§ 2.53 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Elton)
My Lords, I beg to move that the Prevention of Terrorism (Temporary Provisions) Bill, which was laid before your Lordships' House on 26th January, be read a second time. I shall listen, as always, with the greatest of interest to what your Lordships have to say in the course of this debate; but I shall listen with a greater interest still to the comments of the noble Lord, Lord Henderson of Brompton, whose maiden speech it will be. He has been forced to listen in silence to so many of my banalities in the past that I am, to say the least of it, apprehensive of what he may say now that, at last, he is so deservedly free to utter.
There is something repugnant to the British spirit in the limitations to the rights and freedoms of individual citizens which such legislation as we now contemplate necessarily provides. It is for that reason that Parliament doles out these necessary powers so reluctantly and for such short periods of time. The Home Secretary, upon whom responsibility for internal security rests, is not given these powers indefinitely, or for the duration of a particular state of affairs, or even for the life of a Parliament. Year by year the Home Secretary, and his predecessors, have had to come to the House of Commons and justify their continuance—just as I, and my predecessors, have had to come to this House to convince your Lordships that they were still necessary.
This mistrust of special powers is shared by Governments of all complexions. It was for that reason that the noble Lord, Lord Shackleton, was asked to prepare the report on the working of the 1974 and 1976 Acts, which he made in 1978. It was for that reason that my noble friend Lord Jellicoe was asked to prepare the report on the working of the 1976 Act, which your Lordships debated, and deservedly approved, in March of last year. And it is for that reason also that I now come before your Lordships with an application for powers even more carefully doled out, in an Act which must not only be annually endorsed but which, after five years, becomes automatically defunct.
I shall return to my noble friend's report in a moment, but before I do so I must make one comment on the extreme caution with which Governments request, and Parliament grants, powers such as these. It is simply this. To an outside observer this caution would seem notable under any circumstances. Under the circumstances in which they actually take place, they are very remarkable indeed. I need not catalogue to your Lordships the hideous backcloth of clandestine and murderous violence that has been unrolled these last 10 years. Citizens of every rank and members both of another place and of this House have been cut down in a campaign of which the chief irony is that every blow which its members account a success puts its ultimate aim even further beyond their grasp. But that campaign costs the lives and limbs of innocent citizens; of servicemen and policemen and, indeed, policewomen preserving the Queen's peace; of old 886 people on holiday; and, only a few weeks ago, of young people doing their Christmas shopping.
I do not think that in these circumstances I need to convince your Lordships that legislation is needed. In that connection, I return to my noble friend Lord Jellicoe's report and, specifically, to paragraph 65. In it he puts it beyond question that if powers such as these were removed from them the forces of law and order in this country would be seriously handicapped in their duty of protecting the lives of our citizens. That is the conclusion to which the noble Lord, Lord Shackleton, came in paragraph 136 of his report, so there has been consensus about that. And the right to life, my Lords, is the most fundamental human right there is. That right is shared by all our citizens and the citizens of every other country living in the United Kingdom.
My noble friend made the point in his report that international terrorists have shown a marked tendency to bring the internal struggles of their own countries on to British streets. I had at this point intended to refer to the shameful attempt upon the life of Mr. Argov when he was Ambassador of Israel to the Court of St. James; but since then there has been another stark and repulsive example of the assassin's work marked by the death of Mr. R. H. Mhatre, Assistant Commissioner in India's Assistant High Commission in Birmingham. I shall be speaking shortly of the deep regret and the fundamental revulsion which that event has caused in Her Majesty's Government. In this debate, however, let me say only that that, very sadly, points up the necessity seen by my right honourable and learned friend and Her Majesty's Government for ensuring that the relevant powers in this Bill extend to international as well as simply to Northern Irish terrorism.
It is in the light of my noble friend Lord Jellicoe's observations and recommendations that this Bill has been drafted, and it is to meet his recommendations that most of the changes from the 1976 provisions have been introduced. My noble friend made 59 recommendations altogether. Forty-four of these required action, and the remaining 15 amounted to conclusions or suggestions that the status quo should be preserved. Thirteen of them are directly incorporated in the Bill. Four will be incorporated in a Prevention of Terrorism Supplemental Order that will be introduced following its enactment. Seventeen either will be or already have been introduced by administrative means. Four which may be implemented by administrative means are at present under consultation with those concerned with their operation, and a further six are included for legislation not in this Bill but in the Police and Criminal Evidence Bill, which will come before your Lordships from another place later this year.
One recommendation was rejected in another place on a free vote. It catches the eye first because it affects the Title, but it cannot be said to be first in importance because it does not affect the powers. An amendment carried in another place inserted into the Title the words "Temporary Provisions", which my noble friend had sought to exclude from it. The arguments for and against this are finely balanced, and I dare say your Lordships will be content to let another place have its way on this.
887 I now turn to the provisions in the Bill itself. Part I gives the Secretary of State the power to proscribe organisations concerned in acts of terrorism connected with Northern Irish affairs. The organisations already so proscribed are listed in Schedule 1, which is dependent on Clause 1. Part I also creates a related range of offences.
