§ 3.7 p.m.
§ Report received.
§ Clause 11 [Assisting in retention or control of terrorist funds]:
Lord Mishcon moved Amendment No. 1:
Page 7, line 15, at end insert—
("Nothing in this subsection shall prevent a lawyer from accepting money in respect of his costs.").
§ The noble Lord said: My Lords, I hesitate to give the impression to the House that the amendment I am about to move involves professional self-interest. It does not. It relates to the position of somebody who is charged with being in possession of terrorist funds. Clause 11(1) of the Bill covers other matters relating to improper connections with terrorist funds. I shall use shorthand for the purpose of the amendment and talk in terms of possession of terrorist funds.
§ Unless we clarify the position, somebody charged with being in possession of terrorist funds could be refused legal aid because he would be returning possession of funds. That would in all likelihood disentitle him to legal aid. The lawyer he approached for advice would have to say that he could not act for him because he had been charged with being in possession of terrorist funds, which probably covered all that he had. The lawyer could possibly be committing a crime himself if his costs were paid from terrorist funds. In those circumstances the man has no chance of obtaining proper legal advice.
§ I am sure that that is not the intention of Clause 11(1). However, the Law Society authorises me to say that it is anxious about the position. That is why I have put down the amendment. I beg to move.
My Lords, the House will acquit the noble Lord of moving an amendment in which he has not only a proprietorial interest but also a financial one. The question is whether Clause 11 would penalise a solicitor who received his costs from his clients from what turned out to be terrorist funds. I know that that alone would acquit the noble Lord, Lord Mishcon, of any financial interest.
The noble Lord feared that the solicitor would be committing an offence and that the money could be forfeited. I think that those fears are unfounded. The offence is concerned with an arrangement whereby another person's control or retention of funds is facilitated. The solicitor himself could not be committing that offence by simply receiving his costs. If anyone is to be convicted in those circumstances, it would be the client—if indeed the money were terrorist funds. But the money could not be forfeited in any proceedings under Clause 11 if the solicitor were able to satisfy the court that it would not be used for terrorism. There is full protection for third parties in those circumstances under Clause 13(5) of the Bill. I hope that I have been able to reassure the noble Lord that his fears are unfounded.
§ Lord Mishcon
My Lords, I noted that the noble Earl said, with his usual modesty and moderation, that he thought my fears were unfounded. Is he 1366 saying categorically that the fears are unfounded? If that is what he is saying even though it is not written in the Bill, I do not propose to take up the time of the House any longer, but it would help me if he would care to revise the words with which he opened his remarks.
My Lords, if I may have the leave of the House, I can only say that I cannot possibly tell the extent of the noble Lord's fears. However, I can say that my belief is that—The noble Lord shakes his head, but he has asked me an impossible question. He has asked whether I can say that his fears are unfounded. I do not know what his fears are. I can only tell him that what I believe to be his fears are in fact unfounded and that a solicitor who gives professional advice is entitled to be paid his costs. Only the funds that belonged to another person would have to be forfeited, but a solicitor is entitled to his costs.
§ Lord Mishcon
My Lords, I thought that I had expressed my fears in the wording of the amendment and my reasons for it. However, I do not intend to take up the time of the House any longer. I interpret the Minister's remarks to mean that the amendment is unnecessary because it would be perfectly proper for a lawyer, without committing any offence, to do what I was trying to cover in my amendment. With that assurance from the noble Earl—his assurances are always accepted by the House with great favour—I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 3.15 p.m.
§ Clause 14 [Arrest and detention of suspected persons]:
Lord Mishcon moved Amendment No. 2:
Page 9, line 41, leave out ("The Secretary of State") and insert ("A circuit judge (or in the case of Scotland a sheriff)").
§ The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 2 to 7, 12, 14, and 20 to 24, which, as noble Lords will see, take up most of the amendments on the Marshalled List.
§ It will be recollected that when we last debated this measure the Committee endeavoured to wrestle with the trying problem of a case called In Re Brogan and Others. Perhaps I may be permitted to tell the House, in just a few words, what that decision was about.
§ The European Court of Human Rights dealt with a case in which a man accused under the provisions of the Prevention of Terrorism Act had been kept in custody by the authorities for a period of seven days or more. That had happened without the person so detained being charged and without any judicial process taking place in which he was or could have been a party. In view of an intervention made on the last occasion by the noble Lord, Lord Boyd-Carpenter, let me make it abundantly clear that that court, which, as I humbly reminded him, is a court of justice—we were signatories to the Convention on Human Rights—absolved Her Majesty's Government from any culpability with regard to the breach of the convention concerning the period of detention. The seven-day period was not in itself 1367 objectionable in the conditions provided for under the convention.
§ As regards the court, the sole matter at issue in that context was that no judicial process had been brought into existence, so that for a period of up to seven days the man was held in detention without charge. That was purely an executive act carried out by the Secretary of State.
§ I ventured to put before the Committee an amendment which made it obligatory to go ex parte before a magistrate or, in the case of Scotland, a sheriff. The amendment provided that a constable, or someone of a rank above constable, should have to go ex parte before a justice of the peace or, in Scotland, a sheriff and explain on oath why he wanted an extension beyond the 48 hours, be it for the remaining five days to make it up to seven days, or whatever. The judicial process would thus be fulfilled.
