House of Commons Hansard Debates for 9 Mar 1994

Mr. George Foulkes (Carrick, Cumnock and Doon Valley) : Will the Home Secretary give way ?

Mr. Howard : No, not at the moment.

I can hardly improve on the way in which the matter was put on Second Reading of the original Bill 20 years ago :

"I believe that we have a prime duty to defend the liberties of our constituents, but a Bill of Rights and a whole volume of liberties are of little value to someone who is 6 ft beneath the ground or someone whose body has been dismembered by a bomb."--[ Official Report , 28 November 1974 ; Vol. 882, c. 699.]

Those words were not spoken by a Conservative Member in that debate. They were not even spoken by the Home Secretary. They were spoken by the hon. Member for Kingston upon Hull, North (Mr. McNamara). What the country wants to know is why he and his colleagues have abandoned the sensible view that they took of such matters 20 years ago.

We have brought the order before the House because we remain convinced that the job of the police and of the Security Service would be substantially more difficult, and the lives and property of people in Northern Ireland and in Great Britain at much greater risk, if the specific powers and offences created by the Act were not available. Indeed, our view is that in some respects they need strengthening. That is why new stop-and-search powers and new offence provisions appear in the Criminal Justice and Public Order Bill, which is now being considered in Committee.

Mr. Andrew Robathan (Blaby) : Does my right hon. and learned Friend accept that he has the backing of 95 per cent. or more of the population of this country for this measure, and that he has the backing of the vast majority of people in both communities in Northern Ireland too ?

Mr. Howard : I am sure that my hon. Friend is right. The people of this country appreciate the need for these measures.

The past 12 months have seen moments of particularly tragic despair. The tragedy at Warrington, with its unspeakable taking of two very young lives, touched the hearts of many people not only in the United Kingdom and the Republic of Ireland but around the world. The

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explosion in Bishopsgate, which killed one person and injured 44 others, was the second major incident in a year to bring suffering and disruption to the City of London. The murderous attack on the Protestant community of the Shankill road and the appalling reprisal by so-called loyalists in the Greysteel massacre added grimly to the death toll.

Last year there were 730 terrorist incidents in Northern Ireland in which 84 people were killed and 826 injured, while in Great Britain there were 49 incidents, in which three people died and 124 were injured. The terrorists continued to hold the community to ransom by destroying jobs, livelihoods and homes.

Mr. Foulkes : I agree with every word that the Home Secretary has said. As he goes through the catalogue of deaths for this year, last year and the year before, does it never occur to him that in all that time this Act has been on the statute book and that it may not be working ? Perhaps it is time to review it.

Mr. Howard : I should like to know what makes the hon. Gentleman think that his judgment about the effectiveness of these measures is to be preferred to that of the police. It is the police who have to deal with the terrorists day by day on our streets-- [Interruption.] --not the hon. Gentleman, and not those on the Opposition Back Benches who are joining him in this cacophony. I prefer the judgment of the police to the judgment of the hon. Gentleman.

Sir Anthony Grant (Cambridgeshire, South-West) : Should we not also add the fact that without these powers, over the years, the slaughter and the injuries would have been infinitely worse ?

Mr. Howard : I certainly agree. We must not overlook the high degree of success achieved by the police, the Army and other agencies. In Northern Ireland, 368 people were arrested and charged with serious terrorist offences. One hundred and ninety-six firearms and 60 rocket or mortar launchers were recovered, more than 6,500 kg of explosives were neutralised, and nearly 4,000 kg of unprimed explosives were found.

In Great Britain, 22 people were charged with serious terrorist offences following detention under the prevention of terrorism Act in 1993. Thirteen people have been convicted of such offences in the past year and sentenced to long terms of imprisonment--10 of them to 20 years or more. Counter- terrorist operations on the mainland also led to the recovery of a large quantity of terrorist equipment. More has been discovered in the past month. In Northern Ireland, a majority of the 368 people charged in 1993 with

scheduled--terrorist-related--offences were detained under the Act's powers.