Part II enables the Secretary of State to exclude persons from the United Kingdom, from Great Britain or from Northern Ireland if he considers it expedient to do so in order to prevent acts of terrorism. Part III makes it an offence to contribute or solicit support for acts of terrorism and to withhold information about such acts. Part IV gives to the police the power to arrest suspected terrorists without a warrant and to detain them for a limited period which can be extended on the authority of the Secretary of State.
The present Bill follows the 1976 Act in very many of its provisions and I doubt whether your Lordships will wish me to catalogue them all. Instead I will concentrate on the most important powers in the Bill and specifically on the places where it differs from the 1976 Act.
The powers which have attracted the greatest interest are those of arrest and detention in Clause 12. The equivalent section, Section 12, of the 1976 Act differs from the remainder of that Act in that its application is not restricted to deeds of terrorism connected with Northern Irish affairs. This was intended to give the police the power to arrest a suspected terrorist without first having to identify the particular cause he supported. However, following an undertaking given during the passage of the 1976 Act, the application of those powers was restricted to acts of terrorism in connection with Northern Irish affairs by means of a circular to the police.
This Bill does specify the acts of terrorism to which the powers of arrest and detenion in Part IV apply. In doing so it embodies two of the recommendations of my noble friend Lord Jellicoe. First that the power should be available to deal with what might be called "international" terrorism as well as with Northern Irish terrorism. And, secondly, that it should not be available to deal with terrorist acts concerned solely with the affairs of Great Britain as distinct from those concerned with any part of the United Kingdom.
The point has been made by commentators on the Bill that as at present drafted Clause 12 empowers the police to arrest and detain members of organisations dedicated to the overthrow of what they, and sometimes we, ourselves, regard as oppressive regimes in their own countries. Such people might well be living here lawfully and with the agreement of my right honourable friend. They have viewed with understandable concern the possibility that they might now be subject to arrest under Clause 12 of the Bill. In response to this concern my honourable friend the Minister of State undertook, during the passage of the Bill in another place, to see whether the clause could be redrafted so as to allay those fears without removing from its scope those against whom we believe its powers should be available. In the event it did not prove possible to achieve the first of these objectives without seriously damaging the second. I must therefore advise your Lordships that my right 888 honourable friend the Home Secretary has concluded that the only means of limiting the scope of Clause 12 is to proceed by way of assurance and circular.
It is the Government's intention therefore, in giving guidance to the police, to advise them that the powers in Clause 12 should be used only in relation to international terrorists where there is some prospect either of a charge before a United Kingdom court or that the person would be deported under the immigration Act 1971. The practice of limiting the use of statute by circular is not perhaps entirely satisfactory. But, this method is now well established in the field of the prevention of terrorism legislation and it has worked well since 1976. I hope your Lordships will accept that the Government have gone as far as they can in seeing that those who should be protected are protected while retaining the power for use only against those whose activities bring them within the intended scope of the clause.
Clause 12 also incorporates my noble friend's recommendation that the powers of arrest and detention should not be available for use against those involved in "domestic" terrorism. By domestic terrorism I mean terrorism concerned only with the affairs of Great Britain. I would not wish the term "domestic" to leave your Lordships under the impression that what I am talking about is some innocent or prankish activity of no great consequence. We take the activities of those who are engaged for example in Welsh or Scottish extremist violence very seriously indeed. But the activities of such organisations have not been on a scale comparable to the vicious killings which have been the tragic and shameful hallmark of Northern Irish terrorism. I can assure your Lordships that if at any time the nature of the problem changed, the Government would have no hesitation in seeking the approval of Parliament to an extension of those powers so that they could be applied to suspected "domestic" terrorists as well.
My noble friend Lord Jellicoe said that he found consideration of the issues raised by the provision of powers of exclusion the most difficult part of his task. His recommendations have been incorporated in Part II of the Bill. They are designed particularly to ease the distress which exclusion can cause, not only to those excluded but also to their families.
Under the present system, an exclusion order remains in force indefinitely unless or until it is revoked by the Secretary of State. My noble friend Lord Jellicoe saw no reason why exclusion orders should not be made for a fixed period, at the end of which they should automatically lapse. The Bill therefore provides that exclusion orders will have a life limited to three years. If, at the end of that period, the police believe that the person concerned is still engaged in terrorism they will be able to make an application to the Secretary of State, detailing the intelligence against him, for a fresh order to be made. And my right honourable friend the Home Secretary has said in another place that, except in the rarest of circumstances, he will make a further order only where there is new intelligence indicating a continuing involvement in terrorism. The intelligence on which the original application was based will not be sufficient for this purpose.
889 Under Sections 4 and 5 of the 1976 Act a British citizen may not be excluded from a part of the United Kingdom—from Great Britain or Northern Ireland—if he has been ordinarily resident in that part for 20 years. The Bill incorporates my noble friend's recommendation that the qualifying period for exemption should be reduced from 20 years to three.
My noble friend was also concerned that very few people had made use of the chance to make representations against exclusion. He concluded that the arrangements in the 1976 Act combined to create a disincentive. Under the present system an excluded person may make representations within 96 hours of service of the order and may include in them a request for an interview with one of the advisers appointed by the Secretary of State. But such an interview cannot at present be granted if the person has already been removed. This means, in effect, that he must remain in custody until an interview can be arranged, if it is to be arranged. The Bill therefore provides, in Clause 7, for such interviews to be held within the United Kingdom or the Republic of Ireland and extends the period within which representations may be made from 96 hours to 7 days. The Government has also introduced in Clause 7 another measure designed to limit the time spent in custody. Under this an excluded person who agrees to be removed may have a further 14 days in which to make representations.
