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Mr. Straw: I can only repeat what I have already said. We proposed last year that the review be established on the basis of the Government's working assumption that the cessation of violence was permanent. My statement was made in good faith when the ceasefire was holding. Despite the fact that it has broken down--we hope only temporarily--the review is still going forward and we intend to give evidence to it. It remains the firm hope of every Member of the House that the ceasefire will return, that the PIRA will end its bombing campaign and that the reviews can then take place in the circumstances that we and the Government expected when they were first announced.
Sir Ivan Lawrence: On a point of order, Mr. Deputy Speaker. I am sure that the hon. Gentleman does not wish to mislead the House. Now that his hon. Friend the Member for Knowsley, North (Mr. Howarth) has been able to refresh his memory from the Hansard report of the debate on the Northern Ireland Bill, held on9 January 1996--
Mr. Deputy Speaker: Order. It is for hon. Members themselves to decide whether they have misled the House, not for other Members to pontificate at length before even reaching what may or may not have been a point of order.
Mr. Deputy Speaker: Order. I have made that quite clear. Mr. Straw.
Mr. Straw: I think I can help the hon. and learned Gentleman. I was misinformed about our position on
Second Reading. We did vote against Second Reading, and I apologise to the House for that error. In the debate, my hon. Friend the Member for Redcar made it clear that we welcomed the establishment of the Lloyd review and that we would seek further changes to the EPA in Committee. She also said that we would not vote against Third Reading, and that we did not do.
Although the Act which the House is invited tonight to review dates from 1989, the original Act dates from autumn 1974. It passed through all its stages in this House and the other place in the near record time of 48 hours, following the carnage of the Birmingham pub bombings. The then Home Secretary justified the need for the legislation on the ground that the country faced a highly exceptional situation and a clear and present danger. The powers, Roy Jenkins told the House, were draconian and unprecedented in peacetime. In consequence, Parliament required what have amounted to annual audits of the use of the Act's powers, and that it be subject to annual renewal.
It was also to the great credit of the Labour Government that two more fundamental reviews of the provisions of the Act were conducted by the distinguished figures of Lord Gardiner and then Lord Shackleton. By contrast, until the Lloyd review was announced only one other fundamental review of the Act's provisions has been held under this Administration--the one by Viscount Colville in 1987. That review had been preceded by mounting disquiet, dating back many years in this House and outside it, at the way in which some of the PTA powers were being used, especially those relating to examinations at ports, detentions and their extension, and exclusions from the mainland or from Northern Ireland.
Many complaints were made by my right hon. and hon. Friends on behalf of constituents with family connections in Ireland whose travel to and from different parts of the same kingdom were subject to the hazards and humiliations of unjustified stops and detentions. It was also said that the other powers in the Act were used unjustifiably.
Mr. Howard:
Perhaps I can help the hon. Gentleman a little more with the events of 9 January this year. The hon. Member for Redcar (Ms Mowlam) said:
Did she consult him before using those words?
Mr. Straw:
My hon. Friend referred to the position that we took in 1991. She also made it clear that we welcomed the establishment of the Lloyd review and would not vote against Third Reading.
My hon. Friend the Member for Hammersmith(Mr. Soley) and many others used to make the point that this sort of experience of the use of the powers, and the sense of injustice that it engendered, perversely assisted recruitment to terrorist organisations and helped to feed the lie peddled so assiduously in the United States that British justice was no justice when it came to the treatment of Irish people. The results of those concerns and of the Colville review have been that the powers in the Act have been more sparingly and judiciously used in
recent years, as we heard from the Secretary of State. The number of detentions fell from 857 in 1979 to one sixth of that number, 145, in 1993, the last full year before the ceasefire came into effect.
Just 8 per cent. of those detained in 1980 were charged with any offence. By 1993 the proportion had risen to20 per cent. If I heard the Secretary of State aright,I believe that it is now up to 25 per cent. Those figures are salutary. Far from the much more limited use of the Act's powers undermining the fight against terrorism, they have strengthened that fight with a much higher arrest rate and with the removal of some of the grounds for complaint about the injustice of the Act.
