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Lord Campbell of Alloway: I fail to see the dilemma to which my noble friend referred. Surely it is fairly simple and not very complicated. Under the provisions of Clause 3, at line 11, the commissioners must consider whether a prisoner is or is not a supporter of a terrorist organisation. "Terrorist organisation" must include, in the words of the amendment, the proscribed organisation so that if, as a matter of fact, the commissioners, on their inquiry, conclude that he is not a supporter of a terrorist organisation, that means that there is no need to include the amendment at that stage.
Then one reaches a subsequent stage where a terrorist organisation is specified by order by the Secretary of State. That is not done by a commissioner but it is
another process. He may specify only organisations which, under the terms of Clause 3(8)(b):
- "have not established or are not maintaining a complete and unequivocal ceasefire".
I simply cannot understand the difficulty. It seems to me that it is a two-stage process undertaken by two different people. It is the type of process which was envisaged by the agreement. I make no apology for relying on the agreement and on the letter of it. I cannot see a difficulty unless there is something defective with my reasoning.
6.30 p.m.
Lord Tebbit: It is quite clear to me that this is a rather difficult proposition. If one looks, first, at the responsibility of the Secretary of State, as my noble friend Lord Campbell of Alloway said, it will be seen that it is to define what is a terrorist organisation and, indeed, to list those which are terrorist organisations. The commissioners would not therefore release, or recommend for release, any person who is a member of one of those organisations.
Here is the difficulty. Let us take, for example, the IRA. As my noble friend Lord Cope said, the IRA is a proscribed organisation under the Protection of Terrorism Act precisely because it is a terrorist organisation. But a whole number of the prisoners in the Maze gaol have accommodated themselves, at their wish, in the wings which are run by their favourite terrorist organisation. They have taken that action to show that they are members of it. Indeed, it is proposed that they will be let out precisely because that terrorist organisation is currently on ceasefire. It will be held that the IRA is different in this respect from the INLA. They are both terrorist organisations, as set out in the Protection of Terrorism Act, but one of them is on ceasefire and therefore, as the Minister said on Second Reading, the IRA is for this purpose not a terrorist organisation, while the INLA is.
The only distinction between the two organisations is the fact that one is on ceasefire and the other is not. So where do we go from here? I believe that my noble friend has identified a very clear difficulty. I shall be interested to hear the Minister's reply.
Lord Kilbracken: It seems to me that a great deal of confusion arises because of the use of the words "terrorist organisation" in subsection (4) of Clause 3. When we talk about terrorist organisations, we are completely accustomed to thinking of the IRA, the UVF or any of the other organisations that have been involved in terrorism. However, for the purposes of the Bill, we must look to subsection (8) of the clause for a definition of a "terrorist organisation". In effect, the subsection says that if the organisation is on ceasefire it is no longer a terrorist organisation. The members of it are exactly the same and the organisation is the same, but because for the time being it is on ceasefire, it is no longer a terrorist organisation. If it comes off ceasefire, the same people and the same organisation will be involved. But suddenly it is a terrorist organisation.
My own feeling is that this situation could quite easily be rectified by a simple rewording of subsection (4); namely, that,
- "the prisoner is not a supporter of a specified organisation".
- "A specified organisation is an organisation specified by order of the Secretary of State".
Viscount Brookeborough: I support the amendment for some of the reasons that have just been given. Sinn Fein is the political wing of the IRA, with the IRA being the military wing of Sinn Fein. Although it is a proscribed organisation within the Prevention of Terrorism Act, I do not see how it can ever become a non-terrorist organisation when it calls itself the Irish Republican Army. Therefore, it is difficult to see how the Secretary of State or anyone else could actually convince most people in Northern Ireland that the UVF, the LVF, the INLA or the IRA were non-terrorist organisations. For that reason, I support the principle behind the amendment.
Lord Desai: My noble friend Lord Kilbracken has pointed out where the problem lies. We shall come across this problem again and again. However, if we defined the whole thing completely, logically and legally, we would find that there are many anomalies because it is a messy situation. In other words, we cannot take it as a straightforward legal situation.
In his excellent Second Reading speech the noble Lord, Lord Tebbit, made the point that this is not a post-colonial settlement; it is a settlement within the laws of the UK. He was right in one way, but I would say "yes and no" which, as an academic person, I am entitled to do. We had a second referendum in the South. The referendum in the South had to do with the fact that this is neither a purely post-colonial situation nor a purely UK situation. Those two referendums had to be done together because it was a post-colonial situation as of 1922 which was dragged into 1998. Within the Northern Ireland context, it is a UK situation.
Therefore, as I said, we shall come across the situation again and again where pure logic does not apply and politics takes over. Politics is a very messy concept. I quite agree that many people feel very strongly about the matter. As my noble friend Lord Kilbracken said, there are terrorist organisations which, under some definitions, are "all terrorist". However, some of them have declared a ceasefire and have constructed a situation through which this agreement has been made possible.
All of us know that this is a particularly fragile situation. It may all unravel and we may find ourselves back at square one, where we have been before. However, the point of the Bill, especially the way that it combines subsections (4) and (8) of the clause, is that
it says, "Yes, there are terrorist organisations, but the ones that we are currently interested in are those which have agreed to a ceasefire". That is the distinction. Therefore, it is no good defining those organisations under the PTA; indeed, that would be far too general politically. Legally it is right, but politically the correct situation is to see who has agreed to a ceasefire.
Lord Tebbit: I believe that the noble Lord has missed one of the points; namely, that this is an Alice Through the Looking-glass situation. The IRA will be, simultaneously, not a terrorist organisation but still a "proscribed organisation" because it is a terrorist organisation. I may be a simple soul, but I find that very difficult to accommodate. It is as though the Church of England were being held to be simultaneously both a Christian organisation and an atheist organisation. It will cause some puzzlement to all of us, although perhaps not to entirely all of us at times. However, one can understand that it ought to be one thing or the other: is the IRA a terrorist organisation or not? You cannot have two pieces of legislation on the statute book specifying contrary things.
Lord Campbell of Alloway: Surely we have constructively exposed the gremlin in the drafting. Something has gone wrong here. You cannot be a terrorist organisation and then not be a terrorist organisation because you happen to be on ceasefire. I say that because the next day, after the decision has been taken, the ceasefire may be rescinded. If the noble Lord, Lord Dubs, were prepared to consider how the anomaly arises in relation to this provision as drafted, perhaps it would be helpful to have some form of government amendment, or our own amendment, at Report stage. There is something adrift here.
Lord Desai: I shall now reply to the noble Lord, Lord Tebbit. The IRA is a terrorist organisation, but within the class of terrorist organisations some have agreed to a ceasefire but others have not. Subsection (8) states explicitly on the face of the Bill that those terrorist organisations which have agreed to a ceasefire are to be treated differently from those which have not. That seems to me logically to be all right. There can be different kinds of terrorist organisation. As my noble friend Lord Kilbracken said, we cannot undo the fact that the IRA is a terrorist organisation. However, we can take into account the fact that it has agreed to a ceasefire and therefore its political wing, Sinn Fein, has taken part in the negotiations which led to the agreement.
I refer to the post colonial/non-colonial distinction. We have been through this before. Someone who was a terrorist became the prime minister of Israel. I refer to Menachem Begin. He was a terrorist who had belonged to a terrorist organisation. The British Government declared him to be a terrorist but he became a prime minister and we loyally supported him when he was prime minister. I could refer to many other examples: Cyprus, India and so on. In this situation we need to apply a political and a legal sense. From that point of
view I believe that we should reject the amendment because it seeks to make a simple situation on the face of the Bill much too complicated.
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