of terrorism which relates to Northern Ireland. I believe that it would be wrong for the Committee to exclude proscription of terrorist bodies which are wholly unconnected with Northern Ireland.
There is a second aspect of the matter to which I draw attention. It would be 791 open for a challenge to be mounted in the courts as to propriety of any action taken by the Home Secretary under Clause 1 (3) if it was suggested that the organisation was not connected with Northern Irish affairs. In order that the right hon. Gentleman can by order add to Schedule 1, presumably he has to satisfy the courts that the organisation which he is seeking to proscribe is, to use the words of the Bill,… connected with Northern Irish affairs".But why should it be right for us to limit the proscription of terrorist organisations just to those which are involved with Northern Irish affairs, and why should we add to the burden and dilemma of the right hon. Gentleman in deciding which order to make proscribing a terrorist organisation and put him in this added difficulty of facing a possible challenge in the courts as to whether the terrorist organisation is connected with Northern Irish affairs?
Finally, the very reference to Northern Ireland seeks to emphasise that division which exists between the United Kingdom and that part of the United Kingdom just across the Irish Channel. We should have just as much revulsion and just as much of a legal weapon against terrorist organisations, for example, in Wales or Scotland or in the county of Sussex.
It is for that reason that I hope the Home Secretary will accept the amendment, failing which I hope that my right hon. and hon. Friends and the hon. Member for Berwick-upon-Tweed will press it to a Division.
§ Mr. Greville Janner (Leicester, West)
The trouble with the views advanced by the hon. Member for Eastbourne (Mr. Gow) and those expressed by my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo) is that it is not a question for the courts to decide whether an organisation is connected with Northern Ireland. The question is one totally for the Home Secretary. The clause reads:The Secretary of State may by order add to Schedule 1 of this Act any organisation that appears to him to be concerned in terrorism …".My worry is not connected with my right hon. Friend, who I am sure will exercise his powers with discretion. He may not always be Home Secretary. We 792 do not know who is to have the handling of the arbitrary powers which we are asked to pass over to whoever may be Home Secretary at any time——
§ Mr. Janner
For a period of six months. But it is a period which could be extended.
These are very remarkable powers to give to a Minister of the Crown, and they are not powers which can be challenged by the courts. They are not even powers which, as under the Industrial Relations Act, a court has even the appearance of being able to challenge. That was the situation which applied where it appeared to the Secretary of State for the Employment that certain circumstances existed where a cooling-off period or a secret strike ballot should be held. In such a case, the courts could consider at least the legality of that. The courts have no power under this Bill. These are arbitrary powers given to the Home Secretary. Therefore, they must be kept as narrow as possible. That is why it is right that they should be preserved as narrowly as they have been made.
Despite its title,Prevention of Terrorism (Temporary Provisions) Bill",this legislation is designed for Northern Ireland. It is made for Northern Ireland. It concerns movement between one part and another part of the United Kingdom. We are being asked to pass this legislation for a particular reason—our revulsion at a series of outrages which have emanated from a particular source. We have just the same revulsion for terrorism from other sources. It may be that one day other measures may have to be taken.
This is a sad evening for Parliament. In my view, we must pass this legislation and give these powers to the Home Secretary. However, as these powers are not to be challenged in the courts, they must be kept as narrow as possible.
§ Mr. Maxwell-Hyslop
There are just two points that I want to add to what has been said.
The hon. and learned Member for Leicester, West (Mr. Janner) made an observation which carries considerable weight. However, we are not concerned 793 only with the Short Title of the Bill. The Long Title reads:A Bill to proscribe organisations concerned in terrorism, and to give power to exclude certain persons from Great Britain or the United Kingdom in order to prevent acts of terrorism, and for connected purposes.There is nothing about Northern Ireland there.
Clause 7(1)(b) provides:A constable may arrest without warrant a person whom he reasonably suspects to be…(b) a person concerned in the commission, preparation or instigation of acts of terrorism".There is nothing about Northern Ireland there.
Clearly, the Bill is brought in to deal with a problem which has been with us for some time but is in its acute manifestation at this moment. To a large measure it is associated with Northern Ireland. But it certainly is not true that all the bombs which have been planted in Britain in the last 18 months have been connected with Northern Ireland. They have not.
If it is right, as I think it is, to give the major power of arrest without warrant in Clause 7 (1)(b)—not connected with Northern Ireland—why is it wrong to give the much less significant power to the Home Secretary proposed in Amendment No. 7? It seems that he is being more concerned about the minor point than the major point.
Since the Bill has been drafted to deal with the problem of terrorism—not terrorism in Northern Ireland—let us not spoil the ship for a ha'p'orth of tar when this is not a hypothetical consideration. There have been bombings in this country recently by bodies totally dissociated from Northern Ireland as far as one can tell. We do not know whether the bombs that went off last night were associated with Northern Ireland. Therefore, it is a pity unnecessarily to restrict the Home Secretary's powers in this respect, bearing in mind that the Bill, when enacted, has a life of only six months unless the House of Commons by affirmative resolution extends it.
I point out that the argument by the hon. and learned Member for Leicester, West would have been stronger if we were passing a Bill which would become part of the permanent law of this country without any further act by the House 794 of Commons or, indeed, by Parliament. That is not the position. The Bill has a limitation. It dies after six months unless and until the Secretary of State asks for an affirmative resolution from the House of Commons.
In those circumstances, it seems to me that there is nothing to be lost in practice and there could be much to be gained because these powers could be used at short notice without the House being recalled during a recess. There is no holiday in bombing because the House happens to be in Summer Recess. The Home Secretary may want these powers when the House is not in session, and he would not have them unless he got Parliament together again just to delete the words that we are now trying to delete by the amendment. I ask the right hon. Gentleman to think again on this.
§ Mr. Stainton
In drafting Amendment No. 6, which is identical in its precise effect to Amendment No. 7, I had three points in mind, and, however repetitious, as the author of Amendment No. 6 I feel entitled to make them now.
First, I was assailed by the wording of the Long Title of the Bill which makes no reference whatever to Northern Ireland. I was very much struck by the point that was made so forcefully by my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop) on Clause 7(1)(b). Presumably the right of arrest is not consequent upon paragraph (a) or (c), and paragraph (b) stands by itself and apart
§ Mr. Stainton
Precisely. There is a later amendment on the definition of terrorism, and I hope that we shall progress to that in due course. I was struck by the specific reference in connection with Northern Irish affairs in Clause 1, and this recurs in Clause 3, to which we shall come later.
There is another point about terrorism in this country arising from activities that may or may not be directly connected with Northern Ireland. How one proves 795 the connection, and what is the meaning of those words, was dealt with acutely by the hon. Member for Bethnal Green and Bow (Mr. Mikardo).
There is a final point that arises out of an article in The Times on 25th November. Let us not debate the lineage of Lord Chalfont, political or otherwise, but, bearing in mind the office that he occupied under the Crown, one must attach significance to his statement. He said:So far we have been comparatively fortunate in that the activities of international terrorism have been isolated and relatively unco-ordinated. There, is however, some evidence of links between various revolutionary organisations.Certainly"—and that is a categoric statement according to my interpretation of the word—in Britain there has been collaboration between the IRA and the extremist organisations totally unconnected with the Irish problem.One does not have a great deal to go on but, in view of the three factors running through my mind and this article by Lord Chalfont, I felt that I had to put down Amendment No. 6—[Interruption.]
§ Mr. Sydney Bidwell (Ealing, Southall) rose——
§ Mr. Stainton
No, and I shall not get stuffed, either. I shall proceed with my comments which I feel are to the point.
§ Mr. Stainton
I had those three factors in mind, and I shall not persist with Amendment No. 6 if I get some concrete assurances on these matters from the Home Secretary.
§ 12.15 a.m.
§ Mr. Roy Jenkins
I am grateful to those hon. Members who have tried to press on me powers that I am not seeking. This is in a sense a self-denying ordinance. I would say to my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo) that it is not a matter for the courts but a matter of what "appears to the Secretary of State". My hon. and learned Friend the Member for Leicester, West (Mr. Janner) put that succinctly.
There is a certain validity in talking of a difference. There is no difference between Clause 1 (3) and Clause 3 (1), but there is a difference between Clause 7 (1), 796 although not the whole of it—paragraphs (a) and (c) are governed by what is in Parts I and II—and Clauses 1 and 3. It is only in relation to Clause 7(1)(b) that there might be thought to be a slight difference here.
The difference is to be explained by the fact that what we are dealing with here is the consideration by myself, or whoever might be Home Secretary, of whether it was right and proper to proscribe an organisation, whereas Clause 7(1)(b) relates to whether or not it is right for a constable to arrest a person whom he reasonably suspects to be… concerned in the commission, preparation or instigation of acts of terrorism".I would consider it more reasonable that I should be allowed to take into consideration the affiliations of the organisation than that a constable should have to make a decision on the spot as to whether to arrest in those circumstances. So, although there is a difference, it is a reasonable difference in relation to the nature of the matter.
I cannot pretend that the Bill could not stand with the amendment, nor even that it would be weakened, but I give the Committee my advice that on balance we should proceed cautiously with these powers. I believe that some people would be more disturbed about them if they were more widely drawn. I am not asking for them to be more widely drawn. It would be unusual to force upon a Minister who was bringing exceptional powers before the Committee powers he did not regard it as right to have.
