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Mr. Bermingham: It is a total breach of the convention.
Mr. Hughes: The hon. Gentleman, who is a practising member of the Bar, confirms that. He may want to contribute to the debate.
I shall not reiterate all the points made in Committee, but I refer colleagues to the debate on 1 February in the seventh sitting which begins in column 244 of Hansard. The arguments about clauses 55 and 56 were subject to the same criticism, and this is only one of many examples in the Bill of a reverse provision where one has to prove that one did not know about something. Self-evidently, that is an extremely difficult thing to do.
I draw the attention of the House to the breadth of the provision. First, any article can render one guilty; it does not have to be a firearm, ammunition, Semtex or a knife. The Bill says:
- A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion.
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That need not be one's own house, caravan, land or car; it can be the house of a person with whom one is staying, of a person whom one is visiting, of a member of one's family, or of a work colleague; it can be the farm house if one is a farm worker, or a barn on the farm if one is the farm owner. The fact of an article being found on any and all of those premises is sufficient to reverse the burden of proof.
The clause does not apply to public buildings, such as pubs or shops, but it does apply to any premises of which one is an occupier, or which one habitually uses, or in which one was present at the same time as the article in question. That means that one would be guilty even if the article was on those premises when one was not there, because one was the occupier of those premises.
The legislation does not apply solely to Northern Ireland; these events could occur in London, Belfast, Birmingham or Glasgow. I am the occupier of my house, so if an article now in my house were to be found there, I could be presumed to be guilty of an offence. It will be apparent to the House that we are entering a realm of culpability extending beyond any previous provisions applicable to this country.
The third objection is the presumption of guilt and the reversal of proof. The House understands that criticism perfectly well, and the reasons for it. I am not being mischievous or partisan, I just want to put on record the fact that people who are now members of the Government argued against such provisions only a few years ago, when they were in opposition. The Attorney-General--this country's senior Law Officer--has argued against such provisions and made the case. In similar cases, involving exactly such provisions, we as a country have been found to be in breach of the convention.
There is case law, which I shall not detail as people can easily find the relevant references. One does not even have to prove a prima facie case to pass the reasonable suspicion test; extremely thin evidence may be considered sufficient to establish a subjective reasonable suspicion. A case from the highest legal authority, the Privy Council, confirms that, as do several others.
The fourth argument rests on the fact that the Bill is not applicable solely to Northern Ireland. It could apply to international organisations based abroad and to premises abroad that one occupies, such as a holiday villa or flat, or a rental property. There are all sorts of ramifications extending beyond this country.
If the Government want to persuade us that such legislation is required, the burden of proving that rests with them. That is putting it gently. If Ministers want us to agree to the provision, which is repeated throughout the Bill, they must persuade us that it is both justified and a good thing.
It is true that, in this matter, on the balance of judgment, Lord Lloyd was on the Government's side. The argument rests on how far we want anti-terrorism legislation to go. It is also true that there have only ever been two prosecutions in respect of legislation such as this. Even so, it strikes me that the more important issue is that of the clear legal advice, based on case law, that I have received. The question is whether we want to fly so flagrantly in the face of such strong authority.
The Minister has said, and I believe him, that the legal advice that he has received is that the provision is compatible with the convention. I tried to be as open as I could and asked to see it. Obviously, lawyers may disagree and there may well be two legal opinions, but at least let us examine the arguments which suggest that the provision is compatible with the European convention. That advice has not been forthcoming. I understand that even if we had the most wonderful freedom of information legislation, such advice to the Government would probably not be required to be produced.
Unless the Government can produce such independent authority against the backdrop of the case law, they are not passing the test of showing the case to the House. I shall not detain the House further. We shall press the amendment to a Division.
The Home Secretary sold the Bill to us on the basis that it would be UK-wide legislation. It will not be for part of the United Kingdom, but for all of it. It will not
be for people only in the United Kingdom, but for people beyond it. It will not be for a limited period, but indefinitely.We cannot legislate in a way that is compatible with our legal obligations and the rights of our citizens if we put such legislation on the statute book. I hope that people will realise that the good British legal tradition that a person is innocent until proven guilty should remain, unless the Government can advance an overwhelming argument for it to be changed. They have not made that case.
Mr. Corbyn: I shall be brief, as the hour is late. I endorse what the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) said in support of his amendment.
The basic principle of all law must be that a person is innocent until proven guilty. The clause appears to go in the opposite direction. It would indict someone who has been regularly on the premises where it is believed that some material that could be used for terrorist activities is held. It would also require a person to prove his lack of knowledge--in other words, to prove his innocence, rather than the prosecution proving a case against that person.
On a number of occasions, people have been arrested under the existing PTA and subsequently convicted and imprisoned, or arrested under other legislation, and have subsequently proved to be innocent. I am thinking of the case of Danny MacNamee, who spent many years in prison and was finally acquitted. He was charged with possession. It was later proved that he could not have done what he was supposed to have done with the material that he had.
Draconian legislation is proposed. I endorse the comment of the hon. Member for Southwark, North and Bermondsey that the Bill is different from other Bills. It is a permanent, not a temporary provision. Someone could be convicted on the basis that, because of regular visits to a place, it could be claimed that he had knowledge of what was going on there. In those circumstances, it would be difficult for the person to prove otherwise.
I fear that, if the Bill is enacted in its present form, we will return to the miscarriages of justice of yesteryear, which we hoped to have left behind us, with the changes in attitude and legislation following the release of the Birmingham Six, the Guildford Four and others. We may want to deal with the problems of people who place bombs that kill innocent people, but this is not the way to do it. We are being urged to convict the innocent along with the guilty. That prejudices the entire judicial process.
I ask the Minister to explain the justification for stating in the Bill that one must prove a lack of knowledge of something. It is virtually impossible to do that. The onus should be on the prosecution, rather than on the defence, to prove that. The provision goes against the principle that the burden of proof should lie with the prosecution. It states that the burden of proof must lie with the defence. That cannot be right. It is contrary to the basic principles of our law.
Mr. McNamara: I shall not detain the House long. The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) and my hon. Friend the Member for Islington, North (Mr. Corbyn) have made most of the points. I shall make two observations.
When the Bill was first published, it contained the fiat from the Home Secretary that nothing in it was contrary to the human rights convention. The hon. Member for Southwark, North and Bermondsey read out the clause, so I do not intend to do that. However, I shall repeat article 6 of the European convention on human rights. Article 6.2 states:
- Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law.
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