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Mr. Tom King: The Home Secretary has gone to some trouble to respond to my point and it is only courteous to say so. However, I do not think that I am the only Member of the House who finds his explanation quite unconvincing. It does not seem to advance us at all. Is it not correct that the point was that the renewal and the continuance related to parts I to V inclusive? However, when part II was deleted, the fact had to be mentioned that it was parts I, III, IV and V, but parts IVA and IVB also had to be mentioned. It was as complicated as that; I cannot understand why it took 16 days to work it out.
Mr. Straw: I am sorry that the right hon. Gentleman does not accept my explanation. I had no interest whatever in delaying the matter. I recognised the urgency of the matter and paid personal attention to it. I wanted the advice as quickly as possible. We received that advice as quickly as the Law Officers could produce it. However, I have also explained that, if it had been an obvious point, some of us might have spotted it. No one spotted it--not even the best legal brains in the House; not the Ministers responsible, including myself. No one spotted it--except the author of the article. I have done my best to satisfy the right hon. Gentleman. I am sorry that I did not succeed. We acted as fast as we could in the circumstances.
In the time available, I shall deal with some other points raised in the debate. One relates to the question of incompatibility and why I have come to my present view. However, before I deal with that point, I must pick up on the comments of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), who tweaked me about the fact that Home Secretaries occasionally take a different view from that of the courts. I did not particularly want to make this an ad hominem point, but I have the highest regard and respect for the Lord Chief Justice, Lord Bingham--and I am sure that my opinion is shared universally in the House.
The Lord Chief Justice would be the first to say that he is not the supreme court of the land, nor is he the sovereign Parliament. I can think of many occasions when he has come to a view that is different from that of the Secretary of State for the Home Department of the day, and an equal number of occasions when decisions of the court of appeal and the divisional court--in which the then Lord Chief Justice has sat--have been overturned by the Appellate Committee.
I can think of a current extradition case where the view of the divisional court was overturned by the Appellate Committee of the House of Lords, and the Appellate Committee then came to a different view from that of a previous Appellate Committee which heard the matter only a month or so before. These matters are not over until they are over.
I was asked for the reasons why we have come to the view that the provisions are compatible with the European convention on human rights. This should not be viewed
by the Appellate Committee of the other place as a skeleton argument that will be advanced there; this is simply my explanation. There are many provisions in our law where the burden of proof is reversed. Article 6.2 of the convention does not prohibit absolutely a reversal of the burden of proof: it requires instead a balancing of the interests of the defendant and those of society. The jurisprudence of the European Court of Human Rights recognises that, where reasonable and justifiable, the state may impose a burden of proof on the defendant.
I remind all my hon. Friends who have practised in the lower courts that we often had to wrestle with this question when those whom we represented or prosecuted were charged with an offence under section 1 of the Prevention of Crime Act 1953. Those of us who once practised in those courts will remember that section 1(1) of the Act states:
My hon. Friend the Member for Sunderland, South (Mr. Mullin) asked whether, in the matter that will go before the Appellate Committee, section 16B will be appealable as well as section 16A. That has not been determined finally. In any event, the issue before the court amounts to the same thing. In practice, I am advised that it amounts to a distinction without a difference. The divisional court took no issue in respect of sections 16A and 16B.
The right hon. Member for Berwick-upon-Tweed (Mr. Beith) asked for some details about when we propose to introduce new legislation. It is likely that the present Prevention of Terrorism Act will have to be renewed next March. We will be very careful to ensure that the renewal orders are in order--although that is almost an invitation to the gods to ensure that they are not. It is probably an unwise promise to make--particularly from this Bench.
Without anticipating the Loyal Address, I have made it clear that it is our intention to lay legislation before the House and the other place to put on the statute book permanent counter-terrorist provisions, which will do away with the difficulties that the right hon. Member for Cities of London and Westminster (Mr. Brooke) faced in finding the various bits of legislation.
The right hon. Member for Bridgwater asked what would have happened if terrorist incidents had taken place and the provisions had not been in force. I have never disguised from the House the fact that I regarded the matter as an error with potentially serious consequences. However, it is important to put it into perspective. In the circumstances of a major terrorist incident, such as the right hon. Gentleman described, charges under sections 16A and B would be unlikely to arise. The charges would relate to causing explosions, conspiracy to cause explosions and so on.
With regard to the cordon powers, a point raised by other right hon. and hon. Members, until those powers were taken in the Prevention of Terrorism
(Additional Powers) Act 1996, the police used certain common law powers, as I made clear yesterday, and they would have used those powers again.
With one exception--the issue of the royal parks police--I believe that I have answered each of the questions raised by right hon. and hon. Members. The police do not have powers under section 16D. Anti-terrorist police provision is provided by the Metropolitan police throughout the London parks. The royal parks are not a cordon-free zone. That was anticipated by the draftsmen.
Mr. Howard:
I am puzzled by one of the Home Secretary's answers, but the fault may be mine. He said that other powers were available to the police during the period when, as we now know, the powers that we are debating this evening were not available to them, but surely the police thought that those powers were available to them? Therefore the police would have used not the other powers--less satisfactory, but available--but the powers in question.
If there had been the threat of a major terrorist attack or plans for such an attack, in the course of which the police would normally use these powers, and if the powers had been used in good faith by the police, not knowing that they were not valid, those planning the major terrorist attack would have had to be released. That is the point made by my right hon. Friend the Member for Bridgwater (Mr. King).
Mr. Straw:
I do not disagree with the right hon. and learned Gentleman's point. I was responding to a rather different point that the right hon. Member for Bridgwater had made with regard to major terrorist incidents. I have never disguised the fact that, although the powers are not used often, the omission is serious. That is the reason for the debate. The right hon. and learned Gentleman knows, as the right hon. Member for Berwick-upon-Tweed pointed out, that there are many other powers on the statute book. This has been a bipartisan debate, but if the powers were essential when we required anti-terrorist legislation, why were they not on the statute book until--
Mr. Howard:
There is a simple answer. The powers were put on the statute book because I asked the police
Mr. Straw:
I know that. I remember the debate and I supported the right hon. and learned Gentleman, with the usual active support from the Back Benches.
My last point concerns the Human Rights Act 1998. The debate has been an interesting excursion into the kind of issues that may arise under that Act. The right hon. and learned Gentleman said that the country would live to regret the day that it put the legislation on the statute book. The right hon. Member for Maidstone and The Weald said the same.
However, that was not the view of the official Opposition when the Act came through the House. On Third Reading, they said:
Perhaps that is another change of policy in a matter of a few months, not as a result of a change of leadership of the Conservative party, which as far as I recall has stayed the same, but a change of opinion among members on the Front Bench. We shall live and learn.
I thank the House for the way in which it has dealt with this issue.
"Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence".
That was a decision by Parliament that has stood the test of time. For good reasons--and in rather interesting parallel circumstances--it was decided that the burden of proof would rest with the defendant rather than with the prosecution.
"Although we have opposed aspects of the Bill"--
which were put in proper order as a result of a good Committee and Report stage on the Floor of the House--
"we now wish it well and hope that it will be implemented effectively, to the benefit of the citizenry as a whole."--[Official Report, 21 October 1998; Vol. 317, c. 1362.]
On 21 October 1998, the Opposition wished the Human Rights Act well.
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