§ Mr. Hooley (Sheffield, Heeley)
This discussion shows very well the inherent dangers of this type of legislation. As soon as we start legislating proscriptions there is always a danger that people may seek to use the legislation to pursue quarrels which are not directly the matter under consideration. I believe that the Home Secretary is right to define this matter as narrowly and as rigorously as he can in the time available to the House. I hope that amendments like this which seek extensively to broaden the powers that the House wishes to give my right hon. Friend will be resisted.
§ Mr. Norman Fowler
This has been a valuable debate. The purpose of the amendment was to give a warning, which was added to by Members of all three 797 parties. The terrorist threat to Britain is not confined to organisations connected with Northern Irish affairs. We were trying to define the threat. I did not altogether follow the point of the hon. Member for Sheffield, Heeley (Mr. Hooley). Nor were we asking the right hon. Gentleman to add names to the list of proscribed organisations. We were simply asking him to consider whether it would not be better to make it possible to add names if the need arose.
§ Mr. Greville Janner
Is the hon. Gentleman suggesting that the Home Secretary should have absolute arbitrary power to add the name of any organisation he wishes, without challenge from the courts, for the remaining period of six months?
§ Mr. Fowler
No. The hon. Gentleman should study the Bill. The Home Secretary does not have that power even now. I am trying to deploy the case that it might be considered preferable that the Home Secretary should have the power to recommend that those names should go forward.
Having heard what the right hon. Gentleman said, clearly we on this side have no intention of trying to delay the Bill. Of course we recognise that the present danger comes from the IRA, and that is a danger that we most urgently want to guard against. If other terrorist organisations not connected with Northern Ireland affairs appear in this country, I greatly hope that the Home Secretary will come to the House of Commons for further powers.
I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Sedgemore
I beg to move Amendment No. 54, in page 2, line 16, leave out subsection (6).
The amendment is partly a probing one and partly one of substance. Those of us who tabled it are somewhat concerned about why this provision is necessary. We speak only about the law of England. I dare say that there are some Scots who can speak for the other land.
As we understand it, as the law of England stands, if any person is found in possession of such a document and is subsequently arrested, or is arrested and is subsequently found to be in possession 798 of such a document, that would be evidence which a magistrate or jury could evaluate as to its evidential value.
We cannot see that it adds to the existing law to enshrine this in a statutory provision. With all the conceivable types of evidence which may show that a person belongs to a proscribed organisation, why in this clause is one type of evidence singled out and given some special weight and character?
The provision could operate in some curious ways. It will be an offence to be in possession of a document relatingto the affairs of a proscribed organisation",and in Scotland that will be sufficient evidence to show that a person is a member of a proscribed organisation. It follows that if in Scotland a journalist is found to be in possession of a letter from a member of the IRA, that will be sufficient evidence to show that the journalist is a member of the IRA. It may not be conclusive evidence, but it can be described as sufficient evidence of that.
Surely it is not the responsibility of Parliament to give statutory form to something which seems on the surface to be gobbledegook.
It is also possible to visualise this provision operating in a sinister and nasty fashion. It is the easiest thing in the world to push a letter through a postbox and then tip off the police that somebody is a member of a proscribed organisation. Then one goes to that person's house with either an agent provocateur or perhaps a member of the IRA who wishes to cause trouble for someone who either is or is not a member of that organisation. In Scotland the fact that the police find that the person has that letter is sufficient evidence that he is a member of a proscribed organisation. In England the court has it drawn to its attention that there is some weight or character to be given to that evidence.
The last point which concerns me is just how retrospective is the clause. I appreciate that the next subsection enables a person to prove in the face of evidence that he is not a member at the time he is found in possession of the document. But that places the burden of proof on the defendant and not on the prosecution. Are we saying that people who were members of Sinn Fein four years ago have to start burning letters they have received about the IRA? 799 Will the Attorney-General spell out what is behind the clause, because on the surface it appears to have some curious connotations?
§ Mr. Mikardo
My hon. Friend the Member for Luton, West (Mr. Sedgemore) has made a powerful case for the amendment and for the deletion of the subsection, but, powerful as it was, it was an understatement of the case. I want to carry his probing a bit further and ask for a definition of some of the terms used.
What is meant by the phrase "possession by"? At what point does one come into possession of a thing? My hon. Friend said that it is all too easy for someone to put a letter in a pillar box and, while it is being carried by the Post Office, to tip off the police for when it is delivered.
It is also possible to send a letter not by putting it in a pillar box but by pushing it through the letter box of a person's front door. Here I have a question for you, Mr. Thomas, conscious as I am of your wisdom and experience. Suppose I come along early one morning and push a letter through your front door. There it is lying on the door mat. You do not even know it is there. You are busy consuming your corn flakes and reading your morning newspaper. Perhaps it came even earlier. Then, Mr. Thomas, you are lying in your bath singing some ancient Welsh air and the letter is lying on your doormat. Again you do not know that it is there. Is that letter in your possession? You are utterly innocent of it. You did not solicit it. You know nothing about it.
§ The Chairman
Order. I do not like to interrupt the hon. Member, but he is getting me worried. Perhaps he would be kind enough to address his questions to someone who can answer them.
§ Mr. Mikardo
I was selecting you, Mr. Thomas, as the best example in the House of an innocent party. I wanted to make the point that even the most innocent person could be subject to suspicion under the clause.
I selected the most innocent party, but I am always happy to take your advice. I am prepared now to assume that the letter was thrown through the letter box 800 of my right hon. and learned Friend the Attorney-General. There he is in his bath singing some ancient Jewish air and the letter is lying on his door mat. He did not solicit it. He knows nothing about it or its contents. The sender is a stranger to him. Is that letter in his possession? If it is, under this Bill the very fact that the letter is lying on his doorstep while he is in his bath is sufficient evidence that he is a member of the Provisional IRA.
Let me take another case of possession. Suppose my right hon. and learned Friend is walking along the street and someone, some "un-pickpocket"—unlike a pickpocket who takes something out of one's pocket—puts a letter into his pocket. Is it then in his possession? If anyone thinks that I am being theoretical about the possibility of someone putting a letter into the pocket of an innocent party I would remind my right hon. and learned Friend that it is not so many years ago since a police officer put a half brick into the pocket of someone who subsequently came very near to "getting it in the snitch" as a result. So it is possible for some ill-advised and ill-intentioned person to put a letter into the pocket of an innocent party. Will my right hon. Friends tell me whether that constitutes possession under the terms of this subsection?
So much for possession.
I want now to do a little more probing about:addressed to him as a member of a proscribed organisation".To my simple mind—I am not a lawyer and do not understand legal language—that could have two interpretations. Suppose a letter is addressed to my right hon. and learned Friend as "Mr. S. Silkin, member of the Provisional IRA." Is that addressed to him as a member of the proscribed organisation? I would think that that is one possible interpretation of this subsection. That would be all right, but in common sense the phrase could also be valid if it said "Mr. X, member of the Provisional IRA" whether or not he were a member. It is still addressed to him as a member of that organisation. Therefore, some malicious, ill-intentioned person has only to pick a victim and address a letter to him by 801 mail and describe him as a member of this organisation for that to be sufficient evidence under this clause that he is a member of that organisation.
Or it may not be addressed to him as a member of the organisation. It may be addressed not to "Mr. S. Silkin, member of the Provisional IRA". It could be addressed to him just as "Mr. S. Silkin" but it might relate or purport to relate to the affairs of a proscribed organisation. There is some young university student who is doing a thesis on subversive organisation in Northern Ireland. She sends my right hon. and learned Friend a copy of this thesis and says "I would appreciate your comments on this piece. I have written relating to the affairs of the Provisional IRA." It is clear that the intention of this subsection is not to cover that. But we have to deal with the words not according to their intention but according to their meaning. There is no doubt that this young lady's thesis relates to the affairs of the proscribed organisation. The fact that my right hon. and learned Friend has it in his possession is enough. He did not ask for it. The fact that it is in his possession is evidence, or in Scotland "sufficient evidence", that he belongs to the organisation.
We all get a lot of unsolicited mail from a lot of organisations. Suppose the organisation named in Schedule 1, or any other organisation which may be added by order from time to time, circulates all hon. Members asking for support. If that were to happen every one of us would be in possession of a document emanating from a proscribed organisation. That could be taken as evidence that we were members of a proscribed organisation. I am a member of at least 743 organisations that write to me regularly seeking support for their cause. I could be placed in some difficulty.
That is not the intention of the Bill. Any sensible man would realise that, but we have to deal, as we have been told repeatedly by our seniors and betters in the House, not with intentions but with what words mean. If we consider the matter in that way we must realise that these powers are so wide as to be terrifying. A little while ago my right hon. Friend was saying that with the consent and approval of the Committee it was terribly important to keep this Bill as narrow as possible. This subsection is 802 not narrow. It is as wide as 10 barn doors laid side by side. The exercise of these powers could go very much wider than anything which we have been told is the Government's intention.
