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Lord Bassam of Brighton moved Amendment No. 185:

("(2A) In the cases of--
(a) the first order to be made under paragraph 17(4) of Schedule 7, and
(b) the first order to be made under paragraph 21 of Schedule 8,
the order shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament (and subsection (2)(j) or (l) shall not apply).").

On Question, amendment agreed to.

[Amendment Nos. 186 to 188 not moved.]

Viscount Bridgeman moved Amendment No. 189:

    Page 58, line 19, after ("opinion") insert ("and his reasons for holding that opinion").

The noble Viscount said: This subsection allows the Secretary of State to override Parliament in matters of urgency. The amendment seeks to require him to give the reasons for his opinion when making such an order. I beg to move.

Lord Avebury: The amendments in my name, Amendment Nos. 189A and 189B, are grouped with this amendment. The clause as it stands requires the Secretary of State to get an affirmative resolution from each House of Parliament in order to proscribe an organisation. However, as we discussed at an earlier stage at Clause 122(4), the Secretary of State has the power, if he is of the opinion that it is a matter of urgency, to proscribe an organisation without the approval of Parliament, and that proscription remains in force for a period of 40 days after which, if it has not then received the approval of both Houses of Parliament, it lapses.

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I objected to this on the first day of Committee and I gave the example that the Secretary of State could proscribe an organisation one morning at 10 o'clock and that a person going out and collecting subscriptions on behalf of the organisation at 10.05 would be committing an offence which might land him in prison, even though he had no knowledge that the order had been made. This is fundamentally unjust. Proscription is such a serious measure that it should always be sanctioned by Parliament and we should not extend that power to the Secretary of State the power an organisation at five minutes' notice and without the knowledge of the members of that organisation.

When we were discussing this previously, I do not believe that the Minister gave the Committee much of an indication of how or in what circumstances the urgency power would be used. As far as I am aware, that power that has not been used in Northern Ireland. Perhaps the Minister will explain what circumstances the Government envisage might occur in the Province which justify the use by the Secretary of State of such an extreme power. What is the justification for extending it to the whole of the United Kingdom? Terrorism has flourished in Northern Ireland in the past. There may have been new organisations of an extremely dangerous character springing up which may theoretically have justified the Secretary of State acting urgently in order to prevent those activities from continuing over the next 40 days until an order was made by Parliament. But can we imagine that such a development would occur on the mainland of the United Kingdom? Is it not always within the power of Parliament, if it sees that the circumstances justify it, to make emergency legislation extending the powers that have already been granted to the Secretary of State and to say that it is not enough to have an affirmative resolution and that we must give Ministers this power of urgency which did not exist before?

In the Criminal Justice (Terrorism and Conspiracy) Act which came before your Lordships in the summer of 1998, we went through every stage of the Bill in a single day. So, it is not that Ministers cannot take powers if they really need them to deal with terrorist threats as a matter of extreme urgency. If there is no proper justification for the power, it should not be included in the Bill. I hope that the noble Lord who is to reply will either give us a thorough explanation or say that this will be reconsidered on Report.

Lord Goodhart: Perhaps I may raise another point which arises from these amendments in my noble friend's name. It seems to me that there is a problem as regards what happens if an order is made under the urgency procedure relating to the proscription on an organisation and that order is not then approved within the 40-day period. Clause 122(5)(b) states:

    "an order's ceasing to have effect shall be without prejudice to anything previously done".

I understand why there is that provision. Obviously you do not want people who have taken actions on behalf of the Government in reliance on that order to be subject to prosecution for what was done under an

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order that had legal authority at the time. But it seems to me that there is a particular problem if anybody has been convicted. I think it unlikely, in practical terms, that anybody would be convicted within 40 days, but it is possible. In those circumstances, if Parliament has not seen fit to endorse the order by an affirmative resolution, it would be inappropriate for somebody who has been convicted under that order to have that conviction standing on the record. While this seems to me to be a pretty improbable circumstance, should not there be a provision in the Bill to ensure that, in such circumstances, that conviction does not stand?

Lord Bach: Clause 122(4) provides for an urgency procedure for most of the affirmative powers in the Bill. Amendment No. 189 in the name of the noble Viscount, Lord Bridgeman, would add to this procedure a requirement that an order made in this way should include a declaration of the Secretary of State's reasons for his opinion that the urgency procedure is necessary. Although we recognise that Parliament has a legitimate interest in seeing that such procedures are not misused, we cannot accept the need for, or the value of, this particular amendment.

As the Delegated Powers and Deregulation Committee said in its report on the Bill:

    "The use of emergency or urgency procedures is a well-trawled concept, and Parliament only agrees to these where they are considered strictly necessary. The appropriateness of the use of such powers is no doubt one which the future Human Rights Committee will keep under review".

That is right but it is a much broader issue than we can properly address in the context of this Bill. The noble Viscount's proposal should be considered in that broader context. Meanwhile, of course, I give an assurance that no Secretary of State under the present Government will use the procedure without proper reasons and obviously the same would be true of any other likely government.

I turn to Amendments Nos. 189A and 189B in the name of the noble Lord, Lord Avebury. We are grateful to him for raising the issue of what happens if an organisation is proscribed by an order made under the urgency procedure and Parliament subsequently withholds its consent for the order.

We do not believe that an amendment along these lines is necessary. We can see that the noble Lord's amendments are intended as a safeguard against abuse of the urgency procedure. We believe that we have already provided an important safeguard in the appeals process set out in Part II. Our view currently is that an organisation which believes that it should not be proscribed should rely on that process rather than seeking to use Parliament as a kind of appeal court.

We accept that not for the first time the noble Lords, Lord Avebury and Lord Goodhart, have raised an important and interesting point.

Lord Goodhart: I am grateful to the noble Lord for giving way. We are not suggesting that the organisation will use Parliament. That is a most unlikely scenario. We are suggesting that, for whatever reason, Parliament declines to pass a resolution to

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approve the order. The result of that is that the appeals process never comes into existence so that somebody who has been convicted cannot rely on that process of deproscription and the right to appeal following a deproscription order. There is nothing left to be done. It seems to me that that is a small but not unimportant lacuna in the Bill.

6.15 p.m.

Lord Bach: I have said that noble Lords on the Liberal Democrat Benches have raised an important and interesting point. No doubt we shall consider again on Report the whole area of proscription. Therefore I give an undertaking that we shall think further on this matter before then. I believe that that is really what the noble Lord, Lord Avebury, wanted from me today. We shall come back either with an amendment or with a fuller reassurance as to why such an amendment is not needed.

I was asked whether the urgency procedure has ever been used in Northern Ireland. The answer is that it has. If a new organisation made itself known by means of a terrorist outrage, the public would obviously expect any government to act immediately. The noble Lord used the phrase "proscription at five minutes' notice". That may have been a form of words but it is a misapprehension on his part. "Urgency" is not five minutes' notice. It is well established and already used for the whole of the United Kingdom.

As the Committee will probably be aware, those orders are made to come into force on the following day. That is a detail only but perhaps it is worth putting it on the record.

Lord Cope of Berkeley: The question was raised as to whether a prosecution could reach that point within the 40 days. I am not quite sure whether it is 40 days full stop or 40 sitting days. Clearly, the Summer Recess is relevant to that. There may be times when it is difficult for the Government to act if Parliament is not sitting and not likely to be sitting for some weeks, as occurs during the Summer Recess. It may be necessary to use the power in those circumstances.

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