For these successes against the terrorist menace we have to thank the police, the Security Service and, in Northern Ireland, the armed forces for their unstinting efforts on behalf of the public. We owe them a great debt of gratitude for their work and achievements. We are fortunate to have been able to rely on their courage and professionalism. I also acknowledge with gratitude the valuable and important contribution of the police in the Irish Republic. The powers available under the Act have continued to play a crucial part in these successes. Without them, the prevention of attacks and the investigation of crimes would have been far more difficult. I am indebted to Mr. John

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Rowe QC, last year's chairman of the Bar Council, who has produced a report on the operation of the Act in 1993. The House will, I am sure, share my gratitude to him for the careful and thorough work contained in this, his first report.

Mr. Rowe's conclusion is that

"the Act should indeed be continued in force".

He is satisfied from having had full access to all the records, including the intelligence material on which so many decisions must be based, that the powers have been exercised with great care and attention.

The two provisions which stand at the heart of the Act are, of course, those relating to arrest and detention and those conferring the power to make exclusion orders. I shall deal with them in turn. As Mr. Rowe's report reveals, the total number of detentions under the Act in the United Kingdom in 1993 was 8 per cent. down on the figure for 1992. Of these, 28 per cent. resulted in extensions beyond 48 hours on my authority or that of my right hon. and learned Friend the Secretary of State for Northern Ireland and my right hon. Friend the Secretary of State for Scotland. Of the 494 extensions in 1993, 455 extensions were granted in Northern Ireland and 39 in Great Britain.

Mr. Rowe notes that the police in Northern Ireland and Great Britain make a deliberate effort to relate the length of extension applied for in any case to the work outstanding in the investigation. My right hon. Friends and I thoroughly endorse that approach, ensuring as it does that each detention is kept to the minimum required.

The value of the period of extended detention is made clear by the statistics. In Great Britain, of the 39 people whose period of detention was extended beyond the initial 48 hours in 1993, 17 were charged with serious terrorist offences, including attempted murder and conspiracy to cause explosions. A further two were served with exclusion orders. In Northern Ireland, 25 per cent. of cases in which detention was extended resulted in charges.

Mr. Seamus Mallon (Newry and Armagh) : How many requests for extension of detention in the past two years in both Britain and the north of Ireland have been refused, either by the Home Secretary in Britain or by the Secretary of State in Northern Ireland ?

Mr. Howard : I cannot give the hon. Gentleman the answer to that question now, but I hope to be able to give the answer at the end of the debate.

The most contentious issue is who should consider extension applications. As the House is aware, the power of the Secretary of State to extend the detention of terrorist suspects up to a total of seven days has required the United Kingdom to derogate from article 5(3) of the European convention on human rights, following a ruling in the Brogan case that detention beyond four days without judicial authority was contrary to the convention.

Let me make clear that the Government would very much prefer it if that derogation were no longer necessary. But it is, and since the House last considered this matter, the European Court of Human Rights has, in the case of Brannigan and McBride, upheld the derogation. In its ruling it held :

"having regard to the nature of the terrorist threat in Northern Ireland, the limited scope of the derogation and the reasons advanced in support of it, as well as the existence of basic safeguards against abuse, the Court takes the view that the Government have not exceeded their margin of appreciation in considering that . . . the derogation was strictly required by the

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exigencies of the situation".

After the Brogan case, the Government looked closely to see whether there was a judicial solution. But, for the reasons given to the House fully on 14 November 1989, we had to conclude that the dangers outweighed the advantages. Those who had previously carried out major reviews of the legislation--Lords Shackleton, Jellicoe and Colville--had all come to the same conclusions.

Let me quote from the report by Lord Shackleton--a Labour peer appointed to review the legislation by a Labour Government. He said :

"On the question of who should authorise the extensions of detention, I see no alternative to the Secretary of State. It has been suggested that the courts could do this. But the information on which the police justify the need for an extension is usually sensitive and cannot be disclosed without the risk of endangering lives or impeding police inquiries. I doubt that these difficulties could be fully met even if the courts were to consider these matters in secrecy . . . I believe it is right that such a power be exercised by the Secretary of State, who can be called upon at short notice to account for his actions in Parliament."

Those who advocate transferring to the judiciary the power to authorise detention before charge need to ask themselves whether decisions based on intelligence material can really be considered appropriate for judicial consideration. The Government's view is that the course which the Opposition advocate would blur the clear division of roles between the Executive and the judiciary. We would be asking the judges to perform what is, in essence, an Executive function.