I am all for dealing with terrorists but I am not for a situation in which innocent people can be labelled by the action of others to be terrorists. This is a charter for the informer, for the snooper, for the malicious man of ill-will who has a grudge against another bloke. I support the amendment on those grounds. I hope that the Government will accept it, but if they do not, I hope that the amendment will be pressed and carried.
§ Mr. John Mendelson (Penistone)
We have now reached the first major occasion when hon. Members who have supported and are supporting the principles of the Bill—and I have urged the Government to go forward with emergency legislation—must begin seriously to question the Government on whether what they are doing is necessary. My argument is slightly different from that of my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo). I believe that by putting absurdity on top of absurdity I may make it easier rather than more difficult for my right hon. Friend to reply.
I do not believe that many of the dangers that my hon. Friend pointed out are realistic. I do not believe that this subsection is designed to facilitate snooping into the correspondence of hon. Members or of most people. I do not believe that the danger of planting such a document is very real. I agree that in the past other things have been planted. That is why we are dealing with a serious matter. However, I do not believe that we are dealing only with the planting of a document—for example, a letter. There are other weightier matters.
Why do the Government want the subsection that my hon. Friend the Member for Bethnal Green and Bow rightly seeks to remove? That is the burden of the case that the Government have to answer. If somebody is suspected of possibly being connected with the IRA, and if a document of this kind is found in his possession, it will be regarded as an important part of the evidence. But, clearly, the Home Secretary wants to be absolutely sure that he asked for only the minimum powers.
803 If that is the principle underlying my right hon. Friend's approach to these matters, why introduce the subsection? Membership of an organisation like the IRA is not like being a member of one of the major political parties or of a stamp-collecting society. So far as we know, members of the IRA do not conduct their business by writing each other letters about the kind of attack they wish to prepare. That is not the way in which IRA members operate. It would be much simpler for the police if they did operate in that way.
It is more likely that there are other more substantial pieces of evidence which the Government or the police authorities would seek to use to mount an indictment against a person or group of persons. On the other hand, if there is no such serious case to be made on this provision alone, there could be harm in having the provision in the Bill, although it may be regarded only as potential evidence additional to other pieces of evidence available to the police authorities. Therefore, unless there are powerful reasons for acting otherwise, the Government would be well advised to strengthen their position by adopting the amendment.
§ Mr. Patrick Mayhew (Royal Tunbridge Wells)
I wish to try to allay some of the fears expressed by the hon. Member for Bethnal Green and Bow (Mr. Mikardo). I believe that the important words in the provision are "shall be evidence". The hon. Gentleman sought to raise the horrific possibilities of what would happen when letters arrived on the doorstep of the Attorney-General while in his bath. Would the right hon. and learned Gentleman be "in possession"? Would he be guilty under the subsection? The answer is that he would not be.
The important point is that the provision does not say "shall be conclusive evidence". If it were conclusive evidence, in those circumstances no answer could be advanced by the Attorney-General, but I emphasise that the clause as drafted talks of the fact that there "shall be evidence". That means that the Attorney-General or anybody who in those circumstances finds himself the subject of prosecution can rebut the proposition that he is a member of a proscribed organisation. In those circumstances it is beside the point to say that without 804 knowledge he would not be guilty of possession. It is not conclusive and is, therefore, rebuttable. The Attorney-General would have no difficulty in rebutting the proposition, and I suspect his answer would be "We are dealing with a difficult and urgent situation".
I would not wish to see this provision in an ordinary piece of criminal legislation. However, we are dealing not with ordinary legislation but with legislation designed specifically to deal with an urgent situation. Therefore, I believe the dangers raised by the hon. Gentleman in moving the amendment are fantasies and do not represent a real danger to the citizen.
§ 12.45 a.m.
§ Mr. Alexander W. Lyon
My hon. Friend the Member for Luton, West (Mr. Sedgemore) raised an interesting question about the subsection. The point he made is perfectly valid. We are dealing here with a new offence of—in shorthand—belonging to the IRA. How does a court establish that a man brought before it belongs to the IRA? Any kind of admissible evidence may be used to establish that fact: direct evidence that he has asserted that he belongs to the IRA, for example, or evidence that he has paraded in company with IRA under an IRA banner. There could be evidence that he had addressed a meeting of the IRA.
All that evidence is only prima facie evidence. In every case where it is brought before the court, it is subject to rebuttal by the man himself giving an innocent explanation of his actions which is acceptable to the court. In fact, I put it too strongly. If the innocent explanation leaves a doubt in the mind of the court, he does not have to explain it away completely. If it leaves a doubt in the mind of the court that he is a member of the IRA, he cannot be convicted.
§ Mr. John Lee (Birmingham, Handsworth)
My hon. Friend uses the phrase "sufficient evidence", which at least as far as Scottish law is concerned seems to rebut the point made by the hon. and learned Member for Tunbridge Wells (Mr. Mayhew).
§ Mr. Lyon
Not being expert in the law of Scotland, I have taken advice about that matter, and I understand that the 805 phrase in Scottish law "sufficient evidence" does not mean what it means in English. It means admissible evidence, which may be rebutted and which, if not rebutted, could incriminate. I would have said that that was exactly the same as "prima facie evidence" in English law. But I understand that I must not use that phrase about it. It means roughly the same as I have indicated.
In those circumstances, my hon. Friend the Member for Luton, West is probably on to a valid point in saying that if there is found upon the person who is accused of being a member of the IRA a documentaddressed to him as a member of a proscribed organisation, or relating or purporting to relate to the affairs of a proscribed organisation, or emanating or purporting to emanate from a proscribed organisation",prima facie one would think that it could be evidence. The only reason for the subsection is simply to put that matter out of any doubt and out of an abundance of caution to indicate that it is evidence. It is evidence only prima facie, and it can be rebutted by the man.
If I may turn to the amusing speech of——
§ Mr. Douglas-Mann
Is my hon. Friend suggesting that, in the absence of a clause such as this, the possession of letters or—to be fanciful—a membership card of the IRA or any other documents of that kind would not be admissible? I am sure he is not suggesting that they would not be admissible in court. Therefore, if we include a clause of this kind, the courts will assume that it must have some meaning, and the implication of that meaning is that the evidence will be conclusive as distinct from merely prima facie.
§ Mr. Lyon
It would be a perverse reading of the language of the subsection to say that it is conclusive. It is quite clearly not conclusive. It states that the possession of the document "shall be evidence", but it does not say that it shall be conclusive evidence, and it is not intended that it should be conclusive evidence. The only purpose of putting the subsection in is to make it clear that possession of the document can be prima facie evidence.
I take the point just made by the hon. Member for Mitcham 806 and Morden (Mr. Douglas-Mann), that in ordinary circumstances such documents would be admissible anyway as evidence. There must surely be some overriding purpose in enshrining this matter in the subsection.
§ Mr. Lyon
It may be that the hon. Gentleman is right in saying that the court would in any circumstances regard this as prima facie evidence. All that the clause is intended to do is to put that part of the argument out of doubt. I do not accept the argument put by my hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann), that this could be in any sense conclusive evidence. It is clear from the clause that it could not. In those circumstances, there is no danger other than the danger referred to by my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo).
§ Sir Michael Havers (Wimbledon)
I am concerned about this, because the words are very similar to words used in the Emergency Provisions Act. If it is said that the expression "evidence used simply as evidence" used in the House by the Minister means "prima facie evidence", which is a term of art, that will be understood by many courts to mean very much more than evidence by itself. Prima facie evidence, as I understand it, is evidence which, if not rebutted, can satisfy a court in order to enable it to convict.
§ Mr. Lyon
The hon. and learned Gentleman is absolutely correct. The weight of the evidence is a matter to be assessed by the court, and the determination of whether it is a prima facie case is a matter for the court. I accept that I have gone too far in suggesting that the piece of evidence in itself would mean that the court would accept that a prima facie case had been made out. It is evidence, and that is all.
When I fell into error I was seeking to distinguish it from a phrase used about its being conclusive evidence. It is only a matter that can be put before the court in order that the court may assess whether there is a prima facie case calling for an explanation from the accused.
§ Mr. Ivan Lawrence (Burton)
If the hon. Gentleman is saying that "shall" does not mean a prima facie case, the 807 "shall" should read "may". If it means "may", the subsection means no more than would already exist in the law without the subsection.
§ Mr. Lyon
All that it means is that it could not be said that when the document is sought to be introduced as evidence it is not inadmissible. It may be that the normal law of evidence in any case is wide enough to cover those matters. All that is suggested in the subsection is that to put it out of any doubt this is what the document is in fact. It is a piece of evidence that may be put before the court. [H Ms: "Shall."] It is a piece of evidence that may be put before the court. When it is, it shall be evidence, but that does not mean that it is conclusive evidence.
§ Several Hon. Members rose——
§ The Deputy Chairman (Mr. Oscar Murton)
Order. We cannot have six, seven or eight hon. Members on their feet at once.