§ My amendment ran into criticism which, I am bound to admit, was justified. The first criticism took the form of a plea by a noble Lord whose wife is a magistrate and who, on her behalf—as I understood it—said that she would be quite incapable of understanding an application of that kind. I am sure that the noble Lord underestimated the intelligence of his wife who is no doubt a very able justice of the peace. However, it was said that this was too important a matter for a justice of the peace.
§ The other criticism was that the matter should not be dealt with at as low a rank as constable. So I went away to think and received some considerable assistance to my thoughts from the very worthy organisation known as Justice. Noble Lords will know that many eminent lawyers serve on that body. They produced an amendment which went back to the idea of the magistrate and the constable, but they worded it in a very much better and more comprehensive way than I had done in my original amendment.
§ However, bearing in mind those two criticisms—I shall deal with a third criticism in a moment; namely, that it should be a higher judicial authority than a magistrate and a higher rank than a police constable—I put down within the framework of Justice's amendment an amendment which noble Lords will have seen on the Marshalled List. It provides not for a magistrate but for a circuit judge, or, in the case of Scotland, a sheriff. It also provides that the person swearing the information and making the application should be of at least the rank of inspector of police.
§ I thought that I had then covered the two main criticisms, but there was a third criticism which came, most understandably, from the Minister. The burden of his complaint about the amendment—I do not in any way say that he otherwise accepted it—was that the difficulty that the Government faced in dealing with In Re Brogan was that one did not want to reveal to the person concerned the evidence that had so far been adduced by the authorities or show him the gaps in the evidence that might so far have been revealed in the process of examining a detainee.
§ I have tried hard, together with Justice, to get over 1368 that difficulty, as your Lordships will see in this amendment, by providing that the information which has to be laid before the circuit judge (and the application of course is one of which the accused will have notice and at which he will be entitled to be represented) are (a) the grounds on which the person to whom the application relates has been detained—that merely is answered by, "He is suspected of being a member of a terrorist organisation", or whatever, or being in possession of arms or documents by way of propaganda of which he should not be in possession; and (b) the reasons for believing his continued detention to be necessary.
§ I have limited the information to those two points. The reasons for believing his continued detention to be necessary are quite obviously matters that do not affect the authorities in regard to their finding out whatever they wish to find out. All they have to say is, "We want the man to be detained for a further period of so many days because he has so far failed to reply to any of the questions we have put to him. He has been non-co-operative", or whatever may be the case. I hope that I have dealt with the lacunae in the amendment that I put to the Committee at the previous stage.
§ Noble Lords may wonder why I am putting this down at Report stage when the Minister has said that the Government were considering this matter. It required much consideration and the Government had not yet made up their mind. I shall tell the House frankly why. At the very outset, at Second Reading of this Bill in the other place the Home Secretary in introducing the Bill talked about the difficulties that faced the Government and his department with In Re Brogan in regard to derogation from the convention. He said in so many words—but I assure the House that I accurately paraphrase what he said—that this was obviously something that must be dealt with before the Bill left that House. Then the Secretary of State—I have no doubt for good reason—made it known at the very last stages of the Bill that he was not in a position to deal with In Re Brogan or the question of derogation generally before the Bill left the other place and that it might very well be, and indeed I think he almost certainly stated that it would be, that the matter would not be dealt with before the Bill hopefully became an Act and was on the statute book.
§ That cannot be right. The situation of In Re Brogan was known when the matter came before the European Court of Human Rights. That is not a process by which a hearing takes place in a couple of weeks. The difficulty was known for a considerable period. The obligations under the convention, to which we are a signatory, were known ever since we signed it. The provisions of this Bill were well known for quite a while to those who are responsible for the Bill now coming before your Lordships' House.
§ To leave the matter in vacuo is wrong for the following reasons. First, your Lordships are entitled, in my humble submission, to say that you will not allow this Bill to leave this responsible House without tackling a problem which is part and parcel of this Bill and all that it provides for, namely, the right to detain in certain circumstances, which all of us acknowledge must be there—the courts acknowledge 1369 that that is perfectly right—without providing for a proper judicial process. This House above all Houses in my view is entitled to know that we are not lightly in breach of a convention and are not lightly in derogation of a solemn convention into which we have entered.
§ For the life of me I cannot see why thoughts in March 1989 are any less good thoughts than they will be in May, June or July 1989, after all the consideration that could have been given to this matter, and the consultation that could have taken place in Ireland and elsewhere. It is because of my feeling, first—and I put it this way with humility on behalf of those I represent on these Benches, but I believe in other quarters of the House too—that when we have a responsibility as legislators we fulfil it and we meet problems head on and try to solve them and do not just delay them. Secondly, I do not think that the House lightly wishes to take a derogation from a solemn convention. Thirdly, if it does nothing else, this amendment makes the Government say what is wrong with an amendment which now fulfils the conditions which I did not fulfil last time in the view of some of those who spoke at Committee stage; namely, the rank of the judiciary to decide this matter, the rank of the police officer who lays the information, and, lastly, the shield—in so far as one can supply a shield—with regard to the detainee being given information that he should not be given in the interests of the authorities which are trying to protect us under this Bill. I beg to move.
§ Lord Hylton
My Lords, as we are at Report stage, and as I have been involved to a small extent in discussions in your Lordships' House on previous Bills and renewals of the previous Act, I should apologise for having been absent from the earlier stages of this Bill. That arose through absence abroad and through illness at home.
