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Lord Hylton: I agree with the noble Lord, Lord Avebury, on the point he has just made. However, my concern relates to Clause 11(2) placing the burden of proof entirely on the defendant, who must prove absolutely the various points set out. I wonder whether the Government would be happy to accept, at the next stage of the Bill, an amendment using some lesser
Lord Lester of Herne Hill: Perhaps I may add another question to the multiple-choice examination that we have inflicted upon the Minister. Might the Government seek to solve the problem by accepting that under Clause 11(1) guilty knowledge is necessary; in other words, that a person commits an offence if he knowingly belongs or professes to belong to a proscribed organisation? That would take care of the problem raised by my noble friend.
Lord Bassam of Brighton: Clause 11(2) contains a defence to cover the very rare and specific set of circumstances in which a person becomes a member of an organisation before it is proscribed and has played no part in it after its proscription. To all intents and purposes the person has left the organisation, although that may not be possible in the circumstances. Normally, it is an offence to be a member of a proscribed organisation and no distinction is drawn between active and passive membership, but in the interests of justice this provision makes an exception in the specific case that I have set out. Having made an exception to the general rule that membership per se is an offence, it seems reasonable that the onus should be on the defendant to make the case that he or she has not played an active part in the organisation. As I understand it, there have been no prosecutions for this offence since 1990. In the period 1991 to 1998 only 90 people have been convicted of the offence in Northern Ireland.
It is important to ensure that there is power for proscription to take effect immediately. If an organisation pursues an active campaign of terrorism in this country the public will expect it to be made illegal now, not given a warning that it needs to argue the case on appeal. In general Clause 11 makes it an offence to belong or profess to belong to a proscribed organisation. That provision is modelled on legislation with which we are very familiar: Section 2 of the Prevention of Terrorism Act and Section 30(1)(a) of the emergency provisions Act. There is a defence. The issues have been made clear and understood. But it is important to have the flexibility that we have sought to provide in the legislation. While I have listened carefully to the comments of the noble Lords, Lord Hylton and Lord Avery, the Government believe that they have got the balance right in Clause 11.
We do not object to those parts of Clause 12(2) which make it an offence to arrange a meeting to support or further the activities of a proscribed organisation. However, we object to Clause 12(2)(c). Amendment No. 36 raises a similar point in respect of Clause 12(3) under which a person commits an offence if he addresses a meeting which he knows is to be addressed by a member of a proscribed organisation. Therefore, a person who speaks at a meeting in order to denounce the proscribed organisation is still guilty of an offence. We do not regard Clause 12 as acceptable as it stands.
Lord Hylton: I support the pair of amendments to which the noble Lord has spoken. The amendments do something to reduce the over-wide drafting of the Bill as it stands. The kinds of people who could be caught by the Bill as it stands would include those who went to a meeting specifically to condemn violence or criminal activity, or simply to put the other side of an argument. The provision is also likely to catch negotiators, mediators and go-betweens of one kind or another who probably genuinely seek to resolve a conflict or defuse a situation. I hope that the Government will consider this matter very fully.
Lord Lester of Herne Hill: I have added my name to my noble friend's amendment. The most serious concern of Justice, of whose council and executive I declare an interest as a member, is that the restrictions placed on free speech and freedom of assembly by Clause 12 violate the human rights standards in the European convention. The reasons have been given by
Various examples can be given and most have already been cited. I add two more for good measure. If General de Chastelain held a press conference with a member of a terrorist organisation to announce a decommissioning initiative he could potentially be breaking the law if the clause as it stands is retained. If a journalist organised an interview with a number of members of a proscribed organisation to inform the public and contribute to the debate, under the Bill he or she could be liable to prosecution. If a victim of terrorist violence addresses a meeting at which he knows members of a terrorist organisation will be present in an attempt to persuade them to abandon violence he also incurs the risk of prosecution under Clause 12.