On a more general point, the Bill, as I have already told your Lordships, has a limited life of 5 years, after which time the powers will lapse unless re-enacted. We fully share my noble friend Lord Jellicoe's view that such exceptional powers should have exceptional safeguards.
Finally my noble friend made several recommendations which were designed to ensure that people detained under this legislation were treated in the same way as any other detainees. Accordingly, the Police and Criminal Evidence Bill provides for a person detained under the prevention of terrorism legislation to have access to legal advice and gives the right to have a relative or friend notified of one's arrest and whereabouts.
In the nine years that this exceptional legislation has been with us it has very properly received more parliamentary attention than almost any other. It has also had the benefit of meticulous examination by two distinguished Members of your Lordships' House. The quality that pervades my noble friends' report is one of balance between individual rights and public safety, and the same goes for that of the noble Lord, Lord Shackleton. Even those who have opposed the Bill must welcome the fact that it makes some notable improvements over its predecessors. Successive governments have always recognised that this legislation is as distasteful as it is exceptional, and we must hope that the time will soon come when such powers as these have no place on the statute book. But as long as the all-too-evident threat of terrorism remains with us I believe that the powers are essential, and if we are to try to protect our way of life from the ugly savagery which terrorism can inflict upon it we must have this legislation. It is in that context that I 890 beg to move that your Lordships read this Bill a second time.
§ Moved, That the Bill be now read a second time.—(Lord Elton.)
§ 3.10 p.m.
§ Lord Mishcon
My Lords, the noble Lord, Lord Elton, has introduced the Second Reading debate of this very important Bill with his usual clarity and we are grateful to him. With him, may I express my own pleasure and that of my noble friends that this debate will be graced by the maiden speech of the noble Lord, Lord Henderson of Brompton, whose face and voice are already somewhat well known to this House. Both will always be very welcome. As the noble Lord the Minister said at the very outset of his speech, no British Parliament, with our proud traditions of benefit of law, civil liberties, freedom from arbitrary arrest and detention, rights of habeas corpus and freedom of movement within and out of our native shores, can relish for one moment having to contemplate the continuance of legislation such as this. Its provisions offend every one of these treasured concepts.
We have been passing temporary legislation and orders continuing it on a similar basis for some nine years. They have their origin and their cause in the inhuman, indiscriminate, cowardly crimes of gangsters posing as political idealists who have murdered in cold blood defenceless men, women and children who, in the majority of cases, had no connection whatever with any political conflict. Our justification for this temporary, special and quite exceptional legislation and for continuing it year by year was that we were fighting evil and remorseless men; and that it was hoped that by the use, the temporary use, of these exceptional powers, we would succeed in containing, indeed removing, the scourge of terrorism from Northern Ireland and the remainder of the United Kingdom.
Only for such purposes and with such aims could we countenance, even temporarily, such statutory provisions as the banning of organisations, which appear to be concerned with terrorism, and the exclusion of our own citizens from one part of the United Kingdom to another on the mere edict of a Secretary of State—in both cases with no right of redress or appeal to any judicial process and in both cases without any reasons having to be given. Extended powers of arrest and detention and a new crime—that of withholding information from the police about future acts of terrorism or people involved in it—are connected with Irish affairs. Very properly, Parliament had to assess each year whether the aims and purposes of such legislation as this were being fulfilled and whether a continuance for a further year was justified. Very properly, as well, as the noble Lord the Minister pointed out in his speech, two distinguished Members of your Lordships' House were severally given the task of reviewing the operation of the then current legislation.
My noble friend Lord Shackleton, whom the House will observe with pleasure is to participate in this debate, reported in August 1978 (Cmnd. 7234) and the noble Earl, Lord Jellicoe, in February 1983 891 (Cmnd. 8803). Their respective terms of reference required them to accept-and I am quoting:the continuing need for legislation against terrorism".It is fair to say, therefore, that there has been no inquiry specifically directed to that continuing need; but it is equally only right to say that, although not having the benefit of such a specific inquiry, both noble Lords at the time of making their reports were of the personal opinion—and I quote the noble Earl, Lord Jellicoe, in this context in his more recent report—that,If special legislation effectively reduces terrorism, as I believe it does, it should be continued as long as the substantial terrorist threat remains".As your Lordships will know, there will be no question of the Opposition dividing this House on the Second Reading of this Bill. It would be contrary to tradition to so so. In another place, however, my right honourable and honourable friends opposed this Bill in principle. In reasoned speeches, they weighed in the balance whether what had been apparently achieved or not achieved by straying so materially from our normal concept of criminal law and procedure had compensated, over this period of some nine years, for the dangerous sacrifice of vital principles of our law and civil rights; added to which—and such an experienced and courageous Northern Ireland politician as my noble friend Lord Fitt has made his views in this connection very well known while a Member of another place—was the antagonism which this legislation had created among good Irishmen both in Northern Ireland and, very much so, in this country.
