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Rossi, Sir HughRyder, Rt Hon Richard
Sackville, Hon Tom
Sayeed, Jonathan
Scott, Rt Hon Nicholas
Shaw, David (Dover)
Shaw, Sir Michael (Scarb')
Shelton, Sir William
Shephard, Mrs G. (Norfolk SW)
Shepherd, Colin (Hereford)
Shepherd, Richard (Aldridge)
Shersby, Michael
Smith, Tim (Beaconsfield)
Speller, Tony
Spicer, Michael (S Worcs)
Squire, Robin
Stanbrook, Ivor
Stanley, Rt Hon Sir John
Steen, Anthony
Stern, Michael
Stewart, Andy (Sherwood)
Summerson, Hugo
Taylor, Sir Teddy
Tebbit, Rt Hon Norman
Temple-Morris, Peter
Thompson, Patrick (Norwich N)
Thorne, Neil
Thurnham, Peter
Tracey, Richard
Tredinnick, David
Trimble, David
Twinn, Dr Ian
Viggers, Peter
Waldegrave, Rt Hon William
Walden, George
Walker, A. Cecil (Belfast N)
Waller, Gary
Wardle, Charles (Bexhill)
Watts, John
Wells, Bowen
Wheeler, Sir John
Widdecombe, Ann
Wiggin, Jerry
Wilkinson, John
Winterton, Mrs Ann
Winterton, Nicholas
Wood, Timothy
Yeo, Tim
Tellers for the Noes :
Mr. David Lightbown and
Mr. Neil Hamilton.
Question accordingly negatived.
Subsequent Lords amendments agreed to. [Special Entry.]
Clause 1
The scheduled offences
Lords amendment : No. 1, in page 1, line 9, leave out ("or Part III") and insert (", III or IV")
Dr. Mawhinney : I beg to move, That this House doth agree with the Lords in the said amendment.
Mr. Deputy Speaker : With this it will be convenient to consider Lords amendments Nos. 9, 10 and 20.
Dr. Mawhinney : The amendments were added to the Bill in another place to strengthen further the provisions aimed at those people who deliberately involve themselves in activities intended to provide finance for terrorism. That objective has been widely reported in this House and also in another place.
The combined effect of the amendments is to provide that any offence which is charged as a result of the use by authorised investigators of the new powers set out in clause 57 and schedule 5 of the Bill should be both scheduled offences--that is, triable before a non-jury court--and relevant offences--that is, offences, convictions for which will count for the purpose of attracting the confiscation provisions in part VII and schedule 4 of the Bill.
Amendment No. 1 simply inserts a definition of the new scheduled offence into schedule 1 of the Bill as a new part IV to that schedule. Amendment No. 20 contains the context of that new part IV. The definition is provided by reference to a certification by an officer of the Royal Ulster Constabulary, not below the rank of superintendent. That officer will certify as to a question of fact that the offence is one charged in consequence of a terrorist fund investigation. The definition in those terms is necessary because the pre-trial procedures for scheduled and non- scheduled offences are different, and there must be some measures by which the magistrate can be informed that an offence which might not look like a scheduled offence is such an offence.
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Amendments Nos. 9 and 10 provide that any offence which is tried as a scheduled offence, by virtue of the amendments to which I have just referred, will be a relevant offence, as defined in clause 49. The amendments were widely welcomed in another place. They are intended to ensure that those people who wilfully involve themselves in activities which generate finance for terrorism, and often in profit for themselves, can more effectively be brought to justice, and I commend them to the House.Mr. McNamara : It is interesting to note that we are arriving at a scheduling-in process. Perhaps in future that will be developed even more firmly.
Question put and agreed to.
Clause 19
Power to search for munitions, radio transmitters and scanning receivers
Lords amendment : No. 2, in page 13, line 23, leave out from beginning to ("any") in line 25 and insert--
("(3) If it is necessary for the purpose of effectively carrying out a search--
(a) a member of Her Majesty's forces or constable exercising the powers conferred by subsection (1) above may be accompanied by other persons ; and
(b)")
Dr. Mawhinney : I beg to move, That this House doth agree with the Lords in the said amendment.
Clause 19(3) of the Bill creates a new power to enable civilian specialists to accompany searches of premises, including dwelling houses or other places where there are munitions or transmitters. When this provision was considered in Committee on 15 January concern was expressed by the hon. Members for Leicester, South (Mr. Marshall) and for Newry and Armagh (Mr. Mallon) that the provision was too widely drafted and could enable almost anyone to be authorised to accompany a search. At that time the hon. Member for Leicester, South said that the clause contained no provision that requires someone's presence to be "both justifiable and or necessary." We have given thought to that matter. The Government amended the provision in another place to provide that other persons may accompany a search or be authorised to accompany a house search only if it is necessary effectively to carry out the search. Therefore, the amendment requires a person's presence to be justifiable and necessary, which would be a further safeguard on the operation of the new provision.
Mr. McNamara : The Opposition are grateful to the Government for accepting our argument that more precision is needed in the safeguarding of individuals. We welcome what has been done. Question put and agreed to.
