---

Column 399

Paisley, Rev Ian

Patnick, Irvine

Pawsey, James

Porter, Barry (Wirral S)

Roberts, Sir Wyn (Conwy)

Robinson, Peter (Belfast E)

Ross, William (Londonderry E)

Rowe, Andrew

Sackville, Hon Tom

Sayeed, Jonathan

Shelton, Sir William

Shepherd, Colin (Hereford)

Smith, Tim (Beaconsfield)

Smyth, Rev Martin (Belfast S)

Speller, Tony

Spicer, Sir Jim (Dorset W)

Stanbrook, Ivor

Stanley, Rt Hon Sir John

Stern, Michael

Stevens, Lewis

Stewart, Andy (Sherwood)

Summerson, Hugo

Taylor, Ian (Esher)

Taylor, John M (Solihull)

Taylor, Matthew (Truro)

Thompson, D. (Calder Valley)

Thompson, Patrick (Norwich N)

Thurnham, Peter

Tracey, Richard

Trimble, David

Twinn, Dr Ian

Viggers, Peter

Walker, A. Cecil (Belfast N)

Wallace, James

Waller, Gary

Ward, John

Wardle, Charles (Bexhill)

Watts, John

Wells, Bowen

Wheeler, Sir John

Widdecombe, Ann

Wood, Timothy

Yeo, Tim

Young, Sir George (Acton)

Tellers for the Noes :

Mr. Tim Boswell and

Mr. Neil Hamilton.

Question accordingly negatived.

Amendment made : No. 40, in page 15, line 40, at end insert-- (2A) This section shall not be taken to authorise the examination, removal or retention of a document or record by a person at a time when he has reasonable cause for believing it to be an item subject to legal privilege (within the meaning of the Police and Criminal Evidence (Northern Ireland) Order 1989).

(2B) Where a document or record is examined under this section it shall not be photographed or copied.

(2C) Where a document or record is examined under this section the person who examines it shall make a written record of the examination at once or, where it is not practicable to make one at once, as soon as is practicable.

(2D) A record of an examination of a document or record which is made under this section shall specify--

(a) a description of the document or record ;

(b) the object of the examination ;

(c) the address of the premises, or a description of the place, where the document or record was found ;

(d) where the document or record was found in the course of a search of a person, the name of that person ;

(e) where the document or record was found in the course of a search of any premises or other place, the name of any person appearing to the person making the record to be the occupier of the premises or other place or to have had custody or control of the document or record when it was found ;

(f) where the document or record was removed for examination from the place where it was found, the date and time when it was removed from that place ; and

(g) where the document or record was examined at the place where it was found, the date and time when it was examined.

(2E) Such a record shall identify the person by whom the examination was carried out--

(a) in the case of a constable, by reference to his police number ; and

(b) in the case of a member of Her Majesty's forces, by reference to his service number, rank and regiment.

(2F) Where a record of an examination of a document or record is made under this section a copy of the record shall be supplied-- (a) in a case where the document or record was found in the course of a search of a person, to that person ; and

(b) in a case where the document or record was found in the course of a search of any premises or other place, to any person appearing to the person making the

---

Column 400

record to be the occupier of the premises or other place or to have had custody or control of the document or record when it was found. (2G) Subject to subsection (2H) below, a document or record may not be retained by virtue of subsection (2) above for more than forty-eight hours.

(2H) An officer of the Royal Ulster Constabulary not below the rank of chief inspector may authorise the retention of a document or record by a constable for a further period or periods ; but no such authorisation shall permit the retention of a document or record beyond the end of the period of ninety-six hours from the time when it was removed for examination from the place where it was found.'.-- [Mr. Brooke.]

Clause 26

Supplementary provisions

Amendment made : No. 41, in page 18, line 15, at end insert-- (1A) Where a document or record examined under section 22 above was found in the course of a search of a vehicle, vessel or aircraft, the references in that section to the occupier of the premises or place where it was found shall be construed as references to the person in charge of the vehicle, vessel or aircraft.'.-- [Mr. Brooke.]

Clause 27

Directing terrorist organisation

12 midnight

Mr. McNamara : I beg to move amendment No. 6, in page 19, leave out lines 10 to 13.

Madam Deputy Speaker : With this, it will be convenient to take the following amendments : No. 1, in page 19, line 10, leave out , at any level,'.

No. 11, in page 19, line 10, after the' insert criminal'. No. 2, in page 19, line 10, leave out an' and insert a proscribed'.