We should all be extremely grateful to the noble Lord, Lord Mishcon, for bringing forward this series of amendments. Since the case of In Re Brogan I have been in correspondence with the Secretaries of State in both the Home Office and the Northern Ireland Office on this precise matter. I further wrote to the noble Earl, Lord Ferrers, about this question of review of such cases by a judge rather than the Secretary of State himself. The noble Earl was kind enough to say in his reply that he thought what I had suggested was worthy of examination and I am grateful to him for that.
It seems to me to be a great improvement if we can have a judicial review rather than an executive review. It is clear that the noble Lord, Lord Mishcon, has taken a great deal of trouble to get right the exact procedure. It would be helpful if in replying the Minister could tell us the effect of this amendment in terms of numbers of days during which a person can be detained without charge. There may be an initial period of 48 hours. Then we have heard mention of five days. Does that add up to seven days, or could it perhaps be longer? The European convention, as interpreted by the court in the case of Brogan, put the limit at about five days. Obviously one hopes that the period during which people can be held without charge can be kept to a minimum, but at the same 1370 time one recognises that elaborate police inquiries may have to be made that may involve the police forces of more than one country or jurisdiction. Having said all that, perhaps I may support as strongly as possible this series of amendments.
§ 3.30 p.m.
§ Lord Harris of Greenwich
My Lords, I shall speak very briefly on this amendment. On the last occasion I was not persuaded that the amendment of the noble Lord, Lord Mishcon, was right. I did not like the idea of justices of the peace becoming involved in this process. The noble Lord has taken account of my concern and that of others by introducing the circuit judge, which is a major improvement. If the Government are to act on Brogan, as I very much hope they are, I consider that in many respects the approach of the noble Lord, Lord Mishcon, is probably the approach that the Government will have to adopt. I take that view because I can seen no other way in which one could take account of the decision of the European Court without moving in the direction of an ex parte application of the kind that the noble Lord has recommended in the amendment.
On the last occasion I said that I thought that there were problems associated with the amendment of the noble Lord, Lord Mishcon, and I also recognised that these are immensely difficult questions. I consider that they require very careful thought indeed, otherwise our response to terrorist operations could be endangered. However, I found the noble Earl's reply at the end of that debate very persuasive. He may recall that I asked him whether he could indicate if the Government would announce their decision by the Summer Recess which gave the noble Earl the opportunity to say that he very much hoped so. But noble Lords will recall that he gave no such undertaking. I found his reply rather depressing.
My noble friends and I have gone through the Lobbies with the noble Earl on every occasion there has been a Division on this matter. We have supported the Government, rightly in my view, in their determination to maintain the exclusion order provisions and we are firmly in favour of the right of detention for periods of up to seven days. But we also take the Brogan decision extremely seriously. I hope that the noble Earl will give us some reason to hope that the Government are moving towards a decision in this matter and that it will be announced very soon to Parliament.
My Lords, the noble Lord, Lord Mishcon, has put down this amendment: on the same subject as he did at Committee stage. The noble Lord has struggled with the problem which besets us all. He has genuinely tried to find a way round it and for that I am grateful to him. He has admitted that there is a problem, which indeed there is. The noble Lord, Lord Harris of Greenwich, agrees that it is an immensely difficult problem. I do not want to underestimate the size of it nor would I wish to give to your Lordships the feeling that the Government are not taking it seriously or are dragging their heels over coming to a decision.
1371 The noble Lord, Lord Mishcon, said that my right honourable friend the Home Secretary had suggested that there would be an announcement before Second Reading. What he said was:We can decide to derogate under the convention in respect of the exercise of these powers, as provided for in Article 15 of the Convention; or we can introduce a judicial element into the procedure…the [European] Court recognised the difficulties of judicial control over decisions to arrest and detain suspected terrorists.My right honourable friend also said that the Government are examining the problem with an open mind. He said:I shall bring forward our proposals, as the House is entitled to expect before the Bill leaves this House."—[Official Report, Commons, 6/12/88; col. 211.]The noble Lord, Lord Mishcon, is entirely right and justified in drawing attention to what my right honourable friend said. He said it in good faith thinking that it would be possible.
When it came to trying to decide exactly what should be done and the negotiations and discussions which would have to go on, the problem became more difficult. On the 22nd December my right honourable friend the Home Secretary said:In the time available since the European Court of Human Rights published its judgment on 29th November we have begun work on these difficult issues and have entered into discussions with the judiciary…these have persuaded us that a further period of reflection and consultation is needed before we can bring forward a firm and final view. We will, of course, inform the House as soon as that view is reached."—[Official Report, Commons Standing Committee B; 22/12/1988; Col. 235.]That is what the position has been since the Bill was in another place. I should inform your Lordships that a great deal of care and attention is being given to the problem. We have not yet found what we believe to be the correct solution. The reason is that when a recommendation is made like this my right honourable friend the Home Secretary cannot just say that we will alter all our procedures. We have to find a way round this and have proper negotiations. It is only when we come to the correct result that it is proper for the Government to make their proposals. As the noble Lord, Lord Harris, said, there must be a great deal of care about it because this Bill is against terrorism. If we come to the wrong conclusion and as a result do not manage to restrict terrorism in the way the Bill provides, then we shall have made an error.
