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Lord Cope of Berkeley: My amendment does not seek an open process. There is nothing in the

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amendment to suggest that the application or the representations about it should be heard in public or argued out in a public forum such as a court of law. Of course I understand the point about intelligence information--the Secretary of State will make his decision very largely on information that he may not wish to disclose--but that is not what I am looking for. All that I seek is for those who may be victims of a particular organisation, or otherwise affected by it, to be in a position to make representations about why it should not be deproscribed. Amendment No. 21 makes a similar point.

The Minister said that there is nothing to stop them from making representations. I agree--there is nothing to stop them provided that the application has been made--but the application can be made secretly and, unless this amendment or one similar to it is agreed to, the Secretary of State has no obligation to publicise it. They are not going to make representations on the off-chance that there may have been an application to deproscribe.

The Minister does not seem to have answered the point. None the less, I do not propose to pursue the matter at this juncture and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Deproscription: appeal]:

Lord Goodhart moved Amendment No. 20:

    Page 2, line 39, at end insert--

("( ) Where an order has been made under section 3, the organisation may appeal to the Commission.").

The noble Lord said: Amendment No. 20 and the other amendments in this group concern the provisions in Clauses 3 to 10 of the Bill about proscription matters. What we have under this very curious procedure is sentence first and trial second. What happens is that the Home Secretary makes a proscription order. That order comes into effect immediately with all its consequences. Membership of the proscribed organisation becomes an offence. Arranging a meeting to be addressed by a member of the organisation becomes an offence. That is obviously interference, as my noble friend Lord Lester pointed out, with rights of association and rights of freedom of speech of the members of the organisation. Those rights are not unrestricted. There have been and will be cases where these draconian steps are justified. Surely that should normally happen only after some kind of hearing has taken place.

What happens here is a most peculiar procedure. The proscribed organisation cannot appeal against a proscription order. What it can do is to apply under Clause 4, which it can do immediately, to be de-proscribed. If that application is refused, it can go to a hearing before the proscribed organisation appeal commission. That is a somewhat misnamed commission because the commission does not hear what is, in the ordinary sense of the word, an appeal; it judicially reviews the Home Secretary's decision, and that in itself is not a satisfactory arrangement.

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The question then arises as to what happens if someone has been convicted of, let us say, membership of the organisation in the interval between the original proscription order being made and the date when the commission allows the appeal against refusal of the de-proscription order. This again is most peculiar. Under Clause 7, it all depends on whether the act which gives rise to the conviction occurred before or after the refusal by the Home Secretary to make a de-proscription order. If the offence is committed after the Home Secretary's refusal, the defendant can appeal to the Court of Appeal and, by statutory provision, the like of which I have never come across before, the Court of Appeal is legally bound to allow that appeal. On the other hand, if the offence is committed before the Home Secretary has refused to make the de-proscription order, the conviction stands even if the ground on which the commission allows the appeal is that there is no evidence which would have justified the Home Secretary refusing the de-proscription order.

This whole procedure is unnecessarily elaborate. First, why not simply allow an appeal from the proscription order? That is the purpose of Amendment No. 20 and Nos. 22 to 24. Secondly, while such an appeal is pending, the consequences of proscription should not, we believe, in general apply and that is the purpose of Amendment No. 31. The appeal to the proscribed organisation appeal commission is the only form of judicial proceeding involved in the proscription process and, while the appeal is pending, we believe that there should be no liability to prosecution under Clauses 11 to 13 or to the other consequences of becoming a proscribed organisation.

We make one proposed exception to that on obvious grounds of common sense. The cash of a proscribed organisation is liable to seizure and detention under Clauses 25 to 27. If those clauses do not come into effect until an appeal is dismissed, it is obvious that the cash would have disappeared in the interim. It therefore seems reasonable to make an exception for the seizure and detention of cash. There could of course be no order for forfeiture under Clause 28 until the appeal is dismissed and, if the appeal is allowed, the cash would of course be returned.

We are seriously concerned about the fairness and justice of this exceptional procedure. We think it should be both simplified and also altered to ensure that the consequences of proscription do not come into effect until such time as a judicial body has had a chance to look at the matter. There may be cases in which more immediate interim action should be taken on matters other than cash but, if so, I suggest that the Government should come back with amendments which will target those particular occasions and not have a general rule which makes proscription orders come into effect immediately, whether or not there is in fact any good reason why they should do so. I beg to move.

8.15 p.m.

Lord Lester of Herne Hill: My name is also attached to this amendment, but I shall not repeat anything said

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by my noble friend. However, I should like to make one or two further points on which I hope the Minister and his advisers will reflect.

First, there is no doubt that, by proscribing an organisation, action is being taken that interferes with a human right, the human right to freedom of association and the associated right to freedom of speech.

Secondly, that interference can be made only if it is prescribed by law and is necessary in a democratic society. The Human Rights Act would ensure that this Bill must be read and given effect in a way that is compatible with those rights if it possibly can. However, it is much better if we can write into the Bill provisions that ensure it rather than leaving it to judges in mitigation to put the matter right.

Thirdly, if there are no criteria spelled out in the Bill as to the circumstances in which the proscribed act will take place, that will lack legal certainty because people will have to guess and will not know what the circumstances are in which an organisation will be proscribed.

Fourthly, proscription must be only where necessary for a pressing social need, the burden of proof being upon the Government rather than the organisation to establish that under the convention. The last point is that these convention rights--freedom of association and speech--must be determined not only in a manner prescribed by law but must involve a fair hearing.

The Minister has already referred to the need to withhold sensitive intelligence information from the organisations and their perpetrators. I accept that. However, this is not a new problem for the Government or Parliament. It has arisen twice before. The first example was the case of Chahal v. United Kingdom where, in relation to suspected terrorists who were being extradited to India, the "three wise men" procedure was held by the Strasbourg Court to be wanting, partly because English courts could not effectively review the merits of the decisions. That led the Government, very wisely, to introduce a special procedure with a special form of judicial protection with a court-appointed lawyer who did not have to represent the alleged terrorists but who was provided with the basic information so that the Government's case could be tested.

The second example was the case of Tinnelly v. United Kingdom, which involved a very sensitive terrorist problem where national security considerations had to be weighed against granting contracts in Northern Ireland to people suspected of being associated with the IRA or with terrorism. Again, the Government have, very wisely and sensibly, introduced a special procedure to accommodate Article 6 of the convention.

Article 6 is not absolute. The right to a fair hearing is not absolute. It may be qualified by necessary and proportionate limitations. I accept that. But given that paragraph 7(4) of Schedule 3 provides for a specially appointed lawyer to be able to represent the interests of the organisation without being responsible to it, I

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see no good reason why a court-appointed lawyer, as it were, cannot be provided with the basic information so there can be a fair hearing without any disclosure to the proscribed organisation or the perpetrators. These are serious issues.

If, on reflection, the Minister is against me on all these points and stands by the position that a truncated appeal procedure is compatible with the convention, I ask him this question. If it is to be so circumscribed, why on earth cannot that circumscribed procedure apply to the proscribing of the organisation rather than in the convoluted way set out under the Bill? I am not advocating such a circumscribed procedure, but if it is to be so circumscribed, I cannot think of any compelling public interest reason why Amendment No. 20 is not a sensible approach.

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