As my right honourable friend Mr. Roy Hattersley, then shadow Home Secretary, put it in the debate in another place on the Jellicoe Report in March last, and as quoted in our debate on that report at col. 506 of 14th March last:There is much evidence to suggest that the alienation has already happened. Law-abiding Irish visitors feel threatened and harassed at the ports, and the Irish community in Britain feels that it is under constant suspicion. Propaganda victories are handed to the most disreputable elements in Irish politics".He was referring in that context to paragraph 10 of the Jellicoe Report, which reads:The most important assistance which the police can have in the fight against terrorism is not special powers but the support of the public. It is vital that such powers do not unnecessarily alienate—either in their essence or in their application—any section of the law-abiding population".The statistics available for the period November 1974 to December 1982, which were quoted in another place, were also very revealing. In Britain—that is, exclusive of Northern Ireland—a total of 5,555 had been arrested under the Acts; about 70 per cent. at ports and 30 per cent. elsewhere. The annual total has declined significantly since 1979; 88 per cent. were released without any charge or any exclusion order. The same percentage of apparently innocent people detained varied little over the years: 7.1 per cent. were charged with an offence and 4.7 per cent. were excluded. Only 2.1 per cent. were charged with offences under the prevention of terrorism legislation and 5 per cent. with offences under other legislation. Only 83—that is, 1.5 per cent.—have ever been found guilty of offences under the legislation, and 892 176—that is, 3.2 per cent.—of other offences, of which no less than 95 appeared to be non-terrorist crimes. If exclusion cannot be treated as guilt, and in the circumstances it should not be, 95 per cent. of those arrested under the Acts have either not even been charged or have been found after charge to be innocent.
Since these figures were discussed in another place, some further figures have very recently been released by the Home Office to cover the year 1983. The percentages remain constant and the picture remains the same. The evidence would appear to show that the powers of arrest under this legislation have largely been used not as a result of reasonable suspicion of involvement in anything to do with terrorism, but to gather information about Irish people and those involved in Irish politics. After detention, which can be for anything up to seven days, those involved are then released without any charge being made. It is an indication of a dangerous shift in the concept of crime as the basis of police action to that of political views. This is a shift which could be the beginning of a slippery slope. We must look at it very carefully, or we ignore it at our peril——
§ Lord Donaldson of Kingsbridge
My Lords will the noble Lord give way for a moment? He has quoted a number of figures. I shall be quoting the same figures, but I will interpret them in an absolutely different way. I just wished to make that clear.
§ Lord Mishcon
My Lords, I am grateful for notice of that fact, as I am sure the House will be, and it will be interesting, as it always is, to see how the noble Lord interprets matters. I emphasise that the statistics I have given relate to Britain; that is, not to Northern Ireland. Indeed, statistics in Northern Ireland for the same period show a contrast. There were 2,278 detained under the legislation, of whom 43.8 per cent. were eventually charged; 1.1 per cent. were excluded; 3.5 per cent.—that is, 79 persons—were charged with offences under the legislation and 40.3 per cent.—that is, 917 persons—with other offences, of which 12 per cent. were non-terrorist type offences and 55.1 per cent. were released without any charge or exclusion order. Unlike the situation in Britain, the number of people detained under this legislation has increased significantly in the last years. Here again, more recent statistics covering the year 1983 have just been published by the Home Office and they indicate the same sort of percentages and the same sort of picture.
Having, as I have said, weighed such matters as these in the balance and after some nine years' experience to look back on. my right honourable and honourable friends decided to oppose a continuation of this legislation and argued that the normal provisions and powers of our criminal law should be applied. Some of their political colleagues did not agree with their conclusions and did not follow them into the Division Lobby. Some of my political colleagues in this House do not agree with their conclusions. But, on any view, their decision was reached after very deep consideration and for good and honourable reasons. It will be the role of the Opposition in this House during succeeding stages of this Bill to scrutinise its provisions, to put forward and support amendments which endeavour to prevent, so 893 far as we can, abuse of powers given under the Bill and, where practicable, to introduce safeguards.
One of the provisions which we shall try to remove from the Bill is that containing the criminal offence in Britain of withholding information from the police about future acts of terrorism or people involved in it, if connected with Irish affairs. That offence has been repeated in this Bill, in spite of the fact that my noble friend Lord Shackleton recommended in his report that it should be allowed to lapse in Britain, and remarked that it had an unpleasant ring about it in terms of civil liberty. I remember also that in our debate on 14th March 1983, at column 498 of Hansard, he said that he still disliked this power to charge people for failing to give information and that it smacked very much of police state type legislation. I imagine that we shall have the pleasure of hearing from my noble friend later on when he addresses the House on that matter, but I shall be grateful if, when he comes to reply to this debate, the Minister can tell the House whether in connection with this offence someone is obliged to give this information about a third party even when such information might incriminate him, the informant, in some way. If so, it is an even greater and more serious incursion into long accepted principles of justice.