§ Mr. George Cunningham
Some of us are concerned in case the existence of the provision, although in the Government's eyes it only makes clear the present position, should be held by the court to be an advance on the position as it would be but for the subsection. There is a perfectly common and normal way of dealing with the situation, by inserting the words "for the removal of doubt". If the words "for the removal of doubt" were inserted, no court could hold that the existence of the subsection was intended to advance the position further than the most generous interpretation which could be put on it without the subsection being there. If it were possible for the Government to go along those lines by making an amendment in another place, since there is not one to that effect on the Notice Paper—[hon. Members: "What about Report?"]—or on Report, some of us would feel more satisfied.
§ Mr. Lyon
I will consider the matter before Report, but the position is as I have indicated. It is simply a question of establishing whether the evidence is admissible in a case in which a man is charged with being a member of the IRA.
I come to the point raised by my hon. Friend the Member for Bethnal Green 808 and Bow about whether a person is in possession of a piece of evidence even though he does not know that it has come on the premises which he occupies. As I understand the law, that is not possession of the material evidence. There must be knowledge, and it has come into the control of the person in whose possession it is said to be. Therefore, it would have to be shown that it was within his control and that it was within his knowledge that it was within his control. In those circumstances, it would rule out most of the suggestions which have been made by my hon. Friend.
§ Mr. Lyon
My hon. Friend refers to the half brick. It is always possible for a corrupt policeman to frame people with evidence which he has planted on them. But we are not able to defend ourselves against the corruptibility of a police officer in those circumstances except by the process of the ordinary criminal trial. But the process of the ordinary criminal trial will apply to this charge just as much as it applies to any other criminal charge. The burden of proof will be on the prosecution. It will be open to the accused to say "This evidence was planted upon me", and it will be open to the court, having heard all the evidence, to say that it has a doubt about the matter.
§ Several Hon. Members rose——
§ The Deputy Chairman
Order. We cannot have four or five Members intervening at once. Perhaps the Minister would care to indicate to which hon. Member he wishes to defer.
§ Mr. Ron Thomas (Bristol, North-West)
Most of my hon. Friends have been discussing what happens when someone who finds a letter in his possession comes before the court. We should be concerned with the fact that he can be detained for a number of days. Is that the case? Two days may be extended to five days. The person may be in custody for a fair amount of time before the Court hears the evidence against him.
§ Mr. Lyon
If the police have admissible evidence which they wish to advance 809 to prove that a man is a member of the IRA, they have the power to arrest and to hold for a period in pursuance of that arrest. What my hon. Friend is saying is that it may be possible in certain circumstances for a man to be held when he is completely innocent of the charge. That is the position in criminal law in relation to almost any offence. The only check against that is that if the police use their power arbitrarily in that there never was any reasonable ground for suspecting that a person was a member of the IRA, there are means of checking the police. But in relation to evidence which is clearly admissible which may be produced to show that a man is a member of the IRA, yes, that is true.
§ 1.0 a.m.
§ Mr. Tom Litterick (Birmingham, Selly Oak)
I am not a lawyer, which may be a relief to hon. Members in the light of the events of the last half-hour, but the Minister seems to have been guilty of the sort of inanity, or, indeed, insanity, that only lawyers fall into.
We are all aware that the Bill gives the police certain powers which in terms of our traditions are frightening. We are all aware that a person can be arrested merely on a hunch—a feeling—on the part of an individual police officer. But it is wide of the mark to say that that is not terribly important, because a document can be read and reasonably understood.
Most policemen are ordinary men who may not know the difference between a Seventh-Day Adventist and a Fascist and might, by construing a printed document, wrongly take a man into custody. We have to think in terms of the climate that would inevitably be created by the Bill. The man is taken into prison. What happens to his family? People will say "There is no smoke without fire. He has been away in the pokey-hole for the last five days. There must be something up. Let us go and smash his windows." Then on the sixth day the police let the man go and say "We are sorry; we made a mistake. The officer did not understand dialectical materialism" or "the theology of a weird religious sect." All this time the wife is being driven mad and the children are being terrorised. That is what can happen because a man is arrested on the misconstruction of a piece of paper.
§ Mr. John Biggs-Davison (Epping Forest)
The Minister of State speaks soothingly, but he has failed to convince several hon. Members, and he will have perceived that the disquiet is not confined to one side of the Committee. Speaking as another non-lawyer, I should like to ask him this question, stupid though it may appear. If the purpose is to state that this kind of documentary evidence may be used in evidence against a person arrested in this way, why is it necessary to specify that particular form of evidence and not other forms of evidence?
§ Mr. Ivor Clemitson (Luton, East)
I wish to support the hon. Member for Epping Forest (Mr. Biggs-Davison) on that point. The Minister of State told us that the evidence referred to in subsection (6) is prima facie evidence, and he illustrated several other kinds of prima facie evidence. In all logic, we should state either all the forms of prima facie evidence or none. The singling out of one kind of prima facie evidence suggests strongly that that evidence is to be treated as superior to other forms of evidence. That is the nub of the problem.
§ Mr. James Kilfedder (Down, North)
I agree with what has been said by the hon. Member for Epping Forest (Mr. Biggs-Davison). The clause signifies that if a person has physical possession of a document he has the onus of proving that he did not know it was in his possession. The onus is shifted on to him by the prosecution.
Then there is the question of the word "shall". Subsection (6) reads:The possession … shall be evidence … of that person belonging to the organisation …".That means clearly, in my judgment, that once again we have a case where a person is to be found guilty unless he can prove that he is not a member of the organisation.
§ Mr. Kevin McNamara (Kingston upon Hull, Central)
I, too, am somewhat concerned about this clause, and in particular about the explanation given by my hon. Friend the Minister of State. As my hon. Friend went through defining and re-defining, withdrawing and qualifying, I ended up with subtractions and additions of what he said—in effect, that "the possession by a person of a document addressed to him as a member and which may be produced in court, and so on, 811 shall be evidence."I understand that that is a gloss of what my hon. Friend is putting on the words, but it is indicative of the confusion he is showing, in that he does not understand, and presumably the Government do not understand, what they are trying to do and achieve in the clause.
If the Government do not understand it and have become confused with the explanation, it is fair for us to say that if they, with all their wealth of brains and intelligence and advice do not understand it, we on the back benches are entitled to be slightly confused and somewhat diffident about the clause.
We have had it suggested that a wife might go mad while her husband was in the pokey-hole, with the children being terrorised. But there is more to it than that even. It has more sinister overtones. Suppose a chap has a copy of one of the published organs of one of the Irish republican armies. He might have found it and picked it up. But his name might be Michael O'Hara or something like it. Suspicion falls on him when there is a swoop on a pub of the kind we had in London recently, when a dozen men were stood up against the counter and searched. He is then detained. Normally, he could be held for only 48 hours. But under this Bill he can be held seven days. The Home Secretary will say, "We found this man in a well-known dive for Irishmen in London with a copy of a newspaper in his pocket which he may or may not have known he had in his pocket, and we have to make further inquiries."
Perhaps the chap has just landed off the boat, or has come on holiday. Inquiries are made and he is released. But by chance he is found the following day in another pub with perhaps a leaflet he has had pushed into his hand by the IRA. This time he becomes a candidate for an exclusion order because, although the authorities cannot pin anything on him, the last time they had him they had him on suspicion of being a member of the IRA because of a document in his pocket.
It is quite true that, as the law stands at the moment, possession of documents can be used in evidence. They may be indicative of a person's state of mind or of his loyalties. It is open to the person so charged, as the law stands, to 812 rebut that kind of evidence. If that law was satisfactory when we had members of the UDA on trial in Scotland on sufficient evidence that these were documents that they had in their possession, and when we had various people associated with the IRA and other organisations in this country with evidence produced of possession of documents indicative of their loyalties, why do we need this additional clause, the meaning of which even Ministers do not appear to understand?
Is not this a situation where judges, seeing provisions now enshrined in emergency legislation, in certain circumstances on a given issue are bound to say, "This is to be interpreted conclusively as evidence of membership"?
§ The Secretary of State for Northern Ireland (Mr. Merlyn Rees)
Perhaps the Committee will find it of some assistance to hear my own experience in Northern Ireland with the Northern Ireland (Emergency Provisions) Act, due soon to be renewed and being looked at by the Gardiner Committee. Section 19(6) is, word for word, what the Committee is now debating in the context of this part of the United Kingdom.
I find myself living with the Emergency Provisions Act, especially as it affects detention, on a day-to-day, night-to-night basis. The signature on the document ordering detention is mine and mine alone, and the decision is mine in the executive sense in which the ICO is first signed, before it goes to commissioners, who are lawyers, who listen to the arguments deployed and then take the decision on my signature.
The aspect of membership of a proscribed organisation is one part of the evidence for detention. It is one part of the evidence for going through the court. The matter is considered carefully, because of concern with this aspect. That is why the Gardiner Committee, an eminent body of lawyers, is looking at the question.
In putting the case for proscription in this country, my right hon. Friend the Home Secretary has expressed it in the context of public opinion and what the public will think about a proscribed organisation parading, and so on. I deal with it in a different context in Northern Ireland. I deal with it in the context of detention, and evidence of membership in that sense.
