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Mr. Charles Clarke: First, I will deal with the amendment tabled by my hon. Friend the Member for Hull, North (Mr. McNamara). We had a broadly similar argument in Committee. The purpose of the amendment is to reduce the time that a person may be kept in detention from seven to four days. It is likely that the amendment is inspired by the Northern Ireland Human Rights Commission, which, reasonably, submitted evidence on the subject. It argues that detention for more than four days and six hours, as identified in the Brogan case, might be a breach of the European convention on human rights. The Brogan case centred on the time in detention without judicial sanction. The judgment in that case is not relevant to the time that is permissible with judicial approval.

I fully recognise that Lord Lloyd recommended four days' detention in total, even with judicial involvement, but he did not recommend such a reduction in the circumstances that prevailed at the time of writing his report. He was satisfied that there were occasions when the police might have found it more difficult to bring charges if detention were limited to four days. The Government continue to believe that there may be occasions when the police need more than four days and we are introducing judicial authorisation, which is a major departure. As I said in Committee, the judicial authority will have to be satisfied as to the police need for further detention; the Bill requires him also to be satisfied that the investigation is being conducted diligently and expeditiously.

Seven-day detention will remain a rare occurrence, but the provision is needed none the less. I repeat the figures that I quoted in Committee on that matter. The figures for PTA detentions in Northern Ireland from 1 July to 30 September show that four persons were detained in the three to four-day period; two were charged and two were released. In the four to five-day period, two persons were detained; one was charged and the other released. In that quarter, no individuals were detained for more than five days.

I do not accept that seven-day detention breaches the Brogan judgment, which found that detention for four days and six hours was a breach of the convention. The judgment centred on the lack of judicial involvement in the detention process--not on the precise time. Nor do I accept that the judicial authority will grant five-day detentions as a matter of course. The Bill provides for further extension to be granted; that reflects the current position where extensions are granted incrementally.

However, I do not favour placing a statutory limit on the time that can be granted per application. That will be a matter for the judicial authority based on the evidence

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before him. The ECHR demands that the authority hear both sides; the Bill delivers that. I hope that my hon. Friend will consider withdrawing his amendment.

As for the amendment tabled by the hon. Member for Aylesbury (Mr. Lidington), I agree with him that the issue is extremely important, and, as he acknowledged, we debated it in Committee. The effect of the amendment would be to remove the judicial authority from the process. We would revert to the current position in which extended detention is a matter for the Secretary of State. On Second Reading, the official Opposition suggested that that was a proper role for the Executive--even though it would require continued derogation from the convention. The point was expanded in Committee where the hon. Gentleman suggested that the role was not a proper one for the judiciary--as he has also done this evening.

There is a fundamental difference in the approaches taken by the Opposition and by the Government. It is a perfectly reasonable difference of principle of which I make no criticism. However, the amendments miss the opportunity to place decisions about the liberty of the individual in the hands of those who are best placed to make such a judgment--the judiciary. To take that opportunity would meet our ECHR obligations and, happily, from our perspective, would enable the UK's derogation from the convention to be withdrawn.

Since May 1997, an important aspect of Government policy has been that we should end the UK's derogation from the ECHR. One of the effects of our approach in this matter would be to achieve that.

I fully acknowledge that there is more than one way to approach an issue. In this case, the official Opposition elect to retain executive authority, while the Government believe that it is right to follow the judicial route. For the reasons I have given, I hope that the Opposition amendments will not be pressed to a vote.

I commend the Government amendments to the House.

Amendment agreed to.

Amendments made: No. 16, in page 18, line 38, leave out "apply" and insert "make an application".

No. 17, in page 18, line 38, leave out--


'Part III of that Schedule'

and insert--


'paragraph 26 of Schedule 7'.

No. 18, in page 18, line 41, leave out "is being made or".

No. 19, in page 18, line 41, leave out from "under" to second "a" in line 42 and insert--


'paragraph 26 or 32 of Schedule 7 in respect of'.

No. 20, in page 19, line 1, leave out from "Where" to "in" and insert--


'an application under paragraph 26 or 32 of Schedule 7 is granted'.

No. 21, in page 19, line 3, at end insert--


'( ) The refusal of an application in respect of a person's detention under paragraph 26 or 32 of Schedule 7 shall not prevent his continued detention in accordance with this section.'.

No. 22, in page 19, line 3, at end insert--


'() A person who has the powers of a constable in one Part of the United Kingdom may exercise the power under subsection (1) in any Part of the United Kingdom.'.--[Mrs. McGuire.]

15 Mar 2000 : Column 435

Clause 42

Search of Persons.


Amendments made: No. 23, in page 19, line 23, at end insert--
'( ) A constable may seize and retain anything which he discovers in the course of a search of a person under subsection (1) or (2) and which he reasonably suspects may constitute evidence that the person is a terrorist.'.
No. 24, in page 19, line 23, at end insert--
'( ) A person who has the powers of a constable in one Part of the United Kingdom may exercise a power under this section in any Part of the United Kingdom.'.--[Mrs. McGuire.]

Clause 44

Exercise of Power.

Mr. Charles Clarke: I beg to move amendment No. 25, in page 20, line 18, after "seize", insert "and retain".

Mr. Deputy Speaker: With this it will be convenient to discuss Government amendments Nos. 26, 59, 94, 100 to 108, 112 to 114, 117, 118 and 121.

Mr. Clarke: The amendments provide consistency throughout the Bill regarding the seizure and retention of things. Amendment No. 59 specifies more precisely those whom a pilot of a not-for-reward flight may notify of his intention to arrive or depart at a non-designated airport. The other amendments in the group are technical and consequential, and repeals.

Amendment agreed to.

Clause 56

Possession for terrorist purposes.

Mr. Simon Hughes: I beg to move amendment No. 182, in page 25, leave out lines 4 to 11.

I hope the House will agree that the amendment is important. This is the only opportunity that we shall have to discuss two matters that were central to previous debates. The first is whether the Bill, as drafted, is compatible with the European convention on human rights. The second is whether it is right that there should be powers to create what is sometimes described as the reverse burden of proof--whereby people have to prove that something is not the case, rather than the prosecution having to prove that it is the case.

The amendment applies to clause 56, which creates the offence of possession for terrorist purposes. The clause says:


If those circumstances give rise to a reasonable suspicion, it is a defence for the person charged with the offence to prove that his possession was not for a purpose connected with that act. He has a statutory defence if he can show that the inference is wrong.

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The following subsection is particularly dangerous, and the amendment will remove it if the House agrees with us. It says:


I hope that by simply reading the clause, without any argument, I begin to make the case that this is, in the words of my hon. Friend the Member for North Cornwall (Mr. Tyler), a "guilty until you prove yourself innocent" clause rather than an "innocent until you prove yourself guilty" clause. There are significant reasons from case law for believing that the provision falls foul of the convention. I have been given clear legal advice that the provision breaches the convention.


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