The Home Secretary insisted in another place that Clause 12 would be applied selectively and with discretion by the Director of Public Prosecutions, but nothing in the Bill imposes any limitation. One of the problems of Clause 12, which that does not deal with, is that it has an inevitable chilling effect. Whatever may be the policy of the DPP, the threat of prosecution and the substantial penalty under Clause 12 could hinder effective democratic debate and interfere with the freedom of expression and assembly rights of a wide range of individuals. That plays into the hands of terrorism and violates elementary principles of the rule of law and the effective protection of human rights.
Lord Avebury: These provisions could affect the work of reputable organisations in the United Kingdom which are concerned with conflict resolution. I shall refer to just two of them. International Alert and Conciliation Resources are concerned with trying to solve the conflicts in other parts of the world. In order to do so, they invite and hold discussions with protagonists in their offices. In the past I have been present at some of those discussions.
Let us suppose that one is interested in the problems of Sudan where civil war has been raging for years. One invites members of the Sudan People's Liberation Army to a meeting in London for the purposes of ascertaining whether there are any grounds on which progress can be made with the Government's ideas on devolution and federalism. If the SPLA was an organisation proscribed under the Bill, those activities would become illegal.
We should do well not to focus as narrowly as we have done on the Irish dimension. We have to envisage a situation in which a number of organisations, engaged in armed opposition to their own governments, are proscribed. I sought earlier to elicit
However, let us suppose that we have a different list. The noble Lord seemed to indicate that we would not be too bothered about whether or not the Americans deemed an organisation to be terrorist. The problem then is that an organisation may be terrorist in one country but not another. That does not seem in conformity with the efforts made over the past years to gain concerted international action to deal with terrorism wherever it occurs.
In one way or another, we are in difficulties. Those difficulties arise mainly from the fact that we do not know how the powers will be used. The Government appear unwilling to tell us the extent to which they will go in banning organisations which have operated lawfully for many years in the United Kingdom. I wish the Government would go a little further in what they are prepared to say. Otherwise the Committee is in some difficulty.
Lord Bassam of Brighton: I have listened to the points raised by Members of the Committee. As I understand the argument, if we did not accept the amendments we would somehow end up locking up General de Chastelain and the noble Lord, Lord Alderdice. We would interfere with well respected organisations such as International Alert which seek to resolve conflict. We would be exercising heavy and draconian powers if such absurd situations were in some way to come to light.
The noble Lord, Lord Lester, put his finger on the point. He referred back to the words of my right honourable friend the Home Secretary. Of course, the Director of Public Prosecutions will exercise carefully and sensitively his discretion on how this part of the legislation will operate. But if we accepted the amendments it would delete a potentially serious offence of arranging or managing, or assisting in arranging or managing, a meeting by a person who knows that the meeting is to be addressed,
I am confident that noble Lords, in particular those on the Liberal Democrat Benches, do not wish to do that. I believe that they make the clause more draconian than it is. We cannot tell how the provision will work until it is used but I am confident that it will be used sparingly. I am well aware of the arguments raised by Justice: that the clause should be remodelled
In another place we undertook to consider the "addressing" issue. We sought to find some way to construe the term to cover mere speaking. We have considered the point carefully. Clause 12(4) makes it clear that meetings may be private or public and may involve three or more people. So "sharing a platform"--it is one of the terms suggested--could give the wrong flavour.
We have a difficult balance to strike. We have perhaps been cautious in the exercise of the powers contained in the clause. But we believe that we have got the balance right. But where a prosecution is brought under Clause 12, it will be open to any accused to raise any convention rights in his defence under Section 7(1)(b) of the Human Rights Act 1998 which will have come fully into force.
I doubt whether the noble Lords who tabled the amendments will be persuaded by what I have said. However, in giving the issue their careful consideration, they perhaps seek to view the clauses in their worst light. I am confident that the clauses will not be interpreted and used in the way suggested. We must ensure that we get matters right in the provisions dealing with proscribed organisations.