As I spelt out last year, however, there are still concerns about the absence of a judicial element in decisions to extend detention and about the very principle of exclusion orders. Under the normal criminal law in England and Wales, a suspect may be arrested and detained by police for up to 36 hours, and that detention may then be extended by a further two and a half days, making four days in all. In contrast, under the PTA, the initial detention period is 48 hours. That detention may be extended for a further five days by the Secretary of State, and not by any judicial figure. It is in the nature of powers needed to deal with terrorism that swift decisions may have to be made, and that the basis of such decisions may be intelligence or other evidence that would be inadmissible in a court of law. These considerations strengthen rather than weaken the case for decisions to extend detention to be made with the utmost fairness and to be seen to be fair. In our view, that must require a judicial element.
The current situation is unsatisfactory. That was recognised seven years ago by the right hon. Member for Witney (Mr. Hurd), the then Home Secretary. He said that the Government continued to look "for a judicial mechanism." Perhaps I have missed something in the argument, but I do not begin to understand why that search has produced a blank.
The argument advanced in this year's audit by Mr. John Rowe is unconvincing. He has recited the circumstances in which a judge would work. He tells us that the suspect could not be given all the detail of the evidence against him, that the judge could not give reasons for his judgment and that there would be no right of appeal.Mr. Rowe then claimed that the judge, in such circumstances, would be acting
In other words, Mr. Rowe was asserting that a judge could bring nothing to the process, and that the only consequence of his role would be to compromise his judicial integrity. If that were so, we would never ask judges to make decisions except in open court. YetMr. Rowe admits that there are plenty of examples where judges do not have to make decisions in open court, where they make them in secret on evidence that cannot be disclosed to the defendant.
As the House discussed two weeks ago on Second Reading of the Criminal Procedure and Investigations Bill, that is exactly the position when it comes to dealing with sensitive evidence--for example, the identity of an informant covered by a public interest immunity
certificate, where the defendant may not even know that an application to the judge has been made, still less what it contains.
Increasingly over the years, to provide greater public confidence in the fairness of procedures that necessarily have to operate in secrecy, the House has asked senior members of the judiciary to supervise parts of the work of the intelligence and security agencies. No one doubts the independence of mind and spirit of Lord Nolan, yet one of his tasks is to act as interception commissioner in the operation of the Interception of Communications Act 1985 to check whether telephone taps and other intercepts have been properly authorised. In those circumstances, Lord Nolan has not acted as a judge in name only; nor have his integrity and public reputation been compromised in any way as he has undertaken that task.
There is the example of Mr. Rowe, who is brought in to act, in a judicial capacity, to check retrospectively the use of the Act's powers. Moreover, Ministers have voluntarily assented to treaties and conventions which require that there should be an independent element in decisions, as the decision of the European Court of Justice in the Gallagher case demonstrated.
The state has no greater coercive power than the deprivation of liberty. Even in the grave circumstances of the fight against terrorism--indeed, especially in those circumstances--it is wrong that decisions should be made by Ministers alone.
Exclusion orders apply only to Irish terrorism. They have been justified on the ground that they are a necessary part of measures that are needed to fight terrorism by denying certain individuals entry to one or other parts of the United Kingdom, so disrupting terrorists' organisational and supply lines. That was the case advanced by the Home Secretary. The orders, however, are a form of internal exile, last practised, I understand, in this country in the time of Henry VIII. When such exile was practised in the former Soviet Union, it was subject to round condemnation by the international community.
The effects of exclusion orders are bizarre. After all, we are one kingdom of Great Britain and Northern Ireland. Yet the orders mean that a suspected terrorist who is regarded as so dangerous that he is not allowed anywhere in England, Scotland and Wales is allowed freely to walk the streets of Northern Ireland. In reverse, a suspect can be banned from Belfast but still be free in Birmingham.
For all that the Home Secretary said in support of exclusion orders, he omitted to mention that when there was last a fundamental review of the PTA, conducted by Lord Colville, the outcome was a settled conclusion on exclusion orders. Lord Colville described the orders as
Having considered the security arguments in favour of exclusion orders, he said:
That would be the correct decision, he continued,
"We will vote twice against the legislation today, as we did in 1991. It is important to be consistent."--[Official Report, 9 January 1996; Vol. 269, c. 47.]
"in name only. He would be exercising a function which could be called judicial only because he happened to be a judge by his profession and occupation. And the judge would in this situation would have every appearance of being an arm of the Executive."
"the most draconian in the present Act".
"However, I am not convinced that the ends justify these means . . . exclusion orders should not be renewed or replaced."
"both in terms of civil rights in the United Kingdom, and this country's reputation in that respect among the international community".
14 Mar 1996 : Column 1142
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