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Lord Glentoran: My Lords, I thank the Minister for his detailed explanation. I have also heard what noble Lords from the Liberal Democrat Benches have said. In the world in which we are now living, I feel that we can all trust our Home Secretaries of the day, from whatever party, to do what is right so far as terrorism is concerned. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 5 [Deproscription: appeal]:

Lord Goodhart moved Amendment No. 7:

    Page 2, line 39, at end insert--

("( ) Where an order has been made under section 3(3)(a), the organisation, or any person affected by the organisation's proscription, may appeal to the Commission.").

The noble Lord said: My Lords, in moving this amendment, I also speak to Amendments Nos. 7 to 10 and Amendment No. 31, which is consequential.

The purpose of this group of amendments is to provide for the possibility of an appeal against the making of a proscription order. As the Bill now stands, an organisation which believes that it has been wrongly proscribed has to go through a wholly artificial process of applying for a deproscription order. If that order is refused, it can go through the appeal process to the proscribed organisation's appeal committee and, on a question of law, can to go a higher court, and indeed ultimately to the House of Lords.

As the Bill now stands, if the appeal succeeds and as a result the organisation is deproscribed, any conviction for membership of that organisation and any forfeiture order made before the date on which the Secretary of State refused to deproscribe stands. So indeed does a conviction or order made where the urgency procedure under Clause 122(5) is used but the order lapses because it is not approved by both Houses of Parliament within 40 days.

This creates a wholly irrational and improper legal situation. It means that even if, on the appeal against the Secretary of State's deproscription order, the appeal committee decides that the organisation ought never to have been proscribed in the first place, a conviction or forfeiture order made as a result of the proscription order would still remain valid.

I introduced an amendment on the same subject at Committee stage which would have deferred the coming into force of the proscription order. I accept that that is not the best way of dealing with it. There may well be cases in which a proscription order should come into effect immediately. If that is not done, there is every likelihood of property disappearing before anyone can lay their hands on it, and there may be very considerable delays if the organisation fully exploits the possibility of delaying the procedure for appeals.

The present amendment does not suspend the operation of the proscription order. However, it does provide for an appeal. As a consequence, if the appeal is allowed, or if the order falls because the urgency procedure has been used and the order is not approved within 40 days, the conviction or forfeiture order made in reliance on that proscription order is automatically quashed and ceases to have effect.

It is surely absurd that a conviction or forfeiture order would be allowed to stand even though the proscription order has been made unreasonably or on the wrong legal basis. Further, the absence of any appeal provision for proscription orders is plainly in breach of natural justice. An organisation is being criminalised without being allowed to be heard in its own defence. I suggest that the fact that this artificial procedure of applying for a deproscription order is

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possible is no defence to the original breach of the right to natural justice. If an order is allowed to come into force before there is a decision on appeal, I see no reason for the Government to object to conferring a right of appeal against the original proscription order and many reasons why they should allow it. I beg to move.

Lord Lester of Herne Hill: My Lords, my name has been attached to these amendments and, therefore, I should like to add a few words to what my noble friend has said on the question of legislative method. When the Human Rights Act comes into force on 2nd October of this year, all existing and future legislation, including this Bill, must, as far as is possible, be read and given effect to in accordance with the rights contained in the European Convention on Human Rights.

I should declare a professional interest here. As I am still in practice at the Bar, I suppose that I shall earn money arguing cases under the Human Rights Act. However, if it is possible to persuade the Government to make it fit on the face of the Bill, I should be happy not to earn my living by making this Act fit with convention rights. It seems to me to be in the interests of legal certainty and proportionality, if not in the interests of the legal profession, for us to get the Bill right at this stage.

My noble friend Lord Goodhart referred to natural justice, which is embodied in Article 6 of the European Convention on Human Rights. Thus there is European natural justice, as well as good old English natural justice. I believe it to be desirable to introduce a right of appeal for all the reasons given by my noble friend but, additionally, so as to avoid unnecessary conflict with convention rights. The last thing I should like to see is a court having to grant a declaration of incompatibility under Section 4 of the Human Rights Act because it was found impossible to read and give effect to Clause 5 in accordance with convention rights. I very much hope that those considerations will be taken into account, as well as those outlined by my noble friend Lord Goodhart.

