House of Commons Hansard Debates for 14 Dec 1999 (pt 11)

Mr. Ken Maginnis (Fermanagh and South Tyrone): Will the hon. Gentleman give way?

Mr. McNamara: I realise that other hon. Members have given way to me, but, with the greatest respect to the hon. Gentleman, I gave a specific undertaking to the Chair that I would not take up too much time. I should be more than willing to cross swords with the hon. Gentleman in Committee--indeed, I shall be more than delighted to do so.

Mr. Maginnis: The hon. Gentleman is frit as usual.

Mr. McNamara: The hon. Gentleman--

Mr. Deputy Speaker (Sir Alan Haselhurst): Order. I point out to the hon. Member for Fermanagh and South Tyrone (Mr. Maginnis) that the hon. Member for Hull, North (Mr. McNamara) is perfectly within his rights not to accept an intervention. Comments such as those made by the hon. Member for Fermanagh and South Tyrone from a sedentary position are not really in the spirit of the House.

Mr. Maginnis: On a point of order, Mr. Deputy Speaker. I apologise for having spoken from a sedentary position. However, it is well known that the hon. Member for Hull, North (Mr. McNamara) pursues a tedious path in his interpretation--

Mr. Deputy Speaker: Order. The hon. Gentleman is compounding his offence.

Mr. McNamara: If the Chair will allow me to forego my promise, I shall willingly give way to the hon. Gentleman, but having given that undertaking, I felt that I should honour it.

Mr. Maginnis: I am grateful to the hon. Gentleman for giving way. He pursues his usual tedious and predictable

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path through the measure. He always talks as though successive Governments have deliberately discriminated against Irish people. It appears that he has no understanding of the terror of the 3,500 people killed or 300 policemen injured. Would the hon. Gentleman balance the remarks in the remainder of his contribution so that we can hear the matter put properly in context?

Mr. McNamara: I do not need lectures from the hon. Gentleman on how hard the deaths in Northern Ireland have hit home--I have had personal experience. However, I am concerned that we should have a proper system and a proper understanding of the rule of law. The effect of the legislation, especially in the 1970s and the early 1980s, was to alienate a whole community. That is not a good thing.

We have already discussed the definition of terrorism, so I shall not pursue the points that I had planned to make on that subject. It will be interesting to hear what comes up in Committee on that matter.

On the front of the Bill, there is a statement by my right hon. Friend the Home Secretary that the Bill does not offend against the European convention on human rights. That is not the opinion of the Human Rights Commission in Northern Ireland. At the drop of a hat, the commission found six cases under the EPA provisions. Section 13, on the onus of proof on possession of proscribed articles, is incompatible with the presumption of innocence in article 6 of the convention. Section 20, on the power to enter and search premises without a warrant, is incompatible with the right to respect for private life in article 8.

Section 25, on the power to stop and question, is incompatible with the right to liberty in article 5(1)(b). Section 30(A), on onus of proof on possession of certain documents, is incompatible with the right to a fair trial in article 6. Section 30A(2), on the evidence of a police officer--that is the stupid legislation that we pushed through after Omagh, in another fit of panic--is incompatible with the right to a fair trial in article 6(3)(d). Section 30A(4), on inferences from silence in respect of membership charges, is incompatible with the right to a fair trial in article 6(1).

In the prevention of terrorism provisions contained in the new Bill, the Human Rights Commission identified10 matters that were incompatible with the European convention. Clause 3, on proscription, might be incompatible with article 11 of the convention, which provides for a right of peaceful assembly. Under clause 5 and schedule 3, on the Proscribed Organisations Appeal Commission, judicial review is the first test for appeal. However, following the "gays in the military" case, the European Court said that a judicial review in itself was not sufficient, and that we could go to the merits of the case.

Clause 18, on the duty to disclose information with reversal of the burden of proof, contravenes article 10--the right to freedom of expression. It also limits press freedom to collect information and relates to sorry circumstances such as the Stephens inquiry's pursuit of Ed Malone of the Sunday Tribune recently. Clause 37, on the tipping-off offence, again reverses the onus. It possibly stifles criticism of the police or security services, and therefore contravenes article 10 of the convention, on freedom of speech.

Clauses 38 and 39, on powers of arrest, may well contravene article 5(1)(c), which lists the grounds of arrest. It must be remembered that previous Home Secretaries

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have justified that power, not to gain convictions but for fishing expeditions to gain evidence--arresting people not to prosecute them, not even because they were thinking about it, but to try, by questioning, to get information. That was justified by the then Home Secretary, the former European Commissioner Mr. Leon Brittan.

We then come to schedule 13, paragraphs 2 and 6, on the right of access to lawyers, which can be delayed for up to 48 hours. That contravenes article 6 of the convention. Clause 39 and schedule 7, on the detention of an individual for up to 48 hours, similarly contravenes the convention.

Clause 42 gives a policeman the power to stop and search anyone that he reasonably believes to be a terrorist. That creates all sorts of problems on the basis of the new, wider definition of terrorism that appears in clause 1. The Bill will leave itself wide open to challenge because a case relating to the narrow, secure and specific definition would be easier to defend before the European Court than would a case that is so broad and so wide in what is being averred.

Clauses 55 and 56 would make it an offence to possess items that give rise to a reasonable suspicion that they are being used for terrorist purposes. Again the onus of proof has been reversed, breaching article 6(2)--the right to be presumed innocent until proven guilty. Interestingly, in the Stobie case, when Mr. Stobie was charged with the possession of guns and ammunition and had to prove his innocence under the existing legislation, the Director of Public Prosecutions dropped the case in the absence of any proof. That was a remarkable decision by the DPP. Perhaps my right hon. Friend the Home Secretary should have borne that in mind when he was giving his paean to some public officers in the Stobie case.

Finally, the Bill would make it an offence to possess information that is likely to be useful to terrorists, and article 10 of the European convention provides a right to receive and impart information without interference from a public body--even if the ideas "shock or disturb" the state.