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Baroness Park of Monmouth: My Lords, can the Minister tell the House what mandate is to be given to the UN troops whose numbers are now to be greatly increased? When they went to Sierra Leone it was intended that they should collect arms from what was believed to be a group that had agreed to give them up. They found themselves confronted by a war and people who, thanks to the Lome Agreement, now possess the diamond fields. Is anything being done by HMG to get the Security Council to change the UN mandate to the waging of war in order to restore the situation, regain the diamond fields and give the people of Sierra Leone some prospect of surviving? If we merely let the UN troops go there, do nothing and eventually withdraw, so that they are discredited not only in that country but in the rest of Africa, it will all have been for nothing. What is being done to change the UN's mandate so that the people of Sierra Leone may regain the country which they lost thanks to the Lome Agreement?

Lord Burlison: My Lords, I assure the noble Baroness that the mandate of the United Nations remains the same. If it is necessary to respond in the way suggested by the noble Baroness I am sure that that will be taken on board. If it is necessary to make an approach along those lines, that will be the course of action which develops in future.

Lord Shepherd: My Lords, in the few seconds that remain perhaps I may be allowed to make an observation. I understand that the purpose of these proceedings is to put questions on the Statement. I believe that noble Lords have gone very much further than that in their questions to the Minister, who obviously has not come prepared to deal with such a wide range of issues on matters which do not relate to the Statement. Perhaps I may suggest to the Front Bench that this is a matter that should be considered by the Procedure Committee.

Terrorism Bill

5.27 p.m.

House again in Committee.

Schedule 5 [Terrorist Investigations]:

Lord Bach moved Amendment No. 59:

The noble Lord said: The Committee turns now to eight government amendments which relate to Schedule 5. All of the amendments are minor drafting amendments to Part II of the schedule and apply only

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to Scotland. Amendment No. 59 corrects an unintended reference to the procurator fiscal in paragraph 22(5). The reference should be to the sheriff. The other amendments ensure consistency in drafting between Part I relating to England, Wales and Northern Ireland and Part II relating to Scotland. I beg to move.

On Question, amendment agreed to.

Lord Bach moved Amendments Nos. 60 to 66:

    Page 99, line 47, leave out ("discharge") and insert ("recall").

    Page 101, line 19, leave out from ("that") to ("immediate").

    Page 101, line 21, leave out ("possible") and insert ("is reasonably practicable").

    Page 101, line 28, leave out ("without reasonable excuse").

    Page 101, line 29, at end insert--

("( ) It is a defence for a person charged with an offence under sub-paragraph (3) to show that he had a reasonable excuse for his failure.").
Page 101, line 42, leave out ("or 32 or").

    Page 101, line 42, at end insert ("or a notice under paragraph 32").

The noble Lord said: I beg to move Amendments Nos. 60 to 66 en bloc.

On Question, amendments agreed to.

Schedule 5, as amended, agreed to.

Clause 38 agreed to.

Schedule 6 [Further appeal]:

Lord Bach moved Amendment No. 67:

    Page 102, line 19, after ("liable") insert ("on summary conviction").

The noble Lord said: In moving the amendment, I speak also to Amendment No. 68. They are minor and technical drafting corrections suggested by parliamentary counsel. Amendment No. 67 uses the standard language where the offence is a summary one. The second amendment removes a word which has somehow slipped into the text. They do not change the effect of provisions in any way. I beg to move.

On Question, amendment agreed to.

Lord Bach moved Amendment No. 68:

    Page 103, line 7, leave out ("person").

On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Clause 39 agreed to.

Clause 40 [Terrorist: interpretation]:

Lord Lloyd of Berwick moved Amendment No. 68A:

    Page 18, line 41, leave out paragraph (b).

The noble and learned Lord said: The amendment makes sense only if it is taken with Amendment No. 142A. The later amendment solves the difficulty which I have with Clause 40 as drafted.

Clause 41(1) creates a new statutory power of arrest without warrant. There would be nothing wrong with that if, under Clause 41(1), being a terrorist were itself an offence. It would then follow the ordinary law under Section 24 of the Police and Criminal Evidence

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Act under which the police can always arrest without warrant when they have reasonable suspicion that an arrestable offence has been committed. The trouble is that being a terrorist is not an offence. It is an offence so far as it is covered by Clause 40(1)(a), and if the definition of "terrorist" had stopped there there would have been no problem. But the definition does not stop there. It continues in Clause 40(1)(b), and it is the combination of the power of arrest in Clause 40(1) with the wide words of Clause 40(1)(b) that I have great difficulty in accepting. Being concerned,

    "in the commission, preparation or instigation of acts of terrorism",

is not itself an offence.