No. 3, in page 19, line 11, leave out which is concerned in' and insert with regard to'.

No. 12, in page 19, line 13, leave out imprisonment for life' and insert

imprisonment for a term not exceeding ten years'.

Government amendment No. 33.

Mr. McNamara : Clause 27 was introduced by the Government, rather strangely, during the final stages in Committee. It creates a new offence of directing

"the activities of an organisation which is concerned in the commission of acts of terrorism",

the punishment for which shall be life imprisonment.

There are several objections to this clause. It creates a new offence, but fails to define it. The concept of directing is totally unknown in existing law. Concepts such as permitting, allowing, suffering and controlling all exist and have a definite meaning, but there is no such precision in this clause.

It is also noteworthy that the draft criminal code drawn up by the Law Commission in 1989 does not refer to the concept of directing anyone in the commission of any crime. Given that lack of precision and definition, the Government are likely to argue--as they did in Committee--that the courts will provide the necessary definition. Such an argument amounts to claiming that good judges in Northern Ireland will rescue us from bad law passed by the House of Commons.

---

Column 401

Not only does the clause lack precision ; it is unnecessary. It is already illegal to take part in the preparation, instigation or commission of acts of terrorism. The definition is already wide enough to encompass any behaviour that could legitimately be considered to direct the activities of an organisation involved in terrorism. Furthermore, the clause is, to a degree, dishonest. Its practical effect would be to make virtually every member of a proscribed organisation liable to a life sentence. As such persons would inevitably be involved in directing activities at some level, almost any involvement in any such organisation would make them so liable. If the Government intend to increase the penalties--there may or may not be an argument for that-- they should say so openly, and do it directly rather than through the back door.

It can be argued that the failure to keep sentences proportionate to crimes poses an additional danger for the security forces, as there would be little difference between the consequences of less severe crimes and those of murder. The provision of the new offence would have strange, almost absurd, consequences. It relates not to the direction of terrorist activities, but to the direction of organisations concerned in such activities. Anyone responsible for bringing about a decision to cease terrorist activities would be liable to life imprisonment. People who engaged in conversations with terrorist organisations with the aim of persuading them to lay down their arms and pursue their goals democratically would be penalised by the clause.

Clause 27 is not tied to the present emergency, in that it does not confine itself to terrorist activities engaged in by proscribed organisations, or to terrorism connected with the affairs of Northern Ireland. It seems to be an example of the consequences of an error known to the Central Intelligence Agency as "blowback". "Blowback" occurs when official propaganda feeds back into official policy-making--when people act on the belief that their own propaganda is necessarily true. The theory behind it is that of the godfather hypothesis, which posits the existence of a directorate that plans, but does not carry out, acts of terrorism. Apart from the fact that anyone so involved is already guilty of a wide range of criminal offences, everything that is known about terrorism in Northern Ireland suggests that the credibility of the paramilitary leaders among their supporters depends on their being, or having been, personally implicated in specific acts of terrorism. A surprising number of them have been found by the courts to be involved in specific crimes.

We cannot accept clause 27. The Government have not said that they are prepared to accept any of the amendments. Amendment No. 1, which was tabled by Ulster Unionist Members, seeks to make clause 27 more specific. It removes the phrase, "at any level", thereby restricting its scope to the leaders of proscribed organisations. If they push it to a vote, we shall vote for it.

Amendment No. 2 would ensure that the clause applies only to organisations that have been proscribed, so that leading an organisation that may be involved in violent incidents does not lead to conviction unless it has been proscribed. I am not too happy with the amendment because a front organisation may condemn some acts of violence while sponsoring terrorist activity or benefiting from it. The amendment will need more careful consideration.

---

Column 402

Amendment No. 3 makes the clause more specific by restricting guilt to those involved in the direction of terrorist activities. The legal activities of the organisation would not be covered. My hon. Friends in the SDLP have tabled an amendment to achieve a similar purpose, and I should have thought that it would recommend itself to the Government.

In amendment No. 12, my hon. Friends in the SDLP seek to change the blanket charge or the indeterminate or mandatory life sentence to up to 10 years' imprisonment. Given the vagueness of the clause and the possibility of conviction under it for varying responsibilities for paramilitary campaigns, preserving judicial discretion would allow for sentences to be proportionate to the offence.