Lord Cope of Berkeley: My Lords, it is most generous but characteristic of the noble Lord, Lord Lester, to give up the opportunity of earning legal fees by pointing out that such a problem might arise and might ultimately come before the courts. I have some sympathy with the case put forward by the noble Lord and his noble friend. If these appeals are likely to arise in any event through an attempt to be deproscribed--presumably that can start immediately after the organisation concerned has been proscribed--it might be wise to provide for an appeal procedure in the first place.

However, my caution in this respect arises from the fact that I do not wish to see a situation where some causes which in many cases are deeply offensive to people in this country give rise to a proscription being introduced in respect of a terrorist organisation. That, in turn, could be used as an excuse for an appeal

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hearing in which the terrorists or their representatives from overseas argue their case in this country in an attempt to justify their actions and thereby gain support. The Secretary of State and the Government could be placed in an awkward situation if we moved forward in the way suggested. But perhaps it is inevitable, given the appeal against a deproscription refusal and the background of the human rights legislation to which the noble Lord drew our attention. It is a dilemma.

4.15 p.m.

Lord Falconer of Thoroton: My Lords, since our discussions on this part of the Bill in Committee, the Government have reflected further on the whole area of proscription. We have concluded that the Bill is right as it stands. I am happy to explain why this is the case, but I should say at the outset of my remarks that we remain unable to accept these amendments. There are two key proposals in these amendments: first, that the Bill should allow for a straight appeal against proscription, as opposed to an appeal against a refusal to deproscribe; and, secondly, that a safeguard should be built in against the abuse of the urgency procedure.

Perhaps I may begin with the issue of appeal against proscription. As my noble friend Lord Bassam said in Committee, the system in the Bill has the advantage that, on receiving an application to deproscribe, the Secretary of State may choose to do so. That would avoid the need for a costly and perhaps lengthy appeal hearing. In explaining how we have arrived at the application, refusal, appeal process, I must emphasise that we are not starting from a blank sheet of paper. In Schedule 2 we have a list of organisations that are already proscribed and in some cases have been proscribed for many years.

However, let us suppose that one of those organisations--perhaps rightly proscribed in the mid-1970s--were to turn away from terrorism at some point in the future. It could happen. In such a case, as my noble friend Lord Bassam said in Committee, an appeal against proscription would not produce the right result because the decision to proscribe was right at the time that it was made. The advantage of the system in the Bill is that the application requires the Secretary of State to make a fresh decision based on the up-to-date situation. It is his assessment at that point in time that is to be reviewed by the commission if the Secretary of State decides to refuse the application.

In recognition of that line of argument, the noble Lord, Lord Goodhart, said in Committee that there might be a time limit of between 14 and 28 days from the initial proscription during which the relevant organisation could appeal. That would not be helpful to any organisation which was concerned in terrorism when it was proscribed but which, more than a month later, changed its spots. In particular, it would not work at all for any of the organisations already listed in Schedule 2. Therefore, for those two categories we would have to retain the system of application, refusal and appeal against refusal for them. That would mean ending up with two parallel systems. As has been

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observed, the drafting of one system is already complex. Therefore, the drafting of two systems would greatly multiply those complexities. More importantly, as the additional system would work only for newly-proscribed groups, we would not be treating in the same way those organisations already included in Schedule 2 and those to be added to it at a later date. We see it as important that all organisations should be treated in the same way under the Bill.

I have mentioned two practical reasons why we do not favour an appeal against proscription. We need to be able to deal with organisations that change their spots, so we need the application/refusal regime; and we need to treat all organisations in the same way, whether they are already listed in the schedule or are newly proscribed under the Bill. All groups should have the same avenues of appeal open to them. However, we reject the noble Lord's proposals, above all, because we believe them to be unnecessary.

A power to proscribe organisations has been on the statute book in its present form for over 25 years. The Bill adds the important safeguard of the application, refusal, appeal mechanism. Any organisation in Schedule 2 can apply for deproscription at any time and can, under the system in the Bill, ultimately be deproscribed. That in itself is an effective remedy as far as the organisation is concerned.