The intelligence material on which police applications are based cannot, by its very nature, be disclosed to the defence. Therefore, it would not be possible for the defence to prepare its case. Nor would it be possible for judges' decisions to state the reasons underlying them. It would be difficult, if not impossible, to construct a judicial appeal procedure.

I am absolutely sure that to attempt to involve the judiciary, but under such constraints that judges could not apply the procedures and principles under which they normally operate, is a far more unsatisfactory course than the limited derogation from the convention which the Government have made.

Sir Ivan Lawrence (Burton) : Is not it a fact that in Europe, where a contrary view is taken, most of the judges are civil servants who are used to taking administrative decisions ?

Mr. Howard : My hon. and learned Friend is right to make that distinction. There is a further distinction in that the decisions which they make are, for the most part, entirely different from the ones which are presently under consideration.

Therefore, so long as the need for the decisions continues, I believe that they will have to be left to the Secretary of State, who is accountable to Parliament for the exercise of his powers and whose decisions are scrutinised each year by an independent reviewer with extensive legal experience. It would be very convenient for my right hon. and learned Friend the Secretary of State for Northern Ireland, my right hon. Friend the Secretary of State for Scotland and me to shed those onerous responsibilities, but while the need remains we shall continue to discharge our duty.

Mr. Tom King (Bridgwater) : Is not there another point, about which those who are concerned about the proper rights of an individual should be worried and to which my

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hon. and learned Friend the Member for Burton (Sir I. Lawrence) has just referred ? If the decision passes to perhaps a judicial authority, would not that, under the European convention on human rights, give judges the power to extend far more the time during which people could be confined without charge ? Am I right in saying that those who were arrested by the French authorities for the Eksund shipment were kept two years without being charged, whereas the limitation under our legislation is extremely strict and, as my right hon. and learned Friend has said, not normally more than five days ?

Mr. Howard : My right hon. Friend speaks with great experience in these matters. I believe that he is right in what he says. His point demonstrates that, as is so often the case, the Opposition completely miss the substance of the point in the attitude which they take and strive instead for some illusory shadow which would profit no one. I turn now to exclusion orders. At the end of 1993, 71 persons remained subject to an exclusion order made by the Home Secretary--a reduction of eight since 31 December 1992 and the lowest figure at the end of any year since 1975. The number of orders in force on the strength of decisions made by my right hon. and learned Friend the Secretary of State for Northern Ireland remained constant at nine. Each order remains in force for three years, unless revoked before then. At the end of the three-year period the case is looked at afresh in the light of all the circumstances, including an up-to- date intelligence assessment. In some instances, fresh orders are made ; in others, they are allowed to lapse without replacement. Mr. Rowe states that he is satisfied that all the participants in the procedure for exclusion orders have acted carefully. I thoroughly endorse his comments about the three independent advisers, to whom representations against exclusion orders are referred. The role which they play is an important safeguard for the individual and I thank them for their work during the past year. In his report Mr. Rowe rightly acknowledges that opinion on the value of exclusion orders is not unanimous, but he also notes that there are strong arguments in favour of their retention, and it is my clear view that those arguments are decisive.

The restrictions on the movement of the 80 people currently excluded are wholly justified by the contribution that the restrictions make to preventing acts of terrorism. As the number of people excluded is small, there are those who argue that it would make little difference if the restriction on their movements were lifted. I do not accept that for a moment. The powers are used very sparingly in recognition of their exceptional nature. Do those who oppose them seriously suggest that restrictions on the movement of those who have been involved in terrorism have no effect ? The police are clear that, as a preventive measure, exclusion is a useful weapon in their armoury. It disrupts the movement of terrorists in both directions across the Irish sea and it reduces the pool of personnel on whom the terrorists can safely draw. The police do not believe that the alternative measures that have been suggested--such as mounting surveillance operations on all those who would at present be excluded--are remotely realistic. When the police and the Security Service have their work cut out to prevent attacks and track down those responsible for preparing them, how can

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Opposition Members justify making that task more difficult ? How can they justify the extra risks that would be imposed on our constituents ?

