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Lord Goodhart: I accept that in all probability the Director of Public Prosecutions would exercise his discretion in such a way as to prevent anyone who acts broadly in the public interest in meeting with members of a terrorist organisation from being prosecuted under Clause 12. However, no one who does that in the public interest should be forced to rely on the exercise of a discretion. The fact that someone is placed potentially in the position of having to rely on the DPP's discretion in order to avoid a prosecution shows fairly clearly, I believe, that there is something wrong with Clause 12.

We shall not press the amendment to a vote on this occasion, but I believe that it is almost certainly an issue that we shall bring back on Report. I hope that on that occasion the Minister will be able to enlarge on why he believes that, as it now stands, it is compliant with the convention rights under the Human Rights Act. However, for the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 not moved.]

Clause 12 agreed to.

Clause 13 [Uniform]:

Lord Skelmersdale moved Amendment No. 37:

Page 7, line 29, leave out subsection (2).

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The noble Lord said: I tabled this amendment in order to ask a question to which I suspect I should know the answer and it should not take very long. Clause 13(2) states:

"A constable in Scotland may arrest a person without a warrant ..."

Why only in Scotland, or is it automatically a police power in England? I beg to move.

Lord Bach: The purpose of subsection (2) is to give a constable in Scotland power to arrest without a warrant where he suspects that a person is guilty of an offence under Clause 13(1). This is not a novel provision for Scotland. It simply repeats subsection (2) of Section 3 of the Prevention of Terrorism (Temporary Provisions) Act 1989 and, before that, comparable provisions in earlier prevention of terrorism Acts.

Express provision is required for Scotland since, at common law, the power of a constable to arrest without a warrant for statutory offences is not clear. We believe that subsection (2) provides the necessary clarity. This can be compared with the fact that no such provision is required in Clause 13 for England and Wales because, under the general arrest provisions of Section 25 of the Police and Criminal Evidence Act 1984, a constable would have the power to arrest without a warrant. As the noble Lord knows, PACE does not apply to Scotland.

Therefore, subsection (2) is necessary for Scotland in order to put beyond doubt a Scottish constable's powers of arrest and to ensure consistency with the position in England and Wales.

Lord Skelmersdale: I am grateful to the Minister for that answer. As I said, I should have known the answer but did not. However, it raises a more general point upon which I would ask the noble Lord and, indeed, the whole of his department to reflect. Periodically, this provision appears in Bills. Would it not be far more sensible if one changed the whole of Scottish law to take account of that? I do not expect an answer now. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 38:

Page 7, line 32, after ("liable") insert--

("(a) on conviction on indictment, to imprisonment for a term not exceeding one year, or a fine, or both, or
(b)").

The noble Lord said: Clause 13 concerns the wearing of uniform or other articles of clothing, and so on, by terrorists. This is deeply offensive. It takes place sometimes at funerals and sometimes on other occasions. It is particularly offensive to victims of the organisations concerned.

So far as concerns the court case which should follow if someone is accused of the offence, in putting the clause into the Bill the Government have a choice of following either the Prevention of Terrorism Act, which provides only for summary conviction in such cases, or of following the emergency provisions Act,

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which provides that in important and repeated cases the accused can be charged on indictment. It seemed to me that it was at least worth asking why they had followed the PTA instead of the EPA and to suggest that they might like to preserve the stronger penalty in this case, as they have done in several of the preceding clauses which relate to other similar offences. I beg to move.

Lord Avebury: Once again, the noble Lord, Lord Cope, has underlined the point that I have been seeking to make; that is, what was suitable and appropriate in the conditions in Northern Ireland may no longer be so in a Bill that extends the scope of its provisions to a large number of organisations which in future are to be proscribed by the Secretary of State and of which we have no knowledge at the moment.