Among other areas which we shall have to consider are the exclusion provisions and the extension of the Act to allow the detention of anyone suspected of involvement in international political violence anywhere in the world, whether or not the acts had any connection at all with this country. I know that anti-apartheid organisations, for example, are very concerned at the effect of these provisions and the use that some future Government might be able to make of such powers. This clause could create unfortunate precedents and could also lead to unwelcome requests by other governments being made to our Government which we could find more than embarrassing. I personally was not at all happy with what the noble, Lord the Minister said about the limitation of this provision by a circular. That is not the way to legislate, and we shall doubtless return to that matter at the Committee stage.
In conclusion, I must say that we are faced with evil men perpetrating evil ends. Terrorism is one of the major scourges of our time, and only over the past 24 hours yet another foreign diplomat has apparently become the victim of terrorism on our own soil. The people of Northern Ireland face these evils daily. We have our own recent, bitter and sad memories of Hyde Park, of Harrods and of many tragically bereaved families. Throughout this House and throughout the kingdom there is detestation for the perpetrators of these deeds. Let us most certainly, in facing this continuing threat, give every possible and proper support to our police and security forces upon whom we admittedly place a tremendous burden, which in general they undertake with great courage and integrity. We rely upon them for the protection of our people, to apprehend the culprits and to see that these criminals are brought to justice. In legislating for special powers in the realm of criminal law, however, let us unite in this House, this bastion of law and order and justice, in our endeavours not to permit those who 894 would wickedly destroy lives and property to destroy as well values which are the very foundations of our society. We should do well to remember in the remaining stages of this Bill the principle which the great Lord Chancellor, Sir Thomas More, enunciated centuries ago: that he would not deny the very Devil the benefit of law, since, if he did, it would imperil us all.
§ 3.31 p.m.
§ Lord Wigoder
My Lords, nobody will know better than the noble Lord, Lord Henderson of Brompton, how inappropriate it is for anybody to comment on the appearance of a maiden speaker in your Lordships' House other than the noble Lord immediately following that speaker in the list of speakers, and nobody will know better than the noble Lord, Lord Henderson of Brompton, that this is bound to be one of those occasions when that tradition is widely flouted. The noble Lord entered your Lordships' House last week to a roar of approval from all the Benches in the House—something almost totally unprecedented. I need say no more than that I know we are all looking forward with the greatest eagerness to his contribution to our debate.
Your Lordships have been over the ground contained in the Bill on many previous occasions. On many occasions noble Lords, including myself, have stood up and discussed the problem in terms of drawing a balance between the fight to combat terrorism and the threat to our civil liberties. The more I have said those words—and I have said them many times—the more I have become troubled as to precisely what they mean, and the more difficult I have found it to draw a balance between like and unlike and to weigh up the value of a loaf of bread against the value of a performance of a Beethoven symphony. I doubt whether trying to draw a balance between these considerations is very practical. In fact, having been over this ground so many times in the past, I believe that that is not the right approach to the problem which faces us.
The right approach is to say, as the noble Lord, Lord Mishcon, has made perfectly clear, that we are facing, in the whole concept of terrorism, a vast evil: the deliberate maiming and slaughter for political purposes of, very often, innocent women and children. In those circumstances, I believe that any society is bound to have to take stringent measures in order to defeat that threat. In taking those measures we must be aware of the fact that very often they are a threat to our civil liberties, and in taking those measures we must try at all times to mitigate that threat. But I do not think it is possible in any practical terms to draw the sort of balance we so often talk about.
To give an example, the noble Lord, Lord Mishcon, spoke of figures. I wonder what they mean. If a person who is subsequently not charged is detained and if, for each person so not charged, one mass murderer is found, prosecuted and convicted, I would suspect that most members of your Lordships' House would say that it is unfortunate for the person who is not charged but that it is acceptable in the circumstances. If 10 people are not charged while one person is charged, what, then? Or 100 or 1,000? Is it possible to determine this on a mathematical basis in an attempt 895 to draw a wholly artificial balance? It is my view—and the view I believe of my colleagues on these Benches—that we must approach the Bill by looking primarily at whether it will be effective in helping us to combat the appalling threat of terrorism. Secondly, we must ensure that if it is effective its consequences for civil liberties are kept to the very minimum.
Against that background, may I look briefly at the Bill. Part I deals with proscribed organisations, and I need say very little about it. I have repeatedly made the observation, and I am more and more convinced that it is right, that proscribing organisations is desirable for cosmetic purposes because the general public expect organisations such as the IRA to be proscribed and it is right that they should be. However, I do not believe that proscription performs any particularly valuable contribution in the fight against terrorism.
Part II of the Bill deals with exclusion and is a matter which causes us all concern. I do not think that it is helped by those who in another place have tried to draw parallels between the power of exclusion under the Bill and the treatment of dissidents in the Soviet Union. That is a very different problem, with very different consequences for the unfortunate people who are so dealt with. I am happy to see that the exclusion powers have been modified in the way that the Jellicoe Report suggested, particularly in Clauses 3, 4 and 7 of the Bill. I believe, with very great reluctance, that the power of exclusion, if exercised wisely and sensibly as one must hope it will be, must, in the present political circumstances, unhappily remain. I add only this. A determined and ingenious effort was made in another place to try to construct some form of judicial review for exclusion orders. An exclusion order is an executive decision. I do not believe that it is possible, with the greatest degree of ingenuity, to construct any form of judicial process which will give any satisfaction to anybody. This is an end after which we must cease to strive so far as exclusion orders are concerned.