Ten years ago this year Patrick Magee tried to blow up the Cabinet at the Conservative party conference. The following year he returned from Ireland with others who planned to mount an unprecedented series of attacks at seaside resorts in the south of England, including Folkestone in my constituency. Magee and his associates were arrested and detained for several days before being charged because of the powers available in the prevention of terrorism Act. My constituents know that those are powers for which Conservatives have consistently voted for the past 20 years. Had the Labour party been in power in 1985, those powers would not have been available for the protection of the people of Folkestone. They would not be available now for the protection of the people of Belfast, Warrington, Tyneside or Haringey.

Mr. Alun Michael (Cardiff, South and Penarth) : Cheap points.

Mr. Howard : That is the truth of the matter, and for the hon. Gentleman, from a sedentary position, to describe those points as cheap is nothing short of disgraceful.

The powers were needed when the legislation was introduced by Lord Jenkins in 1974. From 1974 to 1980 they were supported by the Labour party. Since 1983 it has opposed them.

The chairman of the terrorism committee of the Association of Chief Police Officers has made it clear to me--perhaps Opposition Members will listen-- that the

"retention of the Act in its present form is an essential weapon in the armoury of counter terrorism."

No party that is prepared to deny that essential weapon to the brave police officers who have to confront the evil men at whom the powers are aimed is remotely fit to govern this country. Conservatives are committed to their maintenance for so long as the need for them continues. I commend the order to the House.

4.26 pm

Mr. Tony Blair (Sedgefield) : I shall begin by giving a brief resume of the history of the legislation. I shall then examine the changes that have, over time, been made to it. I shall then repeat the offer that has been made to the Government, which I believe will find much support in the House--to try to reach a consensus on the issue, take it out of the political divide and resolve it properly. First, let us be clear what is not in dispute. It is not in dispute, and never has been, that we need anti -terrorist legislation. It is not in dispute that the powers of the prevention of terrorism Act in respect of detention on the grounds of involvement in terrorism should remain. We do not seek to review the powers of proscription and attachment of terrorist funds. We in the House share a total and complete abhorrence of terrorism and a desire to defeat it. However, we say that the powers are exceptional, and we hope that the whole House can agree with that. We hope that the House can also agree that the powers breach the normal rules of law in our legal system, of which we are justifiably proud, and that we should countenance them only to the extent that they are genuinely necessary to defeat the threat of terrorism.

That is so for reasons of the rule of law, but also for practical reasons. The IRA, which is incapable of making

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a decent democratic case in defence of its position, uses aspects of the legislation ruthlessly as a stick with which to pillory Britain abroad. Speeches made in the United States of America recently have been littered with references to the legislation. It is plainly sensible and in everyone's interests, quite apart from being right as a matter of constitutional law, to go as far, but no further, than we need in abrogating the normal processes of law. That is the issue between us, and if the Home Secretary were prepared to analyse it in a decent and sensible way, as opposed to ranting at us for the purpose of making the political divide greater, he would do a service to everyone concerned with such matters.

Mr. Michael Fabricant (Mid-Staffordshire) rose

Mr. Blair : I will give way in a moment.

This used to be recognised throughout the House. The great distinction between the speech that we have just heard and earlier speeches on the prevention of terrorism from the Government side, whether a Labour or a Conservative Government, is that, until very recently, they have always repeated the distaste felt by everyone for these measures. They have been justified, but there has been some semblance of the thought that these are serious steps that are being taken.

That is why they are called "temporary provisions." It is why we debate them every year. As Lord Whitelaw said in 1982, they make " a considerable inroad into the civil liberties of which we are justly proud".--[ Official Report , 15 March 1982 ; Vol. 20, c. 151.] In 1978, because this was the only way of securing the renewal of the Act, Lord Shackleton was asked to conduct a full review. He did so, and among the other things that the Home Secretary did not quote from his report, he said this :

"The longer the exclusion power continues, the stronger will be the case against it, and I believe the Government should reconsider this issue."

So, far from it being strange for Opposition Members to raise them, exclusion orders used to be raised by those on the Government Benches when they were in opposition, and as a result changes were made to them. Changes were made that, in particular, after three years they must be reconsidered. There was a further report by Lord Jellicoe in 1983. Sir Cyril Phillips, himself a distinguished High Court judge, was critical of exclusion orders in 1985, and suggested ways in which they might be circumvented, and that was repeated in the last full review of the legislation in 1987 by Lord Colville.