813 In my experience, in a large number of cases membership of a proscribed organisation—not in the context of what the public think or how it looks—is only a make-weight. The evidence of someone going against the law whether it be that of detention or otherwise—is always far more weighty than membership of a proscribed organisation—[Interruption.] I hope that hon. Members will listen. If practical experience in Northern Ireland from day to day is not a matter that the Committee ought to take into account, it is a sad state of affairs. [An HON. MEMBER: "It is irrelevant."] It is relevant. This whole matter of proscription and of offences against the state is being looked at by the Gardiner Committee. [Interruption.] This evidence is relevant because this legislation, if it becomes law, will be used in the same way as in Northern Ireland. I think that we should take that into account.
§ 1.15 a.m.
§ Mr. Rees
I will give way, but I should like to make this point first. The whole matter is being looked at by the Gardiner Committee. I can only tell the Committee that in the sense in which the argument is being deployed tonight, this aspect has never crossed my path, living, as I do, with this problem from day to day. I hope that this aspect will go through tonight with the understanding—[HON. MEMBERS: "No."]—that the whole matter, not only in the context of Northern Ireland, is being looked at.
§ Mr. McNamara
We are not dealing with an executive decision taken by my right hon. Friend whether to make out an ICO which can put a man behind bars for 28 days, and possibly longer, without trial, depending whether the commissioners are available. We are dealing with a different context. My right hon. Friend, having gone there, is exercising an executive function, and the court is exercising a judicial function under the terms of the statute. For my right hon. Friend to suggest that he should be commenting on judicial functions of the judiciary in Northern Ireland and the way that they take decisions on evidence is regrettable. We have always accepted that he took an executive decision, but he is now saying that this, which is a 814 matter for the DPP. is a matter in which he cannot intervene and decide what evidence is admissible. My right hon. Friend should not make statements like that.
§ Mr. Alexander W. Lyon
May I intervene to try to help the Committee? The interpretation of this subsection is, as we understand it, the one that I have given to the Committee. It is clear that there is a good deal of ferment as to whether the reference to specific evidence will mean that in any prosecution it would carry greater weight than any other evidence that might be introduced to prove membership of the IRA. The point was specifically put by my right hon. Friend when he said that if there is a specific reference to this kind of evidence, it will appear to the court to mean that it is either conclusive or prima facie evidence.
I will undertake, before Report, to see whether we can devise a form of words which can be put into the clause which will make it absolutely clear—[HON. MEMBERS: "Take it out."]—that there is no intention to give extra weight to this kind of evidence rather than to any other kind of evidence which might be admissible. If it proves impossible to do that. I undertake to discuss with my right hon. Friend whether it would be possible to withdraw the subsection so that we can deal with the matter in a way that commends itself to the Committee.
All I am suggesting is that this approach would at least meet that part of the anxiety of the Committee that relates to a real fear that this kind of evidence might be given undue weight in any prosecution over any other kind of admissible evidence. In those circumstances, I hope that the Committee will feel that we can now make progress.
§ Sir M. Havers
It may be best, when one finds the Minister of State buttressed as he is by the Attorney-General and the Lord Advocate, and knowing as I do that the present Solicitor-General took a strong part in the debate on identical words in Committee a year ago on the Northern Ireland (Emergency Provisions) Bill, to suggest that instead of the 815 poor old Minister of State being in this trouble he should be assisted by one of the lawyers flanking him.
§ Mr. J. Enoch Powell (Down, South)
I understood the Minister of State just now to give an undertaking to the Committee of what he would do on Report.
§ Mr. Powell
That is a point I thought worth clearing up. But, since this undertaking has been given to the Committee by the Minister as a ground on which the amendment should be withdrawn, are we to understand that at least one amendment will be made to the Bill in Committee so that there is a Report stage?
§ Mr. Douglas-Mann
May I echo the words of the hon. and learned Member for Wimbledon (Sir M. Havers) and invite the Attorney-General to give the Committee the benefit of his advice specifically on whether he has come across in various judgments of courts the phrase, "Parliament would not have inserted that provision if it did not intend it to have some meaning"?
We have been told by the Minister of State that this subsection is included for the avoidance of doubt. I do not believe that the subsection is necessary if all it means is that the evidence is admissible. It is, therefore, inevitable that the courts will add a different meaning.
The situation is different when my right hon. Friend the Secretary of State is making a decision in a case that comes before him. He is the only judge in that instance. These cases will be decided by the courts. I am sure the Attorney-General will confirm that courts must attach some weight to subsection (6). We are assured that it has no meaning, that the evidence is admissible anyway and that we do not need the subsection to make it available. I urge my right hon. Friend to accept the feeling of the Committee and withdraw the subsection.
§ The Attorney-General
We undertake to look at this subsection between now and Report. The right hon. Member for Down, South (Mr. Powell) asked whether there will be a Report stage. I think that there may have to be one because certain amendments are necessary at a later stage of the Bill and will be made 816 in due course. But that in no way qualifies or alters the undertaking that, in the meantime, we shall be looking at the wording of subsection (6) in the context of both the Northern Ireland (Emergency Provisions) Act and the Bill. The wording is the same, and to a large extent it is dealing with a similar situation. Subsection (6) deals with the difficult situation of proving that a person is a member of a proscribed organisation. We will look at the matter before Report, but at this stage I understand the subsection to make it clear that certain pieces of evidence are not conclusive evidence but evidence that a court will accept as tending to show membership of a proscribed organisation.
Different weight would be likely to be given by a court, both in the absence of the subsection and in the presence of it, to different matters which are here set out. For instance, if a person is in possession—my hon. Friend is right to say that that implies some act of control—of a document emanating from an officer of a proscribed organisation, who might not be named as an officer but might be proved to be, the subsection says that that is some evidence to show that the person possessing the document is a member of the organisation.
I may be asked why, in that case, it has been thought necessary to include various other situations in respect of which the subsection provides that those situations are evidence of membership. The answer is that if one did include those situations about which a court might feel that there was some doubt or that the evidence was not strong and left out the others, that would throw doubt on the validity of bringing in evidence those other situations which would be left out of the subsection.
In other words, this is a code of circumstances of similar character each of which is to be regarded by the court as some evidence that the person who possesses the document is a member of the proscribed organisation. It is in that sense a valuable subsection, in the same terms as the Northern Ireland (Emergency Provisions) Act. If it were amended or withdrawn, there is a real danger that the equivalent subsection in the Northern Ireland (Emergency Provisions) Act would be placed in doubt so far as its construction was concerned. 817 [HON. MEMBERS: "Ah!"] My hon. Friends seem to think that I am putting that forward as the reason for its being there. I am merely putting it forward as one of the possible effects of amending or leaving out the subsection.
I must advise the Committee that this is a useful subsection, but I have said that we will look at it again. I am advised by my right hon. and learned Friend the Lord Advocate that it is not merely useful but essential for Scotland, because the words "sufficient evidence" bear a somewhat different meaning in Scotland from the meaning they bear in England. If it is accepted that the words are essential for Scotland, we must have this subsection in that context as well as in the context of the English law.
§ Mr. Leon Brittan (Cleveland and Whitby) rose——
§ The Attorney-General
In view of that, the Committee would be wrong to exclude this subsection. I hope that the Committee, will accept the assurance which has been given that between now and Report the subsection will be looked at again to see whether either any improvement can be made or it is really necessary, as indeed I believe it to be, but some members of the Committee obviously take a different view.
§ Sir Michael Havers
I hope that the Attorney-General will accept that I agree with what he has said. He has spoken of considering an amendment and considering any other course. I hope that he will not be discouraged by the fact that in June of last year he voted to remove the identical wording from a clause in the Northern Ireland (Emergency Provisions) Bill, and he was supported by the present Lord Chancellor, the present Solicitor-General and the present Secretary of State for Northern Ireland.
§ The Attorney-General
I assure the hon. and learned Gentleman that of course that will be one of the considerations that we shall have in mind.
§ Mr. Greville Janner
I am doing the best I can as a miserable lawyer to understand what my right hon. and learned Friend the Attorney-General said, but he appeared to adduce two arguments which 818 were totally inconsistent. The first was that the subsection is necessary to make it clear that the documents are evidence. In other words, the documents are evidence already and this subsection merely makes it clear. The second argument was that different weight is given to the evidence if it is in than when it is not in. It will be given such weight as the court thinks fit if the court comes to consider it at such time as the court comes to consider it, which it probably never will.
My right hon. and learned Friend then said that the matter will be considered before Report, but as he cannot at this stage even guarantee that there will be a Report stage there is only one answer, and that is for the subsection to be deleted.
§ Mr. Brittan
I was seeking to intervene to ask the Attorney-General to clarify his observations, but as he would not give way to me I must do it in this form.
The right hon. and learned Gentleman said something which seemed to me to be entirely inconsistent with everything that was said before by other right hon. and hon. Members. He used the word "code". He said that the various possibilities had to be included in the clause, and not merely the possibility of a document emanating or purporting to emanate from a proscribed organisation, in order that there should be a code.
If that means what it is normally understood to mean, it means that the only way of proving membership of the IRA or any other proscribed organisation will be by reference to the matters specified in the subsection. If it does not mean that, it means that the use of "code" is inappropriate. That, too, requires clarification before it is accepted.