I ask the House to wait until my right honourable friend, with all the expertise and care at his disposal, is able to bring forward a recommendation before we put something into the Bill. It is perfectly possible and I understand the desire of the noble Lord, Lord Mishcon, to put something into the Bill. But if we did that and then found in retrospect that it was wrong, we should have made an error which might turn out to be against our efforts against terrorism.
I make this point just for clarity. The description by the noble Lord, Lord Mishcon, of the Brogan case was not quite accurate. The men were not detained for periods of seven days or more. Two were detained for just over six days and two others were detained for just over four days. The maximum period of detention under the existing law and under Clause 14 is seven days in all; that is, two days and then up to 1372 five days more with the authority of the Secretary of State.
The noble Lord, Lord Harris, said that he asked me at Committee stage whether my right honourable friend would be able to make a statement by the Summer Recess. I understand his desire. I should like to be able to say yes, he will, but I cannot give an undertaking as to time. It may be before the Summer Recess. This matter is being given a great deal of effort and attention. It would be difficult and probably foolhardy if I were to say that I can guarantee that my right honourable friend will come up with a decision by a certain date. I ask your Lordships to bear with me and understand that this difficult subject is giving my right honourable friend considerable cause for thought.
I explained at Committee stage the difficulties which stood in the way of our coming to Parliament with a response to the proposals which the noble Lord, Lord Mishcon, had made. I find it difficult to say when my right honourable friend will be able to produce his response. I cannot say today when that response will be brought forward, but I assure your Lordships that all those who are concerned with this matter are treating it with considerable urgency and importance. We are endeavouring to resolve it as soon as possible.
The noble Lord, Lord Mishcon, outlined the effects of his amendment, as he always does, with great clarity. Under his amendment there would be a court hearing, but it would not be in open court. The detained person would not be present at the hearing but he could be legally represented. The police would have to give the judge the grounds on which the person had been detained and the reasons why they believed continued detention to be necessary. Those reasons would be made known to the detained person or to his representatives.
There are difficulties with such a scheme because, for example, the information which is then available to the police may not be of the kind that they can reveal, even in the restrictive setting envisaged by the amendment. They are precisely the kind of difficulties that we are examining.
The noble Lord, Lord Mishcon, is generous and understanding. When I say that they are the kind of difficulties that we are examining he will realise that that is so. If the police are to give to the judiciary the reasons why they wish to detain the person further, they will also have to give to his representatives knowledge which they do not wish to release. They would not wish to release that information because they are trying to curtail terrorism.
I regret to say that today I am unable to be more helpful to the noble Lord and to the House than I was in Committee. The debate has served to highlight the difficulties which we face in introducing a judicial scheme for extending detention. I shall ensure that my right honourable friend is seized of the concerns which your Lordships have expressed.
§ Lord Hylton
My Lords, before the noble Earl sits down I should like to ask a question about numbers. Under previous Acts the number of people detained for more than 48 hours has been small and, in the 1373 nature of things, it is likely to remain small even when this Bill is enacted. Does the Minister therefore agree that the number of cases likely to arise can be dealt with by one judge sitting in chambers in Belfast, plus one other judge sitting in London on occasions?
My Lords, that is a matter of detail. The principle is important. The principle which I have tried to explain to your Lordships—and it is one that causes concern—is that under the amendment it would be necessary to explain not only to the judge but also to the defendant's representatives the reasons for requiring further detention. As soon as one has done so, one has released to the representatives of the detained person information which is vital.
§ Lord Mishcon
My Lords, there are very few occasions on which I have felt sorry for the Minister. The reason why the occasions have been so few is that his ability and courtesy are so well known to this House that one finds him to be a most formidable spokesman for the Ministry that he decorates.
On this occasion I am sorry for the Minister because the ineptness which the reply appears to show in the Government's ability to think, consider and consult is manifest to all Members of your Lordships' House.
I repeat that the Government have been aware of this matter ever since they signed the convention. I am not here to make it easy for any terrorist. I am here, together with my noble friends—and I know that I speak for the noble Lord, Lord Harris, and his noble friends—in order to do everything that we can to assist the Government to apprehend terrorists and ensure that they face justice. The accent is on justice and fulfilling the obligations into which we have solemnly entered.
I could understand consideration being given to the problem between the time when the matter first went to the European Court of Human Rights and November when the Home Secretary spoke. The noble Earl was kind enough to quote his words on Second Reading. The Home Secretary then said in definite terms that this was a problem (derogation or the other solution) which would come before the other place before the Bill left that place.
That forecast for thinking and action by the Government was not kept. Let us say that it was not kept for good reason. There was the interval between then and the matter coming before your Lordships' House. The matter was raised on Second Reading and still there were no thoughts from the Government. The matter was raised again in Committee and a constructive amendment was tabled before your Lordships, however defective. One hopes that the defects have been remedied and this amendment on Report is the result.
What is the problem faced by the Government? It is perfectly simple. Do you derogate, in which case one faces the issue? From these Benches I am not saying that we should not support the Government in such a decision. At the moment I take no view on the matter because I have no ability to do so on behalf of my party. I say here and now that the matter would be given sympathetic consideration because a 1374 decision had been reached. We should say, "There are provisions for derogation, we take advantage of those provisions and we derogate. We are not a Government who fumble about with human rights and come to no decision. We are not a Government incapable of taking legal advice and knowing what our procedures are within a matter of months. We have reached a decision".