Lords amendment : No. 3, in page 14, line 22, at end insert-- ("(7A) Where a member of Her Majesty's forces or a constable carries out a search under subsection (1) or (2) above he shall, unless it is not practicable to do so, make a written record of the search which shall specify--
(a) the address of the premises, or a description of the place, which is searched ;
(b) the date and time of the search ;
(c) any damage caused in the course of the search ; and (
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(d) anything seized in the course of the search.(7B) Such a record shall also include the name (if known) of any person appearing to the person making the record to be the occupier of the premises or other place searched ; but
((a) a person may not be detained to find out his name ; and (
(b) if the person making the record does not know the name of a person appearing to him to be the occupier of the premises or other place searched, he shall include in the record a note otherwise describing him.
(7C) Such a record shall identify the person by whom the search is 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.
(7D) Where a record of a search is made under this section a copy of the record shall be supplied at once or, where that is not practicable, as soon as is practicable to any person appearing to the person making the record to be the occupier of the premises or other place searched.")
Dr. Mawhinney : I beg to move, That this House doth agree with the Lords in the said amendment.
Mr. Deputy Speaker : With this it will be convenient to consider Lords amendment No. 8.
Dr. Mawhinney : The purpose of Lords amendment No. 3 is to place a duty on the police and the armed forces to make a written record, subject to practicability, when they carry out searches of premises, including dwelling houses, or other places under the powers in clause 19.
Lords amendment No. 8 requires similar written records for searches of vehicles, vessels or aircraft under clause 26, but only when they have been removed for the purposes of a search.
While such searches are clearly necessary in the interests of security, it is right that the Government should seek, wherever possible and practicable, to build in safeguards in the exercise of those powers. I know that some hon. Members might wish that the Government had gone further and had required written records for searches of persons in a public place under clause 19(6), or when the power to stop and question under clause 23 is exercised. However, as I said before, such powers are used so frequently that it would not be possible or practicable to complete a written record when they are exercised.
The amendments place a duty on the police and armed forces to make a written record, which must also specify the address of the premises or a description of the place, the date and time of the search, any damage caused and anything seized in the course of the search. It would identify the constable or member of the armed forces making the search, and there is a requirement for a copy of the record to be supplied to the occupier of the premises, or other place searched, at once or as soon as is practicable.
The Government believe that this is an important new safeguard, and I hope that the House will welcome it.
Mr. McNamara : I welcome this amendment, but we could have been saved all this time if the Government had accepted it when we originally tabled it in Committee.
Question put and agreed to.
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Clause 22
Examination of documents
Lords amendment : No. 4, in page 16, line 29, at end insert ("at once or, if that is not practicable, as soon as is practicable")
Dr. Mawhinney : I beg to move, That this House doth agree with the Lords in the said amendment.
Clause 22 requires the police and armed forces to make a written record when they exercise their power to examine documents under the clause, and to provide a copy of the record to the owner of the documents. However, the clause does not specify any time limit within which the written record must be provided to the owner of the documents. While that was not a matter of concern to the House when the Government amended clause 22 on Report, it was a matter which concerned their Lordships in another place. It was always the Government's intention that, where practicable, a copy of the written record should be provided at once. That would be especially valuable where documents are used or removed for examination. The amendment is designed to have that effect, and I hope that the House will welcome it.
Mr. McNamara : This amendment requires the security forces to provide a written record on examination of any document under the terms of clause 22 as soon as is practicable, and it is a response to an amendment moved in another place by the Opposition. As it responds to our suggestion, we welcome it.
Despite the Government's efforts to amend the clause, it still presents a number of problems. The problem of legal privilege remains, although the clause has been amended to provide for the recognition of such privilege. The amended clause is still defective, because it does not address the practical difficulty identified in the other place--how the determination of legal privilege is to be made. The difficulty arises when a policeman or soldier finds a document in the course of a search, or has to determine whether it is legally privileged. As drafted, the clause contains an inherent contradiction : it empowers members of the security forces to search such documents to verify whether they are legally entitled to search them. 6 pm
We foresee a number of problems. Members of the security forces will be forced to make decisions that are normally in the hands of the judiciary. It is not clear how the power will work in practice. The Government have promised that force instructions will be issued to the police and the Army, but there appear to be no plans to provide the public with guidance on how the operation of the clause will affect them--or, indeed, on the degree to which the force instructions will be made freely available to them. There is a possibility of endless friction between the public and the security forces, and the clause is more likely to hinder the security forces than to help them.
The Government seem to rely on the fact that the power to search and seize documents is included in ordinary criminal law--the Police and Criminal Evidence Act 1984. That is a false analogy, for two reasons. First, such powers are confined to searches of premises ; secondly, they are subject to judicial control of the issuing of search warrants. Neither condition applies in clause 22.
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The Government have tried to make the clause more palatable by inserting the practicability test ; nevertheless, we still believe that the Bill would have been better without the clause, which will cause needless confusion. That might as well be on the Government's head, however.Question put and agreed to.
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