§ The Attorney-General
I had intended to give way to the hon. Gentleman, but the hon. and learned Member for Wimbledon (Sir M. Havers) rose and I gave way to him. I referred to a code of circumstances of a similar kind. It is true that there may be proof of somebody marching with the IRA, which would be totally different. Here we are dealing with the question of possession of a document, and the subsection seeks to set out the circumstances in which possession of a document may be used in evidence against a person who is alleged to be a member of a proscribed 819 organisation. It is not a question of parts of it being unnecessary. The whole point, as I understand it, is that if one part of it or more than one part were left out and other parts were put in doubts would be cast upon whether a situation then excluded from the clause was one which could be used for the purposes of evidence.
Mr. John Meadelson
Will my right hon. and learned Friend the Attorney-General now accept that, quite apart from the point made from the Opposition Front Bench about previous views held, it has now clearly emerged that those views and doubts were based upon similar considerations to those expressed this evening? Will he also accept that my right hon. Friend the Secretary of State for Northern Ireland, trying to help the debate, has shown up a clear distinction between the problems he has to face and the legislation that is now before us in that he has to make executive decisions and we have to give instructions to the whole legal process of the country?
Has it not also clearly emerged that, without the subsection which the amendment seeks to delete, if evidence was found in the possession of a suspected person—correspondence, letters or notes which, in addition to other things, directly related to a criminal case—the court would take note of that correspondence? Therefore, the process of the law would not be deprived of such evidence where it was supplementary to other suspicions and other grounds for legal action.
In view of that, and bearing in mind that there is a great deal of opinion in support of this interpretation, would it not strengthen the whole purpose of the Bill and my right hon. Friend's intentions to accept the amendment?
§ Mrs. Audrey Wise (Coventry, South-West)
Many of us would like to make clear that we are not asking for the subsection to be taken away and looked at by anybody. We are asking for it to be deleted. It is already being looked at now by the Committee, and with some difficulty.
I was impressed at the way the speech of my right hon. and learned Friend the Attorney-General was peppered with the phrase "as I understand it". That seems to be a qualification. But how will 820 other people understand it? It is clear from what has been said by hon. and learned Gentlemen on both sides of the Committee that evidence of the kind described in the clause is evidence just the same with or without this subsection. That is crystal clear even to the slowest of us.
We have had a list of the certain kinds of evidence which could be accepted. An example is where someone says that he is a member of the IRA. That would be perfect, of course. But it also includes demonstrating, marching or addressing a meeting. That worries me when I think of the number of meetings I attend without being a member of the organisation holding the meeting.
There is one common characteristic. They are active pieces of evidence. The very item which is singled out for special attention is a passive kind of evidence, where the person is a recipient of something. He is not doing something—marching, demonstrating, singing—but just receiving something, possibly unwillingly. Why single out this kind of thing and give it such superior weight? If that is not the case, why not bow to the fears of of my hon. Friends and take the subsection out? If it is not effective, why are we sitting here for hour after hour? If it is necessary, what does it do? If it does not make it better evidence than other kinds of evidence, what docs it do?
The Attorney-General says that it is useful. For what? That is the very thing which has not been established by all the words that have been spoken. I could think of a few things for which it could be useful. It could be useful to enable someone of malicious intent to send a letter or document to someone called not "S. Silkin, Esq." but someone called "O'Hara", "O'Higgins" or "O'Dowde" who has perhaps expressed certain legitimate criticism of Government policy in relation to Northern Ireland. What is to stop such a person who is uneasy about policy in Northern Ireland from being the unwilling, unwitting, passive recipient of something of this nature?
We have been told about the Gardiner Committee looking at things that are not relevant to this debate. We have been promised that Ministers will take this away and look at it. We have looked at it. We do not know what "purporting to emanate" means and whether it has 821 sinister overtones. We are told that it is useful, but we do not know for what. We are told that it makes it clear, that it is evidence but not superior evidence, and it would be evidence anyway. If my right hon. and hon. Friends want to get this Bill, if they want to make progress, I would seriously urge them to withdraw this subsection.
§ Mr. Lawrence
The Committee has been treated with a little less than proper candour by the lawyers on the Government Front Bench. What the lawyer means by "possession" is different from what the ordinary layman means by that word. Surely the purpose of the subsection is to avoid what would otherwise be necessary in a court of law; namely, the necessity to prove a knowledge that the article concerned was in the custody or control, or on the premises of, the accused person. That is why the subsection has been drafted, so that it is not necessary to prove guilt, to establish that which it is most difficult to establish: namely, guilty knowledge of the article. That is what this is all about. If the Government Front Bench lawyers had been candid enough to tell us perhaps this matter might have been settled a long time ago. It seems that there are many Labour hon. Members who do not want this subsection because it takes away the necessity of proving guilty knowledge.
§ 1.45 a.m.
§ Mr. William Craig (Belfast, East)
Earlier yesterday we had a sense of urgency in dealing with this grave emergency. We have witnessed much head-scratching to prove that the clause is of some value to the Bill. We have also witnessed some head-scratching to prove that the clause is harmful and could cause hardship. The only safe conclusion we can safely draw is that there has been much head-scratching. On the other hand, we have some experience of the clause in Northern Ireland, where it has been enacted. The Secretary of State rightly reminded us of that.
It can fairly be said that the clause has not proved to be of much value in Northern Ireland. It can also be said with certainty that it has not done any harm or caused any hardship. In this situation of great urgency, is there any real reason for not accepting this measure and passing on to something else?
§ Mr. George Cunningham
We are considering this serious Bill against a serious background in which a lot of people lost their lives and a lot more people were maimed. Whatever the disagreements, we owe it to ourselves and to the country to conduct ourselves with a degree of decorum.
The Government Front Bench has hardly distinguished itself in presenting the case for the subsection. I suspect that there is, if not a better case, at least a clearer case than that which has been presented. We owe it to the country not lightly to brush aside anything which might conceivably be of assistance. We have been given the assurance that there will be a Report stage. [HON. MEMBERS: "No."] I understood the Attorney-General to say that in the Government's view certain amendments were required. We all know in practice that if the Government want some amendments one at least will be carried and that there will be a Report stage. That is how I understood the situation.
If we are to have a Report stage the deletion of this provision could be effected on Report as well as now. I suggest that we pass on and that on Report the Attorney-General reads out the best possible case that can be put for the subsection. It is always best for Ministers to start by reading a brief. On the basis of the best possible case that can be presented, the House could then decide whether to retain the subsection or to get rid of it. That course would allow us to pass on to other much more serious parts of the Bill. Whatever else can be said about the clause, the difference between having it in and not having it in is not great when considered in terms of civil liberties. It is important but it is narrow. Let us move on to the other amendments and look at this again on Report.
§ Mr. Roy Jenkins
I very much agree with the opening remarks of my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham). The Committee is bound to come under strain as time goes on, and it is natural that we should get a little light-hearted, although we are serious about this matter. The Bill arises out of very serious circumstances indeed.
823 We have decided to take these measures for we regard them as being vitally necessary in view of the threat with which the country is at present faced. I am not in the least anxious to have anything in the Bill that is unnecessary or that in any way impinges on civil liberties. I am, however, advised both by the Attorney-General and by the Lord Advocate—and there are special Scottish problems—that the subsection is necessary. Therefore, I am not at this stage, or indeed at any stage, prepared lightly to abandon something which may be of vital importance for the effective working of the difficult decision about proscription.
My hon. Friends have made a substantial case, but I ask them to let the Committee proceed and allow the subsection to remain in the Bill. We will consider most urgently whether this provision is necessary. Provided that we can make progress—and we must get this Bill at this sitting, however protracted it is, for there will be grave difficulties in the country outside if we fail to do that—I intend to have a look at the matter. Since there are three small Government drafting amendments to be made, there will in the normal way be a Report stage. At that stage if we are not absolutely convinced that the provision is necessary, we will ourselves drop the subsection. If hon. Members, having heard that we still think it to be necessary, remain unconvinced by the reasons we give it will be open for any hon. Member to divide against it at that stage. I think that would be the proper way in which to proceed. I hope my hon. Friends will accept what I have said.
§ Mr. Sedgemore
On the strict understanding that this matter will come back on Report, having had serious consideration as to whether the subsection is necessary, not merely for Scotland but for England, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Chairman
I understand that it will be convenient with this amendment to take also Amendments No. 9, in line 26, leave out from "organisation" to "a" 824 in line 27, and insert "before it was", and No. 10, in line 27, leave out from "organisation" to end of line 32.
§ Mr. Powell
These three amendments together greatly simplify, and I believe to an important extent improve, this subsection. I have two advantages in moving these amendments. The first is the knowledge that it is possible for amendments, if justified, still to be made to the Bill, and the second is that, unlike the previous subsection, subsection (7) does not occur in the corresponding Northern Ireland legislation.
I take it that the purpose of subsection (7) is to ensure that no retrospective offence is created. I imagine that that would be an agreed object: that it would be unreasonable for it to be a criminal offence to have belonged to an organisation when it had not yet been proscribed.
The way in which that is done in the subsection as it stands presents at least two practical difficulties. As subsection (7) is drafted, it turns upon the concept of becoming a member of the organisation, and of becoming it in so specific and definite a way that the becoming can be dated. I understand that it is unusual, to put it mildly, for those who join the IRA to fill up a form and to receive a card and for the transaction to be dated and recorded. There seem, therefore, to be great objections to a subsection which depends upon membership which is a formal act and an act to which a precise date can be assigned.