Alternatively, it is a judicial process. What other judicial process is known to any of us, other than to go before the lowest form of the judiciary? In saying that, I intend nothing derogatory of that worthy band of justices of the peace, but they happen to be the lowest form of judiciary. We rise above that to a circuit judge, who is the only alternative. If it is said that it cannot be a circuit judge but it must be a High Court judge which is what the Government say, we should consider what other alternatives there are.
The Government dither and say, "In regard to the Bill, let it go through. The European Court does not know the answer even yet. No one else knows the answer to the problem. We do not have it yet. We in the United Kingdom cannot make up our minds as to whether we want a judicial process or whether we derogate". That must be wrong.
As a measure of protest, if nothing else, against the dithering way in which this vital matter is being dealt with, and with no undertaking from the Minister in answer to the frank question again put to him by the noble Lord, Lord Harris, I have no alternative but to divide the House.
§ 3.48 p.m.
§ On Question, Whether the said amendment (No. 2) shall be agreed to?
§ Their Lordships divided: Contents, 108; Not-Contents, 149.1376
|DIVISION NO. 1|
|Airedale, L.||Fitt, L.|
|Amherst, E.||Flowers, L.|
|Ardwick, L.||Gallacher, L.|
|Attlee, E.||Galpern, L.|
|Aylestone, L.||Gladwyn, L.|
|Bonham-Carter, L.||Glenamara, L.|
|Boston of Faversham, L.||Graham of Edmonton, L|
|Bottomley, L.||Grey, E.|
|Briginshaw, L.||Grimond, L.|
|Brooks of Tremorfa, L.||Hampton, L.|
|Bruce of Donington, L.||Hanworth, V.|
|Callaghan of Cardiff, L.||Harris of Greenwich, L.|
|Carmichael of Kelvingrove, L.||Hatch of Lusby, L.|
|Carter, L. [Teller.]||Hayter, L.|
|Cledwyn of Penrhos, L.||Hirshfield, L.|
|Cocks of Hartcliffe, L.||Houghton of Sowerby, L.|
|Cudlipp, L.||Hughes, L.|
|David, B.||Hunt, L.|
|Davies of Penrhys, L.||Hunter of Newington, L.|
|Dickinson, L.||Hylton, L.|
|Dormand of Easington, L.||Irvine of Lairg, L.|
|Elwyn-Jones, L.||Irving of Dartford, L.|
|Ely, M.||Jacques, L.|
|Ennals, L.||Jeger, B.|
|Evans of Claughton, L.||Jenkins of Hillhead, L.|
|Ewart-Biggs, B.||Jenkins of Putney, L.|
|Ezra, L.||John-Mackie, L.|
|Falkland, V.||Kilbracken, L.|
|Fisher of Rednal, B.||Killanin, L.|
|Kirkhill, L.||Ritchie of Dundee, L.|
|Kirkwood, L.||Rochester, L.|
|Lawrence, L.||Ross of Newport, L.|
|Listowel, E.||Rugby, L.|
|Lloyd of Hampstead, L.||Russell, E.|
|Lloyd of Kilgerran, L.||Sainsbury, L.|
|Lockwood, B.||Seear, B.|
|Longford, E.||Seebohm, L.|
|McCarthy, L.||Serota, B.|
|Macauley of Bragar, L.||Shepherd, L.|
|Mackie of Benshie, L.||Simon of Glaisdale, L.|
|McNair, L.||Stallard, L.|
|Masham of Ilton, B.||Stedman, B.|
|Mayhew, L.||Stewart of Fulham, L.|
|Mellish, L.||Stoddart of Swindon, L.|
|Mishcon, L.||Taylor of Blackburn, L.|
|Nicol, B.||Taylor of Mansfield, L.|
|Northfield, L.||Turner of Camden, B.|
|Ogmore, L.||Underhill, L.|
|Paget of Northampton, L.||Wallace of Coslany, L.|
|Peston, L.||White, B.|
|Ponsonby of Shulbrede, L. [Teller.]||Williams of Elvel, L.|
|Prys-Davies, L.||Winstanley, L.|
|Raglan, L.||Winterbottom, L.|
|Aldington, L.||Fortescue, E.|
|Allerton, L.||Fraser of Kilmorack, L.|
|Alport, L.||Gisborough, L.|
|Ampthill, L.||Glenarthur, L.|
|Arran, E.||Goold, L.|
|Ashbourne, L.||Gray of Contin, L.|
|Atholl, D.||Greenway, L.|
|Auckland, L.||Gridley, L.|
|Bauer, L.||Grimston of Westbury, L.|
|Belhaven and Stenton, L.||Grimthorpe, L.|
|Bellwin, L.||Hailsham of Saint Marylebone, L.|
|Belstead, L.||Halsbury, E.|
|Bessborough, E.||Harmar-Nicholls, L.|
|Blatch, B.||Harvington, L.|
|Borthwick, L.||Havers, L.|
|Boyd-Carpenter, L.||Henderson of Brompton, L.|
|Brabazon of Tara, L.||Henley, L.|
|Broadbridge, L.||Hesketh, L.|
|Brookes, L.||Hives, L.|
|Bruce-Gardyne, L.||Holderness, L.|
|Burton, L.||Home of the Hirsel, L.|
|Butterworth, L.||Hood, V.|
|Caithness, E.||Hylton-Foster, B.|
|Caldecote, V.||Ironside, L.|
|Campbell of Alloway, L.||Jessel, L.|
|Campbell of Croy, L.||Johnston of Rockport, L.|
|Carlisle of Bucklow, L.||Kaberry of Adel, L.|
|Carnegy of Lour, B.||Killearn, L.|
|Carnock, L.||Kinloss, Ly.|
|Chelwood, L.||Kitchener, E.|
|Clitheroe, L.||Knutsford, V.|
|Coleraine, L.||Lauderdale, E.|
|Colnbrook, L.||Liverpool, E.|
|Constantine of Stanmore, L.||Long, V.|
|Cottesloe, L.||Loudoun, C.|
|Cox, B.||Lovat, L.|
|Cranbrook, E.||Lucas of Chilworth, L.|