I accept entirely what the noble Lord, Lord Cope, said about the offensiveness of using symbols and colours in such a way as to insult the victims of terrorism in Northern Ireland. When we consider what happens in the rest of the United Kingdom, what we are saying is that an organisation may be banned here and that from that point onwards a person who wears or displays an article that arouses reasonable suspicion even that he is a member is liable to imprisonment for a term not exceeding six months, which the noble Lord, Lord Cope, wishes to raise to one year.

I mention the PPK at random--it happens to be one of those organisations treated as terrorists by the United States, and I keep referring back to the State Department list because we have no other way of knowing what organisations the Secretary of State may proscribe in the future--and considering the disapproval of the PPK which has been evinced by the Government in the past, it might well be a prime candidate for proscribing. Let us suppose that a person does have an article such as a hold-all which displays the PPK colours and he attends a meeting which discusses Kurdish matters. The police, viewing him at the meeting and deciding that there are circumstances which arouse reasonable suspicion that he is a member or supporter of a proscribed organisation by reason of the fact that he is displaying its colours--even though it might be something he bought in a shop that happens to coincide with the colours of the PPK--put two and two together. They have reasonable suspicion from his display of that article that he is a member of the proscribed organisation. He is committing an offence that could result in his imprisonment for six months or, as the noble Lord, Lord Cope, would have it, a year. I think that what may be appropriate in the circumstances in Northern Ireland is not, from now onwards, going to be appropriate in a situation where a number of organisations, which are deemed to be terrorist from an international point of view, become proscribed by the Secretary of State.

9.15 p.m.

Lord Bach: Proscribed organisations are, to use a cliche, "beyond the pale". They are out of bounds. That is why they have been made proscribed organisations. That is the answer to the point made by

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the noble Lord, Lord Avebury. It does not matter whether they come from Northern Ireland or, in the future, from anywhere else. Of course, if the person involved could be prosecuted on the basis that carrying the article aroused reasonable suspicion that he was a member or supporter of a proscribed organisation, and that person, having been charged and brought before a court and having pleaded guilty or having been found guilty, then argued that he did not realise it, it is very unlikely, it seems to me, if the court accepted the explanation, that the person would go anywhere near a prison. One has to remember that what we are talking about in this amendment is the maximum sentence and not the minimum sentence because any sentence is at large less than the maximum for an offence like this.

I turn to the amendment we are discussing. I agree with the noble Lord, Lord Cope, that this clause replicates an offence which appears in the two Acts about which we have talked so much, the prevention of terrorism Act and the emergency provisions Act. The prevention of terrorism Act version of the offence, which has effect in Great Britain, is a summary-only offence with the maximum six months imprisonment. The emergency provisions Act version, which has effect in Northern Ireland, is an either-way offence with maximum penalty on indictment of a year's imprisonment.

In consolidating our anti-terrorist legislation, the Government clearly had to address the issue that an identical offence had a different maximum penalty under different legislation. Were we to go up or down? Everyone agrees that the wearing of such garments or wearing, carrying or displaying such an article is deeply offensive and, at its worst, calls for a custodial sentence. No one in your Lordships' House, I believe, has argued against that.

But I need to point out that this offence has been used only rarely in recent years. Records suggest that there have been only two prosecutions in Northern Ireland since 1991, both of which led to convictions, and there have been no prosecutions in Great Britain for the same period. That is not to suggest that the offence is not important. There are indications that its very existence has a deterrent effect. We believe it is right that those who wear clothing or insignia linked directly to a proscribed group should remain liable to prosecution.

But given the infrequent use of the offence, it would be difficult to argue that there is a strong case for setting the penalty at a higher level. There is certainly no suggestion that a lower penalty level has been an insufficient deterrent. I remind the Committee that that applies to Great Britain where there have been no prosecutions. That would usually be the reason to increase a penalty; that it had a greater deterrent effect.

We are not persuaded that the higher penalty is required. The arguments are nicely balanced. We do not say that it was an easy decision to reach. But we believe that we made the right decision and that six months is appropriate as a maximum for this unpleasant offence.

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Having heard our reasons, I hope that the noble Lord will consider what we have said and will withdraw the amendment.

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