In addition to that, as the clause stands it appears that a person charged with belonging to the proscribed organisation could say, "I am not guilty, because it is true that I belong to it, and I belong to it still; I have belonged to it since before it was proscribed. But I am not taking any active part in its proceedings."
In relation to an organisation such as the IRA, it seems extraordinary that a person should be able to clear himself in that way; that it should be possible for a person to admit to being still a member of the proscribed organisation, having been such a member for some time, and to evade the offence merely by the assertion and the demonstration—but one does not know how such a negative could be demonstrated—that he is no longer active in it. Indeed, that second condition contradicts the very 825 sense of the clause as a whole, which is to make membership of the proscribed organisation in itself the offence.
As it stands, therefore, I would have thought that the subsection does not conveniently carry out the presumed object of avoiding a retrospective offence being created. These three amendments are thus put down to produce a much simpler and, I apprehend, effective result. With the three amendments, the subsection would run:A person belonging to a proscribed organisation shall not be guilty of an offence under this section only by reason of belonging to the organisation before it was proscribed.That seems to me to be a perfectly simple and clear way of ensuring that there is no retrospection without running into the difficulties of accepting a current membership of the proscribed association as guiltless and of having to verify the date of a transaction which in practice rarely, if ever, takes place.
§ 2.0 a.m.
§ Mr. Lyon
The description by the right hon. Member for Down, South (Mr. Powell) of the effect of the clause is correct. A person alleged to be a member of a proscribed organisation can raise the defence that he was a member before it became proscribed and that he has taken no part in any of its activities since it was proscribed. That is rather more than saying that he has not taken an active part.
Someone found in possession of a current card indicating membership of a proscribed organisation could say that he joined at the time when it was not proscribed and has taken no active part since proscription. The burden will be upon him, and in that sense it is an additional burden. He can discharge it by such evidence as he can produce to show that he has taken no part in the activities. It would seem unfair to say that a man in those circumstances should be guilty of an offence which on indictment might lead to a sentence of five years' imprisonment. That is why the clause is drafted as it is.
826 The amendment is an ingenious attempt to overcome the difficulties over a dormant member who nevertheless may still have sympathies with the IRA, but it does not catch the case where the man is guiltless of any continuing intention to ally himself with the IRA and is, therefore, not guilty of an offence after the introduction of the measure.
I hope the right hon. Gentleman will feel that it is possible for him to withdraw his amendment.
§ Mr. Powell
I must admit that I am still considerably puzzled. I had not realised that the intention was that current membership of a proscribed organisation was not to be an offence provided it was what the Minister describes as "dormant". The general purpose of the clause, which is to avoid the absurdity and contradiction of membership of a proscribed organisation, of an organisation which is concerned in acts of terrorism, being lawful, and of persons openly belonging to it, would not seem to me to be met if large numbers remained members of that organisation upon the profession of being dormant. There is also the great difficulty of bringing home either positively or negatively the precise activities in which they may or may not be currently engaged.
§ Mr. Powell
In consideration of the fact that the effect of the subsection appears to be, from the Minister's statement, to put the onus of proof upon the accused, where the accused was a member since before the organisation was proscribed, and as that appears to strengthen the means of bringing home any real offence in the sense intended by the Committee, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Craig
I beg to move Amendment No. 11, in page 2, line 32, at end add:'(8) Where a member of a police force of a rank not lower than the rank of a superintendent gives evidence that he has reasonable 827 grounds for believing that a person belongs to a proscribed organisation, it shall lie on that person to prove that he does not so belong or alternatively has ceased so to belong'.I move the amendment with the memory of the debate on the value of documents as evidence fresh in our minds and with the problems raised by the last amendment even more fresh in our minds.
We are now coming to the teeth of the Bill. It is easy to proscribe an organisation but very difficult to prove membership of a proscribed organisation. Certainly we in Northern Ireland have not been very successful in this respect, and it will be much more difficult if one has to prove not only membership but that the membership is active, or, rather, that the accused person must show that his membership is not active. One can produce as many documents as one likes; it will not help very much.
It is not often that I refer anyone to the Irish Republic for examples. There are many things which are good in the Irish Republic. No one would dispute that "Guinness is good for you". I do not think anyone should dispute that, when it comes to proscribing organisations, the law of the Irish Republic is far superior to that to be found anywhere else. Whatever criticisms we may have about the efficiency of the Eire authorities, they have in custody far more members of proscribed organisations than we have ever had in any part of the United Kingdom, because they have a law similar to what is suggested in this amendment.
Under the amendment a senior police officer not below the rank of superintendent would go to court and state that he had reasonable grounds for believing that the accused person was a member of a proscribed organisation.
§ Mr. Biggs-Davison
Is it not the case that in the Irish Republic an officer who was not below the rank of chief superintendent would give the evidence? Is there any reason to change the practice for Northern Ireland?
§ Mr. Craig
It is correct that it would be a chief superintendent in the Irish Republic. [Interruption.] An hon. Member on the Government side says that 828 an English superintendent is worth two chief superintendents in the Irish Republic. My amendment concerns only superintendents. Theirs is a sufficiently responsible post. It is an operational post. A superintendent would be able to speak from practical knowledge. That is the test. We propose to ask a responsible person with first-hand knowledge to state to the court that such-and-such a person is believed to be a member of an illegal organisation. It would then be up to the accused person to satisfy the court that he was not a member, or, as the Minister of State says, that he was not an active member.
Without an amendment of this nature, I do not think that the Bill will succeed in the task which has been set for it to do. I urgently ask the Committee to give favourable consideration to the amendment.
§ Mr. Kilfedder
I agree with my right hon. Friend the Member for Belfast, East (Mr. Craig) that we could follow the law of Eire in many respects in dealing with members of the IRA. The Eire authorities refuse to allow members of the IRA to be interviewed on television or radio.
The amendment seeks to adopt the law of the Irish Republic, which has as much experience of the IRA as we have in Northern Ireland. During the Second Reading debate it was said that the IRA was born in 1968 and 1969 in Northern Ireland, but it has been in existence for many years, going back to the old Fenian movement, and it fought a bitter and vicious campaign after the establishment of the Irish Free State. Since 1920 the Irish Free State has suffered many deaths as a consequence of the IRA and has meted out severe punishment to its members. The United Kingdom might learn much from the suffering of the Irish Free State.
I can see no way of phasing out internment other than by accepting the amendment, which would put the onus on a person to prove that he was not a member of the IRA. A person can be imprisoned rather than detained if he cannot satisfy the court that he is not a member of the IRA. We know from the Press, television and radio that there is much trouble about internment. The Committee would help the cause of peace and remove the 829 menace of IRA terrorists from the land by accepting the amendment.
§ Mr. McNamara
The hon. Gentleman said that the amendment would help to bring internment to an end, but the clause which it is sought to amend is in Part 1 of the Bill, which does not apply to Northern Ireland.
§ Mr. Kilfedder
I said that it might help to phase out internment. I did not say it would bring internment to an end.
§ Mr. Kilfedder
I appreciate that the clause does not apply to Northern Ireland. The complaint of my right hon. and hon. Friends is that part of the Bill applies to Great Britain and part to the United Kingdom. All I am saying is that if the amendment is accepted the law in Northern Ireland can later be changed to bring it into line with the law in Great Britain.
§ Mr. Greville Janner
The amendment could have serious consequences if it were passed. The clause provides for six months' imprisonment on summary conviction and five years' imprisonment on conviction on indictment. To shift the burden of proof from the prosecution to the accused is a crucial step to be taken only if there is no other way of achieving a satisfactory and fair result.
It is proposed that the burden of proof should be shifted if a member of a police force of a rank not lower than that of a superintendent proved that he had reasonable grounds for believing that a person belonged to a proscribed organisation and also if he gave evidence that he had reasonable grounds for so believing. He does not even have to satisfy the court of the reasonableness of his ground. It is enough if he gives evidence of it.
The object of the Bill is to convict the guilty, not to put in dire peril those who are innocent. This amendment deserves careful consideration because it has been put forward in the way it has and because it proposes a measure used in Eire. Having considered it, however, and the way it is phrased, I find that it is a most improper and dangerous way of putting innocent people in grave peril by shifting the burden of proof where it is not neces- 830 sary so to do in order to achieve justice and the object of the Bill.
§ Mr. Alexander W. Lyon
My hon. and learned Friend the Member for Leicester, West (Mr. Janner) is quite correct. If we were to accede to the amendment, we would go a great deal further than the hotly-disputed provision we were discussing less than an hour ago. We would be saying not that a court could consider evidence which came out of the mouth of a police officer as to his reasonable suspicions—that would not be as cogent as an admissible piece of documentary evidence which seemed to be addressed to the accused as indicative of membership of the IRA—but that it could consider prima facie evidence in the precise form which we debated earlier. It would throw the burden of proof on to the defence.
This would be a much more Draconian measure than the matter which received such earnest debate a little earlier. It is something that the Government could not accept in the light of our commitment to take powers which were wide enough to cover the danger but restricted enough to preserve civil liberty.