The wide power of arrest to which I have referred is far wider than anything that would be permissible under the Police and Criminal Evidence Act, but that is only the start of the problem. The much greater problem is that it is also inconsistent with what is permissible under the Human Rights Act.

Article 5(1)(c) of the human rights convention allows a person to be arrested for the purpose of being brought before a court on reasonable suspicion of having committed an offence. It is thus very similar to the ordinary English law, and that is perhaps not surprising because the convention itself is, as I suspect we all know, based on English common law. However, the convention is clear. It allows an arrest where a person has committed an offence. It does not permit the power of arrest on reasonable suspicion that a person is concerned in acts of terrorism in general. You must be able to point to a specific offence which he has committed.

The position will become even clearer, and the problem even more difficult, when the Human Rights Act becomes part of English domestic law. In English law, when you arrest a person you must inform him of the offence of which you suspect him. How could that happen in the case of a person arrested under Clause 40(1)(b) when it does not itself create an offence? The answer is that the police officer in those circumstances could not inform the person arrested of what offence he was suspected.

So what will happen when the Human Rights Act becomes part of English domestic law? Let us suppose that one has a person who is arrested. He has committed no offence under Clause 40(1)(a) but is suspected of being a terrorist in general under Clause 40(1)(b). Let us suppose that he challenges the validity of his arrest, as he almost certainly would. The case will then come before the courts, and very probably end up before this House in its judicial capacity. Putting it at its very lowest, there must be a grave doubt whether the validity of his arrest would be upheld. There would then be a declaration of incompatibility under the Human Rights Act and Clause 40 would come back again before this House in its legislative capacity in order to make it compatible with the Human Rights Act by amendment--perhaps the omission of Clause 40(1)(b) as it stands. Surely it makes sense to get it right now rather than to leave it until that point has been decided by the courts.

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When I mentioned this difficulty at Second Reading, the Minister referred in his reply to a case called United Kingdom v. Brogan which came before the Court of Human Rights. However, the case did not decide what I think the Minister believes that it decides. The whole point of that case was that the applicants there were suspected of being members of a proscribed organisation, which is a specific offence, and suspected of various other specific offences. They were not suspected of being involved generally in acts of terrorism, as the Government were at great pains to point out. It was not on that ground that the European court decided at that point in favour of the United Kingdom. Perhaps I may read briefly from the judgment since the case was referred to by the Minister at Second Reading. At page 130 it states:

    "In this connection, the government pointed out that the applicants were not in fact suspected of involvement in terrorism in general, but of membership of a proscribed organisation and involvement in specific acts of terrorism, each of which constituted an offence under the law of Northern Ireland and each of which was expressly put to the applicants during the course of their interviews following their arrests".

Therefore, if the Government still rely on United Kingdom v. Brogan in support of that defence of Clause 40 as it currently stands, I suggest that they are on very weak ground.

What is to be done? I suggest that things cannot stay as they are; at the very least, it would not be wise to leave them as they are. There is an obvious solution at hand. It is to make Clause 40(1)(b) into a specific offence under the Bill. If that were done, all the difficulties would disappear and the power of arrest under Clause 41 could no longer be challenged.

That is the purpose of my second amendment, Amendment No. 142A. It might seem far reaching but it is not. It was first proposed as an offence long ago by a committee under Lord Gardiner. I adopted the proposal in my report and repeated my views in commenting on the Government's consultation paper on the Bill. However, they simply answered that in their view the creation of the new offence was not the way ahead. I ask why not. What is wrong with the proposed new offence? It follows conveniently after Clause 56, which makes it an offence for a person to direct the activities of an organisation which is concerned in the commission of acts of terrorism. If the director can be liable, why should the member of the organisation not be liable? Why should the individual not be liable even if he is not a member of an organisation?

Clause 57 provides the offence of possession for terrorist purposes. It makes it an offence if a person,

    "possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of acts of terrorism".

Why should the possession of an article make all the difference? Let us suppose that there was convincing evidence from, say, an informer that a person was instigating or preparing to commit an act of terrorism at a certain place and on a certain date. Surely it would

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make sense that that person should be arrested before rather than after the bomb goes off. Why should the instigation and preparation not itself be an offence? Why should it be an offence only if the instigator is himself in possession of the bomb, which he almost certainly would not be? It does not make sense. If a new offence were inserted between Clauses 56 and 57, it would be added to the list of offences in Clause 40(1)(a) and Clause 40(1)(b) could be omitted without loss.

In summary, I suggest that the new offence is highly desirable in itself and at one stroke it would solve the difficulty under Clauses 40 and 41. Apart from the definition of terrorism in Clause 1, to which I hope we shall be able to return on Report and reach an agreed solution, I am more concerned about Clauses 40 and 41 than any other provisions in the Bill. I beg to move.

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