|Cullen of Ashbourne, L.||Luke, L.|
|Dacre of Glanton, L.||Lurgan, L.|
|Daventry, V.||Lyell, L.|
|Davidson, V. [Teller.]||Manchester, D.|
|De Freyne, L.||Manton, L.|
|Denham, L. [Teller. ]||Margadale, L.|
|Dulverton, L.||Marley, L.|
|Dundee, E.||Massereene and Ferrard, V.|
|Eccles, V.||Merrivale, L.|
|Effingham, E.||Mersey, V.|
|Ellenborough, L.||Middleton, L.|
|Elliot of Harwood, B.||Milverton, L.|
|Faithfull, B.||Mottistone, L.|
|Fanshawe of Richmond, L.||Mowbray and Stourton, L.|
|Ferrers, E.||Nelson, E.|
|Nelson of Stafford, L.||Saltoun of Abernethy, Ly.|
|Norfolk, D.||Sanderson of Bowden, L.|
|Norrie, L.||Selkirk, E.|
|Northbourne, L.||Sempill, Ly.|
|Nugent of Guildford, L.||Shannon, E.|
|Onslow, E.||Shaughnessy, L.|
|Orkney, E.||Skelmersdale, L.|
|Oxfuird, V.||Strange, B.|
|Pender, L.||Strathclyde, L.|
|Penrhyn, L.||Suffield, L.|
|Porritt, L.||Swansea, L.|
|Portland, D.||Terrington, L.|
|Quinton, L.||Teviot, L.|
|Radnor, E.||Thomas of Gwydir, L.|
|Rankeillour, L.||Thomas of Swynnerton, L.|
|Reay, L.||Thorneycroft, L.|
|Renton, L.||Tranmire, L.|
|Renwick, L.||Trumpington, B.|
|Rodney, L.||Vaux of Harrowden, L.|
|Romney, E.||Wise, L.|
|St. Davids, V.||Wolfson, L.|
|St. Germans, E.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 3.56 p.m.
§ [Amendments Nos. 3 to 7 not moved.]
§ Clause 15 [Provisions supplementary to s.14]:
Earl Ferrers moved Amendment No. 8:
Page 10, line 45, at end insert—
("(10) Section 61(1) to (8) of the Police and Criminal Evidence Act 1984 (finger-printing) shall apply to the taking of a person's finger-prints by a constable under subsection (9) above as if for subsection (4) there were substituted—
(4) An officer may only give an authorisation under subsection (3)(a) above for the taking of a person's fingerprints if he is satisfied that it is necessary to do so in order to assist in determining—
or if the officer has reasonable grounds for suspecting that person's involvement in an offence under any of the provisions mentioned in subsection (1)(a) of that section and for believing that his fingerprints will tend to confirm or disprove his involvement."").
§ The noble Earl said: My Lords, Amendments Nos. 8, 11, 25 and 26 are linked together. The Government have brought forward these amendments in response to concerns expressed in the Standing Committee in another place about the criteria for the taking of finger-prints from persons detained under the Bill. The right honourable Member for Warley West suggested that the powers for finger-printing terrorist suspects could without much difficulty be brought closer into line with those in Section 61 of the Police and Criminal Evidence Act 1984. My honourable friend the Minister undertook to consider this suggestion further. On reflection we agree that this would be a very reasonable addition to the Bill. Your Lordships will see that there are separate amendments to Clause 15 and Schedule 5, dealing respectively with detentions under Clause 14 and detention at ports. In each case the effect is to apply Section 61 of the 1984 Act, with necessary modifications. There are, in addition, two consequential amendments, to Clause 28 and Schedule 8. I beg to move.1377
§ Lord Mishcon
My Lords, to show how much more reasonable I am than the noble Earl, I agree with his amendment.
§ On Question, amendment agreed to.
§ Clause 27 [Commencement and duration]:
Earl Ferrers moved Amendment No. 9:
Page 18, line 17, leave out ("and 28 to 30") and insert ("28 to 30 and 33K').
§ The noble Earl said: My Lords, Amendments Nos. 9,10,16,17,18 and 19 are all grouped together. Your Lordships will recall that we introduced into the Bill at Committee provisions to cope with insolvency and forfeiture. We have brought forward a number of amendments to these provisions, mostly of a technical and drafting nature. Although they are not all linked, it may be for the convenience of the House if they are considered as a group.
§ The most important of these amendments is Amendment No. 19. The provisions currently in Schedule 4 do not give insolvency practitioners in the islands, or a country which has been designated under the Bill, the same rights to deal with property which would otherwise be subject to a forfeiture order as an insolvency practitioner in the UK. We believe this could cause difficulties when we come to negotiating with other countries on terrorist finance. Amendment No. 19 puts this right. Amendments Nos. 9 and 10 are dependent upon this.