I say that in part to show that, throughout this period, it is not merely that changes have been made--in respect not just of exclusion orders but in the treatment of suspects, the procedures for detention and dealing with terrorist funds--but also to emphasise that it was never the case that the legislation was written in stone. It was always there to be reviewed, analysed and reassessed because of its importance.

Mr. Fabricant : When the hon. Gentleman proceeds to try to water down this order, and when he has thought of the thousand people killed or injured last year and of the two young soldiers killed on Lichfield railway station, will he remember that it is the police today--not Lord Jellicoe in 1983, but the police today--who want the order passed as it stands ? Does he look forward to the total defeat of terrorism, or does he merely look behind him at the disloyalty of his own Back Benchers ?

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Mr. Blair : That is an example of what we have been saying. There they go again : they cannot debate this in a reasonable way.

Mr. Howard : With respect, my hon. Friend the Member for Mid- Staffordshire (Mr. Fabricant) asked a perfectly reasonable question, based on the view of the police now. The hon. Member for Sedgefield (Mr. Blair) said earlier that we should go as far as, but no further than, we need. The chairman of the terrorism committee of the Association of Chief Police Officers says :

"The retention of the Act in its present form is an essential weapon in the armoury of counter terrorism."

Why does the hon. Gentleman think that his judgment of what we need is to be preferred to that of the chairman of the terrorism committee of the Association of Chief Police Officers ?

Mr. Blair : It is not my judgment that is to be preferred to his. What we are debating, as I shall show, are views expressed not just by the Labour party but over a very broad range.

As I said at the beginning, we are not opposed to the principle of legislation in this area, or to the main powers that are in the legislation. If the Home Secretary would listen to the points we make and consider them, and accept that we are trying to reach agreement, I think that he would find them reasonable.

Several hon. Members rose

Mr. Blair : I shall give way from right to left, and then I must get on.

Mr. Michael Bates (Langbaurgh) : I am sure that the hon. Gentleman agrees that the views of the police, who are often in the front line in the fight against terrorism, are critical. What consultations has he had with police organisations on the subject of the renewal of this legislation, and what representations has he received from those organisations urging him to vote against it ?

Mr. Blair : I shall deal in detail with some of the objections to the points that I am raising. What has to be determined is whether the points we make are reasonable. I remind the hon. Gentleman that, as I told the Home Secretary this morning, it is our case that there should be a full and independent review, agreed by the two sides of the House and conducted by a distinguished figure, to determine precisely whether these powers are necessary or whether there is another way of dealing with the situation.

The view of the police must be taken into account, but it is also important that there be a review of the extent to which what we seek could be achieved otherwise. That is what we are asking for, and it is hardly unreasonable.

Mr. Oliver Heald (Hertfordshire, North) : Clearly, the hon. Gentleman is prepared to ignore, or fails to take fully into account, the views of the police. What about members of the Labour party ? For example, Lord Mason, who held the office of Secretary of State for Northern Ireland, has said that nothing gives the IRA more joy and encouragement than to see a divided House, and especially the image created by some within Parliament of seeming to be too protective of the terrorists and their political allies, rather than wishing their destruction. [Interruption.]

Madam Deputy Speaker (Dame Janet Fookes) : Order. If we do not have a little quiet, I shall start picking off other people.

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Mr. Heald : Is it not important that we take full account of the views of the police, who are fighting the terrorists, and of members of the Labour party who have the experience of office ? The hon. Gentleman has not had that experience ; those who have believe that the legislation is vital. Why is the hon. Gentleman so arrogant as to ignore their advice ?

Mr. Blair : We are not ignoring their advice. That is precisely why, as I shall explain later, we have said that there should be a full review, in which these matters can be taken into account. If the hon. Gentleman is confident of his position, he should agree to that. Why does he not agree ? Because, as a Conservative, he prefers to treat this matter as an issue of party divide rather than of party agreement.

