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Lord Molyneaux of Killead: My Lords, I would very briefly, in two sentences, support what has been said by the noble Lord, Lord Cope, in moving the amendment. We are not in any way suggesting that the Secretary of State should be confused or overloaded by these responsibilities but, as the clause stands at the moment, it gives the impression of a grey area. If, by any miracle, I find myself in the position of the Secretary of State, I would welcome the wording as amended. It would put the position beyond all shadow of doubt.

Lord Holme of Cheltenham: My Lords, the only argument the Minister advanced in Committee against this amendment was that we should trust the Secretary of State. May I say unambiguously that I wholly trust the present Secretary of State? But that is not the issue which noble Lords are raising. Secretaries of State are mutable; others will succeed to the office. This legislation will last for some time. I think it is incumbent on the Government to say why the substitution should not be made.

Lord Dubs: My Lords, this amendment was considered in Committee. It concerns the application of the test in Clause 3(8) of the Bill. Under Clause 3(8) the Secretary of State may specify only organisations that she believes:

"(a) are concerned in terrorism connected with the affairs of Northern Ireland, or in promoting or encouraging it, and

"(b) have not established or are not maintaining a complete and unequivocal ceasefire".

That is the test clearly contemplated under the terms of the Good Friday agreement.

Amendment No. 4 would place the Secretary of State under a duty to specify any organisation which she believed failed the two tests set out in Clause 3(8). It is neither necessary nor appropriate to place the Secretary of State under such a duty. If the Secretary of State believes that an organisation fails these tests, she can and will make an order specifying the organisation as a "terrorist organisation".

Nothing is gained by placing the Secretary of State under a duty in this way. In addition, noble Lords will also be aware that any order made under this clause is subject to the affirmative resolution procedure, so noble Lords will have the opportunity to debate which organisations should be specified when such an order is made.

Lord Holme of Cheltenham: My Lords, before the noble Lord sits down, in that very lucid response he said that the Secretary of State "can and will". If the Secretary of State "will", what is the difference from "shall"?

Lord Dubs: My Lords, the difference is that parliamentary draftsmen will normally use a form of wording because they think it is most appropriate to the

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circumstances. When I said that she "can and will" I was saying that the Secretary of State would clearly interpret both the wording of the Bill--and, indeed, the thrust of the debate here today--in the way I have indicated. However, I believe it would still be preferable to leave the wording as it is now, on the face of the Bill unamended.

Lord Cope of Berkeley: My Lords, I am not convinced. The Minister says that the Secretary of State will never use the discretion. In that case, what on earth is the point of having the discretion in the Bill when all it could do is give rise to extra argument, judicial review and so on? I notice that two of the lawyers who were with us a little earlier have left the Chamber, so I think I can venture on to dangerous ground. It seems to me that the discretion might be such as to give rise to judicial review and to other questions.

The Minister sought to comfort us by saying that because of the affirmative orders the House will have the opportunity to decide whether the Secretary of State has made the correct decision. But the House will not have the opportunity to decide whether the correct decision has been made as regards any organisation where the Secretary of State chose to use the discretion. If some future Secretary of State chose to use the discretion, we should not have the opportunity to discuss the issue because an affirmative order would not be required.

The matter is not satisfactory. I hope that the Minister will reflect on it further in case we wish to return to the issue at a later stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

Lord Cope of Berkeley moved Amendment No. 5:

Page 2, line 35, leave out ("take into account whether") and insert ("satisfy himself whether or not").

The noble Lord said: My Lords, having discussed that item in minutiae, we come to one of the main problems in the Bill.

We are agreed I think in all parts of the House and between the two Front Benches that the Bill should reflect the agreement. The difference is that on this side of the Chamber we feel that the Bill should reflect the whole agreement, whereas the Minister thinks that it should reflect the section on page 25 of the agreement headed "prisoners". That is the point of principle underlying the amendment.

The practical point is whether prisoner releases will continue up to and including the two-year stage if decommissioning is not proceeding in parallel with the releases. It is not a pre-condition. We do not ask for decommissioning to take place either in whole or in part before any releases occur. But we want the two to proceed in parallel.

I believe that the agreement clearly envisages that in its overall terms and in particular in its opening statements of the agreement. The Prime Minister has emphasised, as have many other people, that the agreement has to be taken as a whole, and that one

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cannot take out individual pieces. At present the Bill does not do that. It provides that the Secretary of State has to take into account whether an organisation is doing the four things set out in subsection (9), including in particular co-operating with the decommissioning commission.

We suggested in earlier debates more sweeping proposals to the Bill. Those were rejected by the Minister. But this amendment deletes the words "take into account whether". The subsection would provide that,

"In applying subsection (8)(b) the Secretary of State shall in particular satisfy himself whether or not an organisation",

is doing what is set out in the Bill, including co-operating with the decommissioning commission. It is a weaker version which is less satisfactory to me in many respects. But it is an attempt to encourage the Minister a little further in our direction. I hope that at the very least it will cause the Minister to say clearly that the Government are determined to see the whole agreement, including decommissioning, put in place over the same timescale of two years, and that if decommissioning is not running in parallel as the two years progress then prisoner releases will not continue.

I believe that to be the Government's position. It should be spelt out clearly for the benefit of the law-abiding public. It should also be spelt out so that there can be no complaints from prisoners if the release programme is stopped at some point during the two years because decommissioning is not proceeding in parallel. It would be unfair to let prisoners believe that they will be released if the whole agreement, including decommissioning, is not proceeding.

Your Lordships may recall--I have said it before--that I hate the idea behind the Bill. I believe that prisoner releases are acceptable only if their organisations have given up violence for good. I think that the Bill is an injustice anyway, and without decommissioning, without a proper end to violence, it is a horrible and a deadly mistake to pass the legislation, which could have appalling consequences.

Nevertheless, the Bill is acceptable if there is a permanent end to the violence. Decommissioning is the most practical, verifiable and effective way of gauging the reality of a permanent end to violence as opposed to a temporary lull. There have been previous temporary lulls. But that is not enough to justify a Bill of this character. If an organisation, in the terms of the Bill,

"is committed to the use now and in the future of only democratic and peaceful means to achieve its objectives",

then it can have no use for arms and explosives. I can foresee difficulties about establishing for certain whether some members of what has been until now a terrorist organisation are still preparing plans for violence. But there will be no doubt about the fact of decommissioning. That is why I say that it is the most verifiable, effective way of judging the end to violence.

The other criteria depend to a great degree on the Secretary of State gauging sensitive, difficult, intelligence information, good as that can sometimes be. But for the decommissioning commission to say that it can certify that x number of guns or pounds of

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explosives have been destroyed is a different matter. It is a matter that everyone will know about. It will demonstrate clearly that there has been an end to violence. It will be difficult for anyone to be sure that all the weapons of an organisation have been destroyed. Of course new weapons can be obtained; and of course some terrorists will continue the violence in support both of political aims and for the financial rackets. But decommissioning still remains the key action which will signal an end to violence by a terrorist organisation. It is a key requirement of the agreement.

The agreement needs to be implemented in full. I believe that the Bill should reflect that. The amendment goes a small way to seek to achieve that.

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