§ Amendment No. 16 is a technical amendment, which makes appropriate provisions in insolvency cases in Scotland, and also corrects drafting defects in respect of England and Wales. Finally, Amendments Nos. 17 and 18 are purely drafting. I beg to move.
§ 4 p.m.
§ Lord Mishcon
My Lords, I hope the House will not think that I am out of order in raising a point concerning the insolvency provisions which is not definitely in line with the amendment itself. The point has a relationship—I am trying awfully hard to bring a relationship into existence—in the sense that insolvency practitioners from another country are to be put into the same position in certain respects as insolvency practitioners in this country. Therefore, one is entitled to speak for one moment about the position of insolvency and insolvency practitioners in this country.
In Committee I ventured to utter a doubt as to whether the Committee and the Minister were not allowing in the original provisions of the Bill, as amended in Committee, the sort of activity in an insolvency that none of us would want to see. In other words, where funds are forfeited and handed over to an insolvency practitioner, in the event of the bankruptcy of a terrorist or someone assisting a terrorist and having in his possession terrorist funds, one can imagine all sorts of possibilities which are not particularly pleasant.
First, if one makes the position in insolvency a rather easier one for the expenditure of terrorist funds on improper purposes that would be opposed by all of your Lordships, and indeed by myself. Therefore, what is to stop somebody who is in that 1378 position declaring himself to be insolvent as a result of the claims made and the forfeiture that has taken place? Then, in the process of the insolvency, all kinds of spurious claims could be put forward to the insolvency practitioner who may or may not owe a duty to the Government and who may or may not owe a duty to bring the matter before the courts. Brothers, cousins and nephews—all of us who have practised the law have known enterprises of this kind—come forward by way of being creditors, having lent money, being owed money, and so on.
Therefore, in Committee I asked whether we were giving more protection than we intended in the case of terrorist funds. I knew that the answer would be that this is exactly the same as we provided for in the case of drug funds; if I may use that expression. There is a difference. A creditor in regard to someone carrying on business may well not know that the person concerned is in fact also carrying on the heinous business of trafficking in drugs. He may be a genuine trade creditor who falls for the idea of someone who owns a very wealthy-looking car or who occupies a wealthy-looking house. We are dealing with people of that nature. We are dealing with a person acting as a channel for terrorist funds or who is holding terrorist funds, and so on. I should have thought that that is a very different situation. So I raised the matter and the Minister courteously said that it was an important point and that he would like to have an opportunity of considering what I had said.
With his usual grace the Minister has written to me in the intervening period. I know I have his permission to read out a portion of the letter that is relevant. It is very short and states:We had indeed thought about this in preparing these amendments. Such a creditor"—he is speaking of a creditor who may be an agent for a terrorist organisation—would obviously have to identify himself to the insolvency practitioner. Since the assets for distribution in the insolvency include property in respect of which a forefeiture order was made under clause 13 of this Bill, a creditor with terrorist connections will be taking a big risk if he comes forward. He may well be committing an offence under the Bill. The insolvency practitioner will under clause 12 be able to disclose the matter to the police and, if they have good reason to be suspicious, they can draw on the powers of investigation in Schedule 7 in order to ascertain the facts and to institute proceedings if necessary.I hope this is helpful.I know that the Minister was endeavouring to be helpful and I am grateful to him for his kindness in writing to me. But I am not happy. I referred to this in Committee. I am not happy, first, because this does not cover the relative, the great friend who comes forward with an IOU, and so on—the insolvency practitioner who is in no way supervised under this Bill by anyone acting on behalf of those who forfeited the original funds. I am unhappy, also, that there is nothing which presumably allows the Government to have any further rights in regard to admitting claims to this money, which may well go back into terrorist hands. As I understand it, there is no way of dealing with the funds so forfeited after the money has been handed over to the insolvency practitioner whoever he may be, however patriotic he may be, however skilful he may be and however much he may or may 1379 not want to bring in the police or other authorities. I know that he would have to be a professional man and I hope therefore that he would act with due propriety.
I have no amendment before your Lordships. All I am doing on this occasion, because I am genuinely worried about what could be a gap, is repeating something, possibly in more detail than I did in Committee at rather a late hour, so that my remarks are on record. I hope the Government will see fit, before the Bill reaches its Third Reading, to produce certain safeguards so that the money, when passed to the insolvency practitioner, can still have the finger upon it of some government representative or other authority to see that nothing improper is done with the money and, if there are still claimants, that the insolvency practitioner has to account, as it were, to the forfeiting authority. Obviously I want to give the Government the opportunity to bring forward such safeguards between now and when the Bill is passed. That is the sole reason why, I hope helpfully, I have raised the matter on this amendment.
My Lords, I am grateful to the noble Lord, Lord Mishcon, for explaining his concern. He raised an important point in Committee. I have considered it and I thought that my answer was helpful. I am grateful to the noble Lord for saying that he thought my answer was helpful, because I thought it was too. I understood the problem, so I thought, which is not easy when dealing with insolvency matters. I am sorry that the noble Lord remains unhappy. I could hardly say that his unhappiness is misguided because that would be churlish, but I do not think that it is substantially founded. However, I will read what the noble Lord said and I will again write to him after further consideration.