Mr. Gyles Brandreth (City of Chester) : The hon. Gentleman confirms that he wishes to disregard the views of the police. Does he think that voting against this order will help or hinder terrorism ? It is as simple as that.

Mr. Blair : Unfortunately, the hon. Gentleman has not listened to my reply. I am not saying that my view should be preferred to that of the police. That is precisely my reason for saying that the objections received from a very broad range of opinion should be properly tested. That is what Conservative members are disagreeing with. The Home Secretary mentioned Lord Merlyn-Rees. Earlier today, Lord Merlyn-Rees confirmed that he would support a full and independent review. That is the answer to many of the points that have been made.

Lady Olga Maitland (Sutton and Cheam) : If the hon. Gentleman believes in abandoning exclusion orders, does not it follow naturally that he is opening up the floodgates to terrorists coming to the British mainland ? Does not he accept the warning that was issued by the hon. Member for Kingston upon Hull, North (Mr. McNamara), in 1974 ? I refer to this very salutary comment :

"It would be most sad, however, if we were to worry now too much about the curtailment of liberty and later to have upon our consciences the deaths of our fellow citizens."--[ Official Report , 28 Nov 1974 ; Vol. 882, c. 700.]

Mr. Blair rose

Mr. Bruce Grocott (The Wrekin) : On a point of order, Madam Deputy Speaker. I am sorry to interrupt my hon. Friend's splendid speech, but I must ask whether it would not have saved a great deal of time if the Conservative office brief, from which Conservative members have been reading, had been placed in full in the Library ?

Madam Deputy Speaker : The hon. Gentleman has been here a long time, and he knows very well that that is not a matter for the Chair.

Mr. Blair : Unfortunately, like so much else that the Conservative party does, the brief is incompetent and inaccurate.

The Prevention of Terrorism (Temporary Provisions) Act 1989 was never intended to be written in stone. On the contrary, because of its exceptional nature, it was to be kept under constant review for the very purpose of changing it when necessary and timely. That was especially so in respect of exclusion orders. We believe that it is now right to consider two aspects of change. I shall mention them in turn.

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There are other issues. There is the question of the audio or video recording of suspects' interviews. Trials are apparently on foot on the mainland, but there is nothing as yet in Northern Ireland. Sir Louis Blom-Cooper was asked to report on the conduct of detention centres in Northern Ireland, and his report will be published next week. It is unfortunate that we do not have it today.

There are therefore other issues, but there are two main ones. They are not quibbles, as some people would say, and they do not destroy the 1989 Act, as the Home Secretary says. They are substantial and serious none the less.

The first issue is that of the means of extending detention. At present, under the normal law, if one is a child murderer, a rapist, an armed robber or involved in organised crime, one can be detained only on suspicion of a specific offence ; one is detained for 36 hours but then must be brought before a court, and after some days must then be charged.

Under the 1989 Act, detention takes place if there is a reasonable suspicion that one has been involved in general acts of terrorism, not necessarily related to a specific act. One can be held for 48 hours and then the detention is extended for up to a further five days, making seven days in all. Those powers are self-evidently highly exceptional--all the more reason for them to be subject to proper judicial control if possible.

There is a need for the exceptional power to detain and the period of detention--I accept that. That is the exceptional nature of the power, because there can be occasions when the security services, for various reasons, have to obtain evidence or make forensic checks of one type or another. However, unless there is a good reason to the contrary, deprivation of liberty should take place through a court. That is what the European Court ruled under the European convention, and it may have ruled that the derogation was within the Government's possibility of power, but it did not resile from its earlier ruling. One of the things that I find so extraordinary about the Home Secretary's attempt to present the proposal as destructive of the whole nature of the work of the security services is that when the matter was mentioned before, during the passage of the Prevention of Terrorism (Temporary Provisions) Bill in January 1989, the then Home Secretary, now the Foreign Secretary, said :

"Of course we would have preferred not to derogate, and the right hon. and learned Member for Warley, West"

now the noble Lord Archer

"was right when he said that this is not a subject to be taken lightly as a matter of convenience. We continue to look for a judicial mechanism."--[ Official Report , 30 January 1989 ; Vol. 146, c. 65.]

Mr. Howard rose

Mr. Blair : I will give way in a moment.

Mr. Howard rose

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