I am reinforced in that view because the Diplock Commission, when it considered what emergency powers were necessary in Northern Ireland, considered this power, which exists in the Republic, and it did so in an atmosphere in Northern Ireland where it is much more difficult to get convictions, certainly before juries, than it is in this country, where there is not equal pressure upon jurors.
The Diplock Commission said that it could not regard this as an acceptable measure even in Northern Ireland terms. For this reason we could not consider it necessary to have this quite terrifying change in our criminal law for the kind of danger we face in relation to the IRA.
§ Mr. Kilfedder
Is the hon. Gentleman saying that the law in the Republic, similar to that proposed in the amendment, is terrifying? Is he saying that in its method of dealing with the IRA, where it is not faced with the sort of murders we face here, the Republic is unduly restricting the personal liberties of the people in an emergency situation?
We are considering this Bill because of the atrocity in Birmingham and against 831 the background of IRA terrorism in Northern Ireland and other incidents in Great Britain. We are dealing with a very serious threat to the safety of the people of this kingdom. Surely in this emergency, when we are dealing with a measure which is meant only to be temporary, we should adopt the clause so that it will be possible to deal effectively with the IRA. Members of the IRA do not go around showing that they are members. But if they are challenged, just as happens in the Irish Republic, they find it very difficult to deny their membership or to disprove what the chief superintendent puts forward in evidence to a judge sitting without a jury.
§ Mr. James Molyneaux (Antrim, South)
I can understand the reservations of the Minister and his hon. Friends about certain aspects of this legislation, and it is fair to say that their repugnance is felt by everyone on the Opposition benches. We only regret that it is necessary.
I intervene only to point out that the. Minister may not have seen a statement made yesterday by a prominent member of the Eire Government. The Minister for External Affairs is reported to have said that he liked the fact that the British Government were gradually drawing nearer to the Republic's very effective anti-terrorist laws.
Not so long ago the Home Secretary said that he hoped to be in consultation with the authorities in Dublin. The implication was that he would be applying pressure to convince them to take much more effective measures. Presumably he was thinking in terms of their applying the law which they already possess. But would not Her Majesty's Government be in a much stronger position when they approached the Government of the Irish Republic if they were able to say, "We are tightening our laws. We are sacrificing many of the jealously guarded rights of British citizens to enable us to combine to meet this terrorist threat"?
Until Her Majesty's Government brace themselves to take that action they will be in a relatively weak position in their approaches to the Government in Dublin.
§ Mr. Mayhew
Whether or not it is the law in the South of Ireland, it will make very bad law if we enact this 832 amendment. It turns upon a superintendent giving evidence that he has reasonable grounds for believing, and so on. But that evidence must be open to cross-examination, and that cross-examination may be so effective that it destroys that evidence. None the less, the burden of proof will still be transferred to the person to prove that he does not belong, and that will make very bad law.
§ Rev. Ian Paisley
It is very difficult for any Government to convict those who are proscribed, and the Government here will find that in the vast majority of cases proscription is not successful.
In Northern Ireland various people have been proscribed. I have tabled Questions in this House asking why so many members of this or that organisation have even been charged with being members. In a great many cases of proscribed organisations in Northern Ireland no member has either been charged in the courts or found guilty of being a member. When a case comes to court, it is very difficult to fasten upon the accused man membership of a particular organisation. What my right hon. and hon. Friends are trying to impress on the Committee is that this matter has been successful in the Republic of Ireland only when such evidence has been accepted.
The provisions that we are proposing to pass this evening and many of the points that have been discussed are repugnant to all of us. The Minister of State said that this proposal would be terrifying. It is equally terrifying that a document, which would not even be authentic but would simply purport to come from a terrorist organisation, can be put in as evidence. It is no use saying that one thing is terrifying and another is not All these things would terrify people.
I suggest that it would be very difficult to get the case against any IRA man fastened unless we had a provision in the Bill similar to the proposal put forward by my right hon. Friend the Member for Belfast, East (Mr. Craig). That is a matter that the Committee should consider.
I submit that, taking the whole Bill, it is bad law. The hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) said that this was bad law. None of us likes what is happening. But are we going to succeed in doing what 833 the Bill sets out to do? I think that the Government should look carefully at what has happened in Southern Ireland and in Northern Ireland. The Secretary of State for Northern Ireland could tell the Committee how many IRA men have been proved in the courts to be members of that proscribed organisation. There is great difficulty here and the Government must face this difficulty.
§ Mr. Stainton
I am sure that all hon. Members who have reflected on Amendment No. 11 must be deeply concerned about its implications. I am terrified at the prospect of the pointing finger of a superintendent of police. Equally, I am impressed by what Ulster Members have told us about the apparent effectiveness of parallel measures in Eire. However, that conflicts with reports in the Press and on television about the activities of terrorists slipping over the border or populating numerous towns and villages in the northern parts of Eire. It may be that the arrests have been voluminous, but they have not been wholly effective in Eire.
We are frequently urged by Ulster Members that representations to the Eire Government should be more severe. I take heed of what is said by Ulster Members. They come here with a background, alas, of very bitter experience of which we should take heed. They have been through the mill and are still there.
I certainly cannot support the amendment. That is not because the lead for which I look to the Government has not been forthcoming but because, as my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) pointed out, the drafting is defective. If the superintendent, or whoever it be, is to to give evidence, that evidence would be susceptible to cross-examination. This type of subsection would make sense only by substituting for the words "gives evidence" something like "states", perhaps adding "without malice" or words to that effect, but "states" would be the operative word as opposed to "gives evidence" if we wish to be carried along with the purport of the amendment.
I do not like the smell of this at all. On the other hand, I am impelled by the thoughts from Ulster Members. I look to the Government. I shall resist the amendment on the grounds of my basic 834 feelings and motivations on the assurances given by the Government, but the onus is on them.
§ 2.30 a.m.
§ Mr. Gerard Fitt (Belfast, West)
It is indicative of the thinking of Unionist Members that the right hon. Member for Belfast, East (Mr. Craig) should have been chosen to move the amendment. I, too, represent a Northern Ireland constituency. I am bitterly opposed to the amendment, and I am certain that it will be rejected by the Government.
Unionist Members are rather schizophrenic in their approach to the activities of the Government of the Republic. Time and again during these debates we hear vicious and completely unwarranted attacks by Unionist Members on the alleged inactivity of the Government of the Republic in some matter or other. I am sure that the Government of the Republic will be amused when they read tomorrow morning's report of the debate and find that they have been complimented by some Unionists because of the stand they have taken over the detention of members of terrorist organisations.
I remember the debates in this House and in Northern Ireland on the even more Draconian Special Powers Act, when so much faith was placed in the hands of the police for the operation of that measure. Even now certain Members who represent the Unionist point of view have lodged strong objections to internment and detention. Time and again I have heard the hon. Member for Antrim North (Rev. Ian Paisley) criticise internment in Northern Ireland. I have heard him criticise how the courts are held in relation to Long Kesh. I have heard him criticise members of the Special Branch who sit behind a curtain and swear that someone is a member of such-and-such an illegal organisation.
That is what the police are doing now. Policemen not of the rank of superintendent, chief superintendent or assistant chief constable are supplying my right hon. Friend the Secretary of State with information that people are members of illegal organisations, and on that information on far too many occasions my right hon. Friend has signed an "into custody" order and the person has been incarcerated in an internment camp. That is happening now on evidence given by the 835 police force in Northern Ireland. The people of this country would be embarking on a dangerous road if they have similar powers to the police force here. Hon. Members on both sides of the Committee can see what is happening in Northern Ireland, and I do not want it to happen here.
§ Rev. Ian Paisley
It should be made clear that there is a difference between the content of the amendment and the commissioner's hearing. I am opposed to an anonymous police officer standing behind a curtain and giving evidence, and I have exposed this practice in the House before today. But that is not what we are suggesting, and I hope that the Committee will not be deceived by the hon. Member for Belfast, West (Mr. Fitt).
We are saying that the superintendent should come into open court and give his evidence in public. His rank will be known, and he will be known. When he has given his evidence, the onus of proof will revert to the person charged. This is, of course, a serious matter. I am not a lawyer, but lawyers in the House know that under some laws the onus of proof is upon the person charged. It would be up to the person charged to rebut what the officer said. He would have an opportunity to do that, as happens in the South of Ireland.
I am no advocate of the Republic. My sad reflection is that far too many IRA men are not brought to the Central Criminal Court in Dublin and charged with being members of the IRA. Too few of them are brought there. However, this court has been effective in proving the membership of a proscribed organisation.
If Parliament wants the Bill when enacted to work, there must be some way whereby these men can be brought before the courts with the possibility of evidence being presented to the courts to prove that they were members of a proscribed organisation.
I believe that the whole Bill is bad. I do not like it. We are dealing with a problem that is before us. We would do far better to look at it in a practical manner to see what can be done.
§ Amendment negatived.
§ The Chairman
Before I put the Question on the clause, I remind the Com- 836 mittee that we have been four and a half hours discussing it. This might be borne in mind if any hon. Member wishes to speak on the Question "That the clause stand part of the Bill".
§ Clause 1 ordered to stand part of the Bill.