It is important, however, to make this point. If a person comes up as a creditor in an insolvency case he is perfectly entitled to go to the practitioner and say that he is owed money. If in fact that person is not a bona fide creditor but is a terrorist he would be subjecting himself to interrogation because the practitioner would want to know why he was owed the money. If it transpired that he had exposed himself as a terrorist the insolvency practitioner would be obliged to tell the police. Therefore, it is unlikely that a person who is a terrorist supporter will actually go to a practitioner and ask to have back funds which he knew were of terrorist origin in the first place, because that is the reason why they had been taken.
If the police suspect that money may go back to the terrorist they can forbid the transaction and seek restraint. The insolvency practitioner can take the directions of the court under various provisions in the Insolvency Act 1986. I shall certainly read what the noble Lord has said. I am quite prepared to believe that I am wrong and if I am I shall write to the noble Lord and try to clear up his doubts.
§ On Question, amendment agreed to.1380
Earl Ferrers moved Amendment No. 10:
Page 18, line 20, after ("provisions") insert ("or different purposes").
§ The noble Earl said: My Lords, I spoke to this amendment when discussing the previous one. I beg to move.
§ On Question, amendment agreed to.
§ Clause 28 [Short title and extent]:
Earl Ferrers moved Amendment No. 11:
Page 19, line 36, leave out ("Part I of Schedule 4 extends") and insert ("section 15(10), Part I of Schedule 4 and paragraph 7(5A) of Schedule 5 extend").
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 8. I beg to move.
§ On Question, amendment agreed to.
§ Schedule 3 [Supervision of Detention and Examination Powers]:
§ [Amendment No. 12 not moved.]
Earl Ferrers moved Amendment No. 13:
Page 26, line 31, leave out ("intention to deport") and insert ("a decision to make a deportation order").
§ The noble Earl said: This is a drafting amendment. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 14 not moved.]
§ Schedule 4 [Forfeiture Orders]:
Earl Ferrers moved Amendment No. 15:
Page 34, line 41, leave out ("such property") and insert ("property to which the forfeiture order applies").
§ The noble Earl said: My Lords, this is a drafting amendment. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendments Nos. 16 to 19:
Page 47, leave out lines 41 to 48 and insert—
("(6) In any case where—
the property shall again become subject to the forfeiture order and, if applicable, any ancillary orders.
(7) If any property referred to in sub-paragraph (6) above is money, or has been converted into money, then—
Page 48, leave out lines 39 and 40 and insert—
("(iii) by any person appointed or directed to deal with any property by an order under paragraph 11(1) above; and").
§ Page 49, line 33, at end insert—
§ ("Insolvency practitioners in the Islands and designated countries
§ 33A.—(1) The Secretary of State may by order make provision for securing that an Islands or external insolvency practitioner has, with such modifications as may be specified in the order, the same rights under this Part of this Schedule in relation to property situated in any part of the United Kingdom as he would have if he were an insolvency practitioner in that or any other part of the United Kingdom.
§ (2) An order under this paragraph may make provision as to the manner in which, and the conditions subject to which, an Islands or external insolvency practitioner may exercise the rights conferred under sub-paragraph (1) above; and any such order may, in particular, make provision—
- (a) for requiring him to obtain leave of a court as a condition of exercising any such rights; and
- (b) for empowering a court granting any such leave to impose such conditions as it thinks fit.
§ (3) An order under this paragraph may make different provision for different cases.
§ (4) The power to make an order under this paragraph shall be exercisable by statutory instrument and, in relation to property situated in England and Wales, shall be so exercisable with the concurrence of the Lord Chancellor.
§ (5) A statutory instrument containing an order under this paragraph shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) In this paragraph—
Islands or external insolvency practitioner" means a person exercising under the insolvency law of a relevant country or territory functions corresponding to those exercised by insolvency practitioners under the insolvency law of any part of the United Kingdom;
insolvency law" has the meaning given by section 426(10) of the 1986 Act, except that the reference to a relevant country or territory shall be construed in accordance with this paragraph;
relevant country or territory" means—
§ The noble Earl said: My Lords, I spoke to these with Amendment No. 9. I beg to move them en bloc.
§ On Question, amendments agreed to.
§ Schedule 5 [Port and Border Control]:
§ [Amendments Nos. 20 to 24 not moved.]
Earl Ferrers moved Amendment No. 25:
Page 54, line 20, at end insert—
("(5A) Section 61(1) to (8) of the Police and Criminal Evidence Act 1984 (finger-printing) shall apply to the taking of a person's fingerprints by a constable under sub-paragraph (5) above as if for subsection (4) there were substituted—
(4) An officer may only give an authorisation under subsection (3)(a) above for the taking of a person's fingerprints if he is satisfied that it is necessary to do so in order to assist in determining—
§ The noble Earl said: My Lords, Amendments Nos. 25 and 26 were taken with Amendment No. 8. I beg to move Amendment No. 25.
§ On Question, amendment agreed to.1382
§ Schedule 8 [Consequential Amendments]:
Earl Ferrers moved Amendment No. 26:
Page 67, line 45, at end insert—
("( ) In section 61(9)(6) after "(b)" there shall be inserted the words "except as provided in section 15(10) of, and paragraph 7(5A) of Schedule 5 to, the Prevention of Terrorism (Temporary Provisions) Act I 989,".").
§ On Question, amendment agreed to.