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Lord Hylton: I hope that I have followed the logic of my noble and learned friend in his three amendments. However, I notice that he has not tabled an amendment to delete Clause 41(1). Is he therefore happy that it should remain in the Bill?

Lord Lloyd of Berwick: No, I certainly do not wish Clause 41(1) to be deleted. It creates the power of arrest, which is essential. The problem is that that is fine so far as it relates to Clause 40(1)(a) but it is very far from fine so far as it relates to Clause 40(1)(b).

5.45 p.m.

Lord Avebury: I rise to speak to my Amendment No. 68BA. Having listened carefully to the noble and learned Lord, I am no wiser than he is about why the Government did not accept the recommendation in his report to create a specific offence of being concerned in the commission, preparation or instigation of acts of terrorism.

If I may venture to speculate, the ambiguity lies in the phrase "being concerned in". If one created an offence of committing, preparing or instigating acts of terrorism, those would be substantive acts. However, I am not sure that the courts would find it easy to interpret "to be concerned in" an act. Perhaps the phrase "being concerned in" occurs in the PTA and elsewhere and does not cause that difficulty. As the noble and learned Lord was speaking, I was struck by the thought that that may have been the reason why the Government were hesitant in accepting the recommendation in his report.

However, he has put his finger on the mischief that is caught by the combined offence under Clauses 40(1)(b) and 41(1). I have approached that from a different angle; that of amending Clause 41(1). I have removed the words "be a terrorist" and inserted:

That would still mean that a person who is concerned in the commission, preparation and instigation of acts of terrorism would not be liable to arrest without a warrant, but the noble and learned Lord believes that

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he should be. However, if the two provisions remain as they stand, it would be a contravention of Article 5.1(c) of the ECHR.

Again, I ask the Minister to explain to the Committee how he can possibly have concluded that the provision is compatible with the Human Rights Act. It passes my comprehension. The particular article in the convention permits arrest to bring a person before a competent legal authority, first, on the grounds of reasonable suspicion of having committed an offence; secondly, as a necessary measure to prevent the person from committing an offence; and, thirdly, in order to prevent a person from fleeing, having already committed an offence. The second ground--that is, to prevent a person from committing an offence--has been interpreted by the European Court as meaning that the anticipated offence must be a concrete and specific act. That was in the case of Guzzardi v. Italy.

Therefore, I agree with the noble and learned Lord that together the clauses as they now stand contravene Article 5.1(c) and also possibly Article 5.2, which requires anyone who is arrested to be informed of the reasons for his arrest. I hope that the noble Lord will listen to the advice that he has been offered by the noble and learned Lord, Lord Lloyd, with the wide experience and background that he has in these matters. We cannot allow the wording of these two clauses to remain unaltered. I hope that when the Minister comes to reply he will assure the Committee that something will be done by the Government before we reach Report stage so that we do not have to return to the matter again.

Lord Cope of Berkeley: First, for the record I make an extremely small point. I believe that there is a misprint on the Marshalled List, which states "leave out paragraph (6)". It should, of course, read "leave out paragraph (b)".

I find the noble and learned Lord's formulation of what we are trying to achieve much more satisfactory than the terms of the Bill. I do not believe that there is a great deal of difference in what the Government and the noble and learned Lord and others are trying to achieve. The question is how to achieve it through the most satisfactory wording.

However, this matter concerns more than simply a drafting point. If the noble and learned Lord is correct, as I believe he is from my knowledge, which is so much less than his, that the European Convention on Human Rights, and particularly the writing of it into our own domestic law, will upset this provision and make it inoperable, that, of course, is a serious matter. We all want it to be possible to arrest terrorists and for powers to be used in a preventive capacity in order to avoid the bomb going off, and so on. We all want that. The question is how to achieve it and make it stick if it comes to a court case.

One of the features of virtually all terrorist offences is that they require a great deal of elaborate preparation. They involve many people. They often involve passing a gun, both before and after its use,

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between various carriers so as to avoid detection and to avoid the person who does the shooting being caught with the weapon. The events which surround the commission of a murder or the letting off of a bomb are as much terrorist offences and as essential to the satisfactory execution of the offence as the actual firing of the gun. That is why it is important to catch and to be able to convict the other people who are involved.

It is said that this produces an extension of the offences under the Act. It does, but it is a very small extension given, as the noble and learned Lord pointed out, that membership of a proscribed organisation, direction and other things akin to it are already offences. The extension proposed in Amendment No. 142A is very small but I believe valuable.

I wish to make one or two small points. Clause 42(1), which deals with the search of premises, depends on Clause 40(1)(b)--the paragraph that the amendment seeks to delete--and clearly would need to be modified. I do not believe that,

    "a person falling within section 40(1)(b)",

is very happy wording. However, we are not concerned with its happiness or otherwise; we are concerned with the fact that that wording needs to be modified as well.

Another point that I wish to make is that, rather curiously, none of this applies to the offences set out in Clause 13. All the other relevant clauses seem to be listed, but Clause 13, which concerns the wearing of a terrorist uniform, is omitted. However, there is a specific provision in Clause 13 for arrest in Scotland in that connection. But that seemed to me to be odd.