Clause 27, which has no parallel in criminal legislation, introduces a dangerous new concept. In Committee, the Government said that it is necessary, yet members of the various terrorist organisations are already caught by the Northern Ireland (Emergency Provisions) Act 1973 and the Prevention of Terrorism (Temporary Provisions) Act 1989. By creating a new offence to pretend that they are doing something about the godfathers, the Government are not helping the fight against terrorism. The new clauses that we discussed earlier contained sensible provisions, but clause 27, which seems to be an emotional spasm, should not be in the Bill.

Mr. Mallon : I should like to speak specifically to amendments Nos. 1 and 12, which were tabled by SDLP Members.

Amendment No. 1 inserts "criminal" before the word "activities".

Mr. Trimble : That is amendment No. 11.

Mr. Mallon : Amendment No. 11.

Under clause 27, any person who directs the activities of an organisation which is concerned in the commission of acts of terrorism is guilty of an offence. The clause is open to an interpretation that could be quite erroneous. Someone could direct several activities within an organisation-- an organisation that supports and is involved in terrorism--that are not terrorist acts and that could not be considered criminal acts. The clause must be clearly defined, or it will rightly be described as loose, imprecise and bad legislation.

In Committee, it was suggested that we shall rely on good judges to protect the accused from bad law. I described clause 27 as resembling something that had been written on the back of an envelope by someone on his way home on the Underground--if the Underground had not been disrupted by someone who had been directing the activities of an organisation involved in terrorism.

The purpose of amendment No. 12 is to try to soften the notion that somehow such activity merits a life sentence. The clause invites the judge to consider a life sentence. The Minister of State will argue that it would be nonsense for a judge not to use his discretion. If discretion is being left to the judge, that should be defined in the legislation. It is for that reason that we tabled the amendments. 12.15 am

Mr. Trimble : When the clause was discussed in Committee, we said that we could see merit in its general objective, but we were concerned about the width of its terms. In Committee, I put a number of questions to the

---

Column 403

Minister of State on the point. In the light of his answers, we decided to table amendments to put on record our reservations, doubts and unhappiness about some aspects of the clause. I should like to speak to those briefly.

Reference has been made to amendment No. 1, which would delete the phrase "at any level". As the hon. Member for Kingston upon Hull, North (Mr. McNamara) said, the object is to tighten the legislation. If it inflicts life imprisonment on the person who directs the activities of the organisation at any level, it will sweep up people who are engaged in low- level activity. We think that life imprisonment may not be appropriate when members of a proscribed organisation pay heavy penalties simply through membership, and any criminal activity that can be proved will carry its own penalty. The object of the clause is to give a special additional heavy penalty in the shape of life imprisonment to people who are, as is said, the godfathers. The godfathers are not the small fry. We can see merit in the legislation, because it is reasonable to believe that there are circumstances in which persons who are not members of proscribed organisations are directing their activities. I take the point made by the hon. Member for Kingston upon Hull, North, but in some cases they are former active members of proscribed organisations who have moved on to other activities which are not formally proscribed but none the less, from that position of relative safety, they still direct terrorist activities. It is right that severe penalties should be available for them. I should like to think that they would be used, but we will wait and see.

In Committee I asked the Minister of State why the clause was not directed specifically to proscribed organisations. He said that he did not want to refer to proscribed organisations because of the width of the power to proscribe. In clause 28(3), the Secretary of State may proscribe an organisation if it

"appears to him to be concerned in terrorism or in promoting or encouraging it."

The Minister of State said that he did not want to cover all those organisations. He did not want to cover organisations that were simply promoting or encouraging terrorism ; he wanted to focus on organisations which were concerned in terrorism. The spirit of his reply was that "proscribed" was too wide, that he wanted a narrower focus.

In framing the amendments, I tried to get the best of both worlds by referring to proscribed organisations and then by making it clear that the offence would apply not just to directing any activity of a proscribed organisation but to directing the terrorist activities of proscribed organisations. I think that in those circumstances life imprisonment is not inappropriate.

With regard to other organisations which are not proscribed, there are two answers--either the organisation should be proscribed or the criminal or terrorist activities themselves could be brought in. The clause would bring in other organisations not proscribed where it might not be appropriate.

In Committee the hon. Member for Kingston upon Hull, North gave an example. He referred to the Animal Liberation Front as an example of an organisation which has been engaged--or there is reason to believe that it has been engaged--in activities which would come within the definition of terrorist activities. In this clause, a person

---