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1.25 am

Mr. Lidington: I wish that this Bill were not necessary. However, it is very necessary for the protection and security of the people of this country. Throughout our proceedings on Second Reading, in Committee and this evening, the Minister and his team have approached the subject with realism. They have also shown courtesy to the views that have been expressed by hon. Members of all parties.

Conservative Members have some differences of opinion with the Government over some aspects of the Bill, but we agree strongly with the proposals. We agree that the Bill is essential and should be on the statute book swiftly. If there is a Division on Third Reading, we shall support the Government.

1.26 am

Mr. McNamara: I, too, congratulate my hon. Friends the Ministers, who have listened to the debate and tried to meet the points made. I cannot support the Bill wholeheartedly, but I shall not vote against it.

My hon. Friend the Minister of State was right to pay tribute to the work of the Northern Ireland Human Rights Commission, Liberty and the Committee on the Administration of Justice. When he introduced the Bill originally, my right hon. Friend the Home Secretary mentioned the work of Gearty and Kimbell in preparing the ground for Lord Lloyd's report. I declare an interest, as I was responsible for that work being produced, with the help of a considerable grant from Unison to the civil liberties department of King's College.

All the bodies that I have mentioned have expressed concern that the Bill does not meet the requirements of the European convention on human rights. Nothing that we have heard in evidence this evening has persuaded me or some other Labour Members that the Bill meets the main thrust of some of the points of the convention.

On Second Reading, I drew attention to some of the points that the Bill failed to meet, and I want to revisit them and see where we have got to.

Clause 3 deals with prescription. Article 11 of the ECHR provides for a right to peaceful assembly and asserts that limitation of that right must be proportionate. Proscription is a cosmetic part of the prevention of terrorism legislation that is little used in the fight against terrorism. We discussed that earlier this evening.

Clause 5 and schedule 3 deal with the appeals commission for proscribed organisations, as we discussed earlier. Judicial review is the first test of appeal. In the case involving gays in the military, the European Court of Human Rights said that that was not sufficient and that the case must be heard on its merits.

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Clause 18 deals with the duty to disclose information. Its reversal of the burden of proof is especially dangerous, given the breadth of the definition of terrorism. It contravenes article 10 of the convention, which deals with the right of freedom of expression, in that it limits press freedom to collect information.

Clause 38 deals with the tipping-off offence, and again reverses the onus. It will stifle criticism of police and security and could contravene article 10 of the ECHR.

Clause 39 and 40 deal with powers of arrest, and will allow a constable to make an arrest without a warrant, on the grounds of reasonable suspicion. If such arrests take place to obtain information, rather than to secure a conviction, they will contravene article 5(1)(c) of the convention, which states that the intention behind an arrest must be to bring a suspect before a competent legal authority. Stop and search is contrary to the ECHR. In paragraph 2(6) of schedule 14 and clause 40(3), the right of access to lawyers can be delayed up to 48 hours. The contribution of my hon. Friend the Member for St. Helens, South (Mr. Bermingham) showed how that could breach article 6 of the European convention on human rights on the right of access to legal representation.

Clause 40 and schedule 7 deal with the detention of an individual for up to 48 hours and the exclusion of legal representatives from the application to extend the detention. Again, article 6 demands a right of access to a lawyer. Clause 43 deals with stop and search powers applied to anyone whom a policeman reasonably believes to be a terrorist. That is extremely dangerous, given the wide definition of terrorism, and probably violates article 8 of the ECHR on the right to privacy, unless interference is necessary in a democratic society.

Article 5(1)(c) of the convention provides for arrest, but with the requirement that a person is brought before a court. That provision is also contravened. Clauses 56 and 57 deal with offences to possess items and information that give rise to reasonable suspicion that they are being used for terrorist purposes. Again, the reverse onus clauses are included, which possibly breach article 6(2) of the convention on the right to be presumed innocent until proven guilty.

Article 10 of the ECHR provides a right to receive and impart information without interference from a public body, even if the ideas shock and disturb the state. That can be overruled only if the benefit to the state outweighs the cost to society. Given the current security climate, coupled with the reverse onus of proof, that would not seem to be a proportionate response.

I do not believe that the Government have faced up to the matters in the convention. I do not intend to divide the House because I think that that will be dealt with effectively and more directly by the European Court of Human Rights and, if not, by our own judges after October of this year. The Minister has, I believe, failed in that respect.