So far as concerns the point made by the noble Lord, Lord Avebury, about the words "concerned in", as those words occur in both the Government's draft in the Bill and in the noble and learned Lord's amendment, I am prepared to accept them as being necessary in order to catch the people who are peripheral to the key offence, be it murder or whatever. Therefore, I support the amendments.

Lord Goodhart: The noble and learned Lord, Lord Lloyd, has put his finger on what he has shown beyond doubt to be a serious defect in the drafting of Clauses 40 and 41. It is more than a pure technical defect and will require a rethinking of the operation of those clauses. I believe that the solution that he has found certainly goes a long way to dealing with the problem. Unlike the noble Lord, Lord Cope, I have a certain concern about the use of the word "concerned". I believe it is arguable that that is rather too broad and general a word, and I should be interested to hear what the noble and learned Lord has to say when he winds up this debate.

Therefore, I am inclined to prefer a solution more on the lines, if perhaps not in the identical words, of that put forward by my noble friend Lord Avebury to make it clear that a specific offence must have been committed or is about to be committed by the person who is arrested.

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So far as concerns the word "concerned", I believe that my worry has been increased by looking at Clause 3, which refers to the question as to when an organisation is concerned in terrorism. Under Clause 3(5),

    "an organisation is concerned in terrorism if it--

    (a) commits or participates in acts of terrorism,

(b) prepares for terrorism, (c) promotes or encourages terrorism, or (d) is otherwise concerned in terrorism". While paragraph (d) is extremely general, paragraphs (a), (b) and (c) are fairly specific. When creating a new offence, I wonder whether it would not be desirable to be as specific as are paragraphs (a), (b) and (c) of Clause 3(5). Again, that is a point on which I should be interested to hear what the noble and learned Lord has to say. However, I believe that his own amendment, Amendment No. 142A, is perhaps not yet quite tight enough with regard to his definition of what is the requisite degree of involvement in an act of terrorism.

Lord Bassam of Brighton: I am extraordinarily grateful to the noble and learned Lord, Lord Lloyd, for the way in which he has advanced his arguments this evening. I rather felt that we were at a learned disputation on the subject, and I found it very helpful.

The arguments that the noble and learned Lord set out are not entirely new to us. He set them out before in his report on the legislation against terrorism, and he made them very fully in his response to the Government's consultation paper and again with great courtesy at Second Reading of the Bill. I am drawn to conclude that it is rather strange to hear in the year 2000 that a power that has been on the statute book for some 25 years, unchallenged, as it has been, since the Brogan case, suddenly is fatally flawed. However, the noble and learned Lord has advanced a good argument.

The Government have not reached lightly the conclusion that the power is compatible with the convention. We can see serious drawbacks to the amendment of the noble and learned Lord, Lord Lloyd. For that reason, we shall not yield on this issue. One or two noble Lords have drawn attention to some drafting flaws, if nothing more. However, we wish to take up some fundamental issues against this amendment. We have looked very carefully at the points made by the noble and learned Lord, but, as I said on Second Reading, this is an issue on which, with the greatest respect, we have formed a very different view, and I shall set out why.

The Government are not persuaded that it is necessary to create a separate and new offence of terrorism; nor do they believe that that would be entirely desirable.

I deal first with the necessity for the offence. The noble and learned Lord, Lord Lloyd of Berwick, proposes an offence of terrorism primarily, it seems, because of his quite understandable concern that the arrest power under the Bill would not otherwise comply with Article 5(1)(c) of the ECHR, which

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provides that a person's arrest must be effected for the purpose of bringing the person before a competent legal authority on reasonable suspicion of having committed an offence. With the greatest respect, the Government take a different view.

In Brogan v. the United Kingdom in 1988 the Government argued successfully that it was not necessary to have arrested someone under the Prevention of Terrorism Act arrest power in connection with a specific offence in order to be compliant with Article 5(1)(c) of the convention. They argued that the way the arrest power was formulated in terms of being concerned in the commission, preparation or instigation of acts of terrorism should be regarded for convention purposes as a power of arrest for an offence.

The Court accepted that submission, saying that the arrest and subsequent detention of the applicants were based on a reasonable suspicion of an offence within the meaning of Article 5(1)(c).

While the Government recognise that no particular case can settle an ECHR point for all time--that has to be the case--and that the Court underlined that the particular circumstances of the Brogan case influenced the decision it took, the Government continue to be of the view that a terrorist arrest power, without an explicit link to a specific offence, is compatible with the ECHR and Article 5(1)(c) in particular. It was on that basis that the Section 19(1)(a) Human Rights Act certificate was signed.

6 p.m.

Lord Avebury: Would the noble Lord remind the Committee whether the case of Brogan came before or after the case of Guzzardi v. Italy in the European Court and whether or not in the case of Guzzardi, it was ruled that the anticipated offence must be a concrete and specific act?

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