Part III of the Bill deals with miscellaneous offences, in particular with the one which creates the offence of withholding information. This is one of the occasions when I agree with the noble Lord, Lord Mishcon. It is an offence which has been prosecuted very, very rarely. In substance, there was only one case in which a substantial number of people were dealt with, and none was dealt with by a sentence of imprisonment. It is a wholly artificial concept in terms of life in Northern Ireland. How can one say to a person living in Belfast that he commits a criminal offence if he fails to disclose to the police some information which he might have obtained about his next door neighbour? That is one of the occasions in the Bill where an offence has been incorporated which has never been of any practical value and which offends against all our concepts of ordinary criminal law.
To turn to Part IV of the Bill, which deals with arrest, detention and court powers, I want to deal primarily with Clause 12. First, Clause 12 brings within the ambit of the Bill international terrorism, as limited by the assurance given by the noble Lord the Minister this afternoon. I find it difficult to argue against it. When one considers the links between 896 terrorists in all parts of the world—the way they train together, equip each other, pass on information to each other and work together—it seems to me to be rather unrealistic to try to limit a Bill of this nature purely to terrorism as between the Irish and this country.
As to the other matter contained in Clause 12—the extension of the power of detention up to a period of seven days—that, as the noble Lord, Lord Mishcon, will know only too well, is no great innovation in our criminal law. He and I must have appeared on many occasions on behalf of people who have been detained for five, six or seven days before it was possible, by the threat of some writ of habeas corpus, to secure their release. I am bound to say, having been involved on more occasions than I care to think about in cases where terrorists have been tried for their crimes, that there have been a number of such cases where guilt has been brought home to them entirely as a result of the power contained in this clause to extend the power of detention, and therefore the power of questioning, in that way.
§ Lord Mishcon
My Lords, before the noble Lord moves on, I wonder whether the House may have the benefit of his comments and great experience in regard to that part of the clause he was just discussing, which deals for the first time with an act of terrorism, so-called and so-defined, anywhere in the world, even though it has no connection with this country at all? Does the noble Lord not share the fears which organisations such as the anti-apartheid movement have about such a clause?
§ Lord Wigoder
My Lords, the answer to that is, I came to your Lordships' House with an open mind on that matter this afternoon. Bearing in mind very much the links between the various forms of international terrorism—and I do not seek to include anti-apartheid organisations in that observation; of course I do not—I listened very carefully to the assurance given by the noble Lord the Minister in regard to the way in which this clause would be operated. I should like to see in Committee whether it is possible to amend the clause to cover the terms of the assurance given by the Minister. If that is possible, I believe it would be desirable. If it is not possible, I am prepared at least to accept at face value the assurance as it has been offered to your Lordships' House this afternoon.
I come finally to Part V of the Bill: particularly to Clause 17, as to its duration. I am delighted to learn that the Bill is to be limited, whatever may happen in its duration, to a period of five years; that there should be regular re-enactments of this Bill is a proposal which, I believe, came first from the Liberal Benches. I am pleased to note also that there should be annual renewals by order, as there have been in the past. This does create the difficulty, as your Lordships will know, that it is impossible to argue on such an order the merits of any particular part of the Bill.
I do commend to the noble Lord the Minister the suggestion made in another place by Mr. Enoch Powell—and I do not always commend his suggestions—that it may be possible for the renewal order to be laid as three, four or five separate orders relating to each part of the Bill, so that it would be 897 possible for the House, if it wished to do so, to reject one particular part of the Bill if it turned out during the period to be inoperative.
I add, too, that there is much to be said for the suggestion made in another place that, because of the difficulty with an annual order for renewal, it is desirable that there should be a high calibre review body constantly scrutinising the working of the Act and how the various orders are being carried out under the Act—such as the powers of exclusion and the powers of detention—and reporting regularly to Parliament each year at the time when the renewal order comes forward.
As I have indicated, there is much in this Bill to occupy your Lordships in Committee. We look forward to playing our part in those proceedings. We accept of course that this Bill is one about which individuals feel very strongly and have very passionate convictions. Having said that, and accepting as we do that there will be individuals who will go their own way in respect of this legislation, I am bound to say that, as political parties, the SDP and the Liberal Party would find it quite irresponsible to oppose this legislation.
§ 3.44 p.m.
§ Lord Henderson of Brompton
My Lords, I hope that it is not considered indecent of me to make my maiden speech so soon after my Introduction, but I wish to make a few remarks about Clause 17 of this Bill. May I preface my remarks with a few brief personal words? First, I wish to thank those noble Lords who have spoken already for the kind remarks they have made. Secondly, I should like to say that soon after the new year, when my name was mentioned in the Honours List, I read in Country Life, on 5th January, these words:Anyone who has not heard of Henderson need not feel guilty".I found some comfort in that. The article went on to observe:Henderson's value as an untouched example of an isolated coral atoll is enormous".I do feel rather like a tiny speck in the Pacific Ocean as I make my maiden speech, but I believe that I am just on the map.