I welcome the independent review. I am only sorry that it is not followed by a guaranteed debate on the Floor of the House, plus an affirmative order, keeping the Bill in operation. The amendment that was not accepted earlier would have made the matter more complete.

It is regrettable that new clause 5 was not debated, because it dealt with the proposed Bill of Rights that is being discussed in Northern Ireland and that will be followed by legislation either later this year or early

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next year. It will be a problem ensuring that the contents of the proposed human rights Bill are compatible with those of this Bill. It would have been wise to wait for that legislation. I regret that we did not have the criminal law review so that we could compare the two. It is a sad thing that the other place may have it but we will not. It will make judgments that we have been unable to make.

I regret that the Bill is necessary, but I will not divide the House on it.

1.33 pm

Mr. Simon Hughes: I begin with the less controversial matters and thank the Ministers for courteously dealing with these matters in Committee and afterwards, and for the help that their officials have given in providing information. That was much appreciated.

The debate has been appreciated by all right hon. and hon. Members, from all parties. Points were made and answered--we did not just play to each other in a series of monologues. Where we differed, we differed, but at least we tested the opinion of others.

I join the hon. Member for Hull, North (Mr. McNamara) in thanking those who briefed the Committee generally and individual members personally. I thank Liberty, which is based in my constituency, for its assistance, not least on an amendment on a crucial matter. I also thank the two Northern Ireland organisations, the Committee on the Administration of Justice and the Human Rights Commission.

That leads me to the more controversial element of my remarks. The chief commissioner of the Northern Ireland Human Rights Commission judged at the end of our proceedings--up to yesterday--that the Bill was seriously flawed. The commission is the one human rights body in the United Kingdom that we have set up to give statutory advice to Parliament and to public authorities. If it tells us that we are doing the wrong thing, we should listen carefully.

On Second Reading, my colleagues and I made it clear that we support the idea of a United Kingdom-wide Bill, rather than a partial UK Bill, and a Bill that would get rid of exclusion orders. This Bill does that. However, we said that we did not support the idea of a Bill that could not return to the House for further consideration once it was on the statute book. There is a difference between permanent legislation and legislation that contains no power of review. One can have the permanent framework, but with a power of review. It is a serious defect that the Bill does not have that.

After Second Reading, which we supported because we support the principle of a Terrorism Bill, we suggested having a Special Standing Committee to consider and take evidence on some of the difficult issues--we have now suggested that twice this year, but we do not do it to be tokenism. Tonight's debate has vindicated the wisdom of that proposal. The key issue in the Bill is how one defines terrorism. Clearly, a huge amount of work remains to be done to achieve a definition that would meet with the agreement of large numbers of people in the House and outside it, if that can be achieved. A Special Standing

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Committee might have been able to make some progress on that matter, but we did not have one. It was left to the debate in Committee.

One of the fundamental flaws that remains in the Bill is the fact that the definition of terrorism is extremely wide and is not targeted. Large groups of people whom we have never contemplated as terrorists may well be caught within it.

Another area of concern is that excessive powers are given to Ministers and the authorities and cannot be reviewed. A further recurrent problem is that far too often the Bill does not uphold the normal legal rights of individuals. Only an hour ago, we debated the reverse burden of proof--defendants have to prove that they are not guilty to establish their innocence.

Our conclusion is that the Bill has not been amended as it badly needed to be, and that it will not be fit for the statute book when it leaves this House--if Third Reading is agreed to--in that it will not sufficiently uphold liberties and does not get the balance right. We had to make the straightforward, but difficult decision whether to continue to support the Bill or to force a vote. We decided collectively that we could not support the Bill as it stands. It has not made the progress that it ought to have made and the other place will have much work to do on it--in particular on the legal aspects and the civil and criminal justice processes--to put it right.

However, as it is important that we have UK-wide legislation on terrorism and because the Bill contains some good provisions, we will not go into the Lobby against the Government tonight--[Interruption.] Nearly all my colleagues have been here all evening and have voted many times against specific provisions of the Bill.

The Bill does not have our support as it needs to be amended significantly. Unless we amend it, it will not get the balance right and the state will end up with excessive powers against the citizen. I hope that the good will and good faith of Ministers will ensure that the work that needs to be done where we and they have said that the Bill is defective, can be done. Above all, if we are to have a Terrorism Bill on the statute book for the whole of the United Kingdom, I hope that we can define terrorism correctly. We regret that we have not made more progress in the three months that the Bill has been in this place.

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