I agree with the necessity for this Bill—and I wish to refer to necessity later—subject to stringent safeguards, for the reasons set out by the noble Earl, Lord Jellicoe, in his report and by the noble Lord the Minister when he opened this debate. The noble Viscount the Leader of the House is much to be congratulated on having, when he was Home Secretary, asked the noble Earl to conduct an inquiry; just as his predecessor was much to be congratulated on having chosen the noble Lord, Lord Shackleton, in 1978. Both noble Lords are deeply committed to civil liberty as well as to the preservation of public safety.
It is misconceived in the highest degree to suggest that those noble Lords somehow had the wool pulled over their eyes. Listen to this comment, which was published in the Financial Times as recently as 30th January this year:The conclusions of both Lord Shackleton and Lord Jellicoe were reached without objective scrutiny898 of any detailed evidence of the operation of the law's provisions from case to case; and that they,relied, not unnaturally, on what they were told by the security services and the policewho enforce the law. The whole House knows, surely, that neither noble Lord would conceivably have reached their conclusions or put their names to their report without having ascertained all the facts and without objective scrutiny. Anyway, I do not suppose that any officials could bamboozle either noble Lord, and I should like to see them try.
May I now say a word about necessity; a concept, especially in the political field, which always makes me reach for my scepticism—and for my Milton. Your Lordships' House will remember that Satan played a rather active rôle in Paradise Lost and spoke frequently and at length. In fact he was, if I may say so without disrespect to the noble Lord, Lord Cledwyn of Penrhos, the leader of the opposition! In any event, in Book IV Satan made an unusually short and effective speech—and by no means his maiden. Milton, who followed him in the debate—and he was clearly supporting the government—did not feel obliged to compliment Satan on his speech. Instead he said:Thus spake the Fiend, and with necessity, The tyrant's plea, excused his devilish deeds"—a touch of asperity of speech in those words, I think. William Pitt picked up those words when he said in another place exactly 120 years later, in 1783:Necessity is the plea for every infringement of human freedom. It is the argument of tyrants"—which just shows that Pitt had read his Milton.
I attach special importance to the words of Pitt in the context of this Bill because it has for 300 years at least been one of the prime functions of Parliament to scrutinise closely any exercise of extraordinary powers taken by the Government. So the ability of this country to preserve freedom has been admired by others, from Voltaire to Dahrendorf. Lord Jellicoe, in paragraph 10 of his report, actually quoted Dahrendorf's recent words on this subject.
But it is as well to remember that Parliament does not always succeed as well as it should. For example, the emergency powers taken in the last war, expressed to last only so long as the emergency existed, were extended annually by the Expiring Laws Continuance Act, and were not finally extinguished until 1970, 25 years after the expiry of the emergency. So there is no room for complacency.
I very much welcome the provisions of Clause 17, following as they do, deliberately, the provisions of the Armed Forces Acts. This is, in my view, the proper model to follow in this Bill. However, I am not at all sure that simple annual renewal by affirmative instrument of the whole Act is sufficient as a parliamentary safeguard, even though the duration of the Act is expressed to last only a maximum of five years. The noble Earl, Lord Jellicoe, was particularly cautious about Part II—exclusion orders; indeed, he said in his report, in Chapter 9,that the possibility of abolishing it"—that is, the power to exclude—should be kept under regular review, without prejudice to the Act's other powers".That is in paragraph 178.
899 I know that among the Home Secretary's advisers on exclusion are the noble Lord, Lord Alport—and no one could possibly describe him as a stern, unbending Tory—and the noble Lord, Lord Underhill, who is essentially a fair-minded man. But, even so, bearing in mind the noble Earl's own reservations about these provisions, I should like to see a separate affirmative resolution annually in respect of Part II. This is a more limited proposal than that referred to by the noble Lord, Lord Wigoder, which was put forward in another place by the right honourable Member for Down, South, on 25th January, and about which the Minister of State said:We shall consider that suggestion seriously".I very much hope that something on those lines will be pursued in this House and accepted by the Government. This, I think, would be a better and more appropriate safeguard than other courses that have been urged. Here I agree with Lord Wigoder; I do not consider that an appeal tribunal or some sort of judicial monitoring is suitable. The powers taken in this Bill are outside the competence of the court, and it is no use having judicial review of essentially non-judicial proceedings.
I have only one further comment before I sit down. My sole criticism of the Jellicoe Report was that after rehearsing all the arguments for making the provisions of the Act temporary it none the less, quite illogically to me, concluded that the words "temporary provisions" should be left out of the Short Title. I am glad to see that those words were inserted into the Short Title on a free vote in Standing Committee in another place shortly before Christmas. That seems to me entirely right and proper. My Lords, I thank the House for its pacific reception of my few remarks.
§ 3.54 p.m.
§ Lord Shackleton
My Lords, it has been my privilege to congratulate many maiden speakers, but I know of no occasion when I have been more happy to perform this duty than today. I have already paid a tribute to the noble Lord, at the time of his retirement as Clerk of the Parliaments, and it was very clear then how strongly the House thought of the value of his services and how sad noble Lords were that he was going to depart. But, luckily, he has not departed at all; and it is a measure of his popularity and of the appreciation we have of him that your Lordships' House has filled, not to listen to me—it did not even fill very much to listen to the Minister; or may be it is the Statement—but to hear the noble Lord, Lord Henderson.
I was about to say that the noble Lord is a gamekeeper turned poacher, but that is clearly inappropriate. He is a lonely atoll, a coral atoll, and we are quite sure that he will continue to purify our debates with his wisdom and the common sense and scholarship which he has shown already. If I may call him my noble friend, which is unusual, I am bound to say that if anybody is a noble friend of any of your Lordships it is the noble Lord, Lord Henderson of Brompton. His speech was a model of scholarship and wisdom and firmness. If I may say so, I have always felt that maiden speakers should not shrink from saying what they think. There is this rather misleading 900 concept that they must not be controversial, which means they must not say anything at all. They must say something. What they must seek to do is to avoid being so provocative that noble Lords wish to leap up and assault them. In this the noble Lord has more than succeeded.
I wish to intervene in this debate only very briefly—and it is a very happy circumstance that I have had this extra reason—to give my support to the legislation in front of your Lordships' House. I admired my noble friend Lord Mishcon's speech; it was the most skilful presentation of many issues which concern us all. But at the end of the day I genuinely believe we would be wrong not to renew this legislation. I am amazed that the Government—and I pay my tribute to the noble Viscount—have accepted virtually all Lord Jellicoe's recommendations. No one has welcomed the amelioration of the 20 years' qualification for exclusion: the 20 years after which people could not be excluded has been reduced to three years. It is a very valuable change that exclusion orders are to be reviewed after three years. I am rather sorry I did not think of this myself; I think the noble Earl, Lord Jellicoe, has done a better job than I did. But at the end of the day he, like I, having seen the evidence, having looked at the evidence in detail, having seen the intelligence, having talked to many policemen and others in private, having heard excellent evidence against from bodies like the National Council for Civil Liberties, which I regard as a valuable institution, nonetheless came firmly to the conclusion that it was necessary to have this sort of legislation.
I am bound to take issue with my noble friend Lord Mishcon—and I know that the noble Lord Lord Donaldson, is going to do so—on his use of statistics. I have not got them at my fingertips. I used them a few months ago, and I am glad to say that they have escaped me. Of course a great majority of the' people detained, particularly at the ports, are detained for only a few hours—much less than many people who are taken into custody by the police before they are charged. In fact, the numbers detained for any length of time are relatively small. I rely on the noble Lord. Lord Donaldson, to set the record straight, since he has given notice that he is going to do so, and therefore my speech will be shorter.
At the same time, I should like to ask the Minister what steps are now being taken about the recommendation I made, and to which Lord Jellicoe referred, that conditions should be further improved for those who are detained for any length of time. Detention up to seven days in the Bridewell is enough to make many people, whether properly interrogated or not, have nervous breakdowns. That is especially so if the diet is inadequate. I hope we can hear something more about that.
That brings me to another point on amelioration—the extent to which the Government now give financial assistance to those who are excluded. It is very severe to exclude someone from his home and his job to go to other territory—possibly back to the Republic of Ireland or Northern Ireland—and it may sometimes involve heavy financial loss. Something could be done to help rather more on that.
901 One of the arguments that I offer to those of my noble friends who wish this legislation to disappear is to ask them whether they are aware of the importance of the legislation in restraining counter-terrorism. There have been some horrible terrorist acts by those who have been attacking the Catholic community, and I do not believe that any Government at this time could possibly come before Parliament in the light of the atrocities that continue and say, "We are now going to dispense with this legislation".
We may have particular criticisms—I still dislike Clause 11—as the noble Lord, Lord Mishcon, said. Certainly when I carried out my investigation I had no evidence to justify it and it had a nasty ring to it. On the other hand, the noble Earl, Lord Jellicoe, went into this issue very thoroughly. He found evidence and has come to an opposite conclusion; but I still wonder how necessary it is because it was that aspect of the report which I found most objectionable in terms of civil liberties. I also share concern on Clause 12. I totally accept the sincerity of the Government that they will issue instructions that the clause is not to be used in the way that some fear. However, even at this stage, I should like to ask if they will consider further whether there is some way of providing for legislation.
The Government have behaved absolutely correctly in their extension to Clause 12 in not seeking to use the Act unamended. It would have been improper for them to have done so. It is therefore perfectly proper to put in this provision on international terrorism. I still question how valuable and how necessary it is, notwithstanding the horrible event that has just taken place. Nonetheless, that is something that will need to be looked at.
I conclude by saying that when the Bill was originally introduced by the right honourable Roy Jenkins he referred to it as draconian. At that time I pointed out that any classicist would know that Draco—I know the noble Lord, Lord Elton, will take this point—went in for rather more severe treatment than is represented by this Bill. This is a minimum intervention into our civil rights. We are right to question it and to find objection; but if at the end of the day we find it reduces—it is my judgment and that of the noble Earl, Lord Jellicoe, that it will—the amount of terrorism, murder and maiming that otherwise would take place we would be failing in our duty not to renew these measures. The noble Lord referred to the conflict between human rights and public safety. Public safety involves individuals, and the individuals who were murdered and maimed outside Harrods are part of the public safety but they are also individuals. Therefore, I think it is right that we should renew this legislation. It is right that we should be critical, but I certainly support it.