Of course there are further spin-offs of a proscribed organisations appeal commission (POAC) decision in an organisation's favour. Clauses 7, 8 and 29, together with paragraphs 10, 24 and 40 of Schedule 4, make provision for the consequences of a finding that the Secretary of State's refusal to deproscribe was unlawful. Such a finding means that on the date of that refusal the organisation should not have remained proscribed. It does not say anything about the lawfulness or otherwise of the original proscription of the organisation, or about the standing of the organisation before the refusal to deproscribe. Clause 7 therefore provides only that convictions relating to activity on or after the date of the refusal can be overturned.

But the purpose of Clause 7 is not to signal that if you, as an individual, believe that your organisation should not be proscribed, you may carry on participating in the organisation's activities, in the hope of eventually getting the benefit of Clause 7. On the contrary, if an order proscribing the organisation has been made, the organisation is proscribed. You should dissociate yourself from the organisation, irrespective of the progress of any application or appeal.

For these reasons, we see no need to provide for an appeal against proscription. The system of application, refusal and appeal treats all terrorist organisations the same: those that are already proscribed and any that may be proscribed in future. It is there to give organisations an effective remedy. It is not there to excuse those who choose to break the law.

Perhaps I may turn now to the urgency procedure. I must first emphasise that this procedure is a necessary feature of the regime. Most of the entries which have

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been added to the list in recent times have been added using it. When a bomb goes off and is claimed by an organisation, an immediate proscription using the urgency procedure order immediately gives the police a valuable tool in pursuing the perpetrators and bringing them to justice. It is also an important way for the Secretary of State to express, in a very tangible way, society's abhorrence for that organisation's methods of pursuing its objectives (although the objectives themselves may be perfectly legitimate, of course).

The noble Lord, Lord Avebury, suggested in Committee that the urgency procedure could lead to injustice because it would be possible to proscribe an organisation at five minutes' notice without the knowledge of the members of that organisation. This is a misunderstanding of the position.

As your Lordships know, it is a general legal principle that, although ignorance of the law is not a defence, the law should be available to the citizen. So it would be quite wrong to make an order at 10 a.m. coming into force at 10.5 a.m. The right thing to do would be to provide for the order to come into force the next day. This will give time for the Government to publicise the proscription (which after all, is part of the reason for having the power) and to allow people to dissociate themselves from the organisation or to cease to participate in its activities.

This has been the procedure in the past and I can assure your Lordships that this Government will continue to follow this approach in future. There is no question of using the power to "round up" people on the basis that they did not know that the organisation was proscribed. To return to a suggestion that was made in Committee, I do not therefore see any need to add the word "knowingly" to the membership offence.

Subsection (5A) in Amendment No. 10 proposes that convictions should be annulled if an organisation is proscribed by the urgency procedure but Parliament withholds its consent--a point which was raised by the noble Lord, Lord Avebury, in Committee. We have considered this matter carefully and we do not agree that such provision should be made.

Once the Secretary of State has proscribed an organisation, membership of the organisation, fundraising for the organisation, and so on become criminal offences. Whatever happens when Parliament debates the order, for those 40 days that is the law, and we expect people to obey it. Every individual has choices to make. In the circumstances we are discussing, a member of the organisation has to decide whether to break the law or observe it. We do not think that it is too much to expect of an individual that he observe the law during those 40 parliamentary sitting days.

It is true that if the organisation is removed from Schedule 2 by virtue of Clause 123(5)(b), a convicted person will not get the benefit of Clause 7. So a person cannot go on participating in the organisation's activities in the hope of appealing successfully and ultimately getting the benefit of Clause 7. But it is right that this should be the case.

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When the urgency procedure is used, it is right that Parliament should have the option of withholding its consent so that the order falls. From the point of view of the organisation that must be an acceptable outcome.

But Parliament can and must be able to withhold its consent for any number of reasons. It follows that a failure of Parliament to endorse a proscription order is not the equivalent of a POAC ruling in the organisation's favour. In particular, it does not necessarily mean that at any time the organisation should not have been proscribed. From the point of view of the individual convicted of a proscription offence, therefore, the analogy with the POAC process breaks down.

In the POAC scenario there is a finding that the refusal to deproscribe was flawed. In the urgency scenario there is no comparable finding. In both cases we consider that the individual has chosen to break the law, but we recognise that where POAC has made a favourable determination, convictions should not necessarily stand.

It has been suggested that this power could be abused. It is a very heavy power. We have acknowledged this repeatedly and we make no apology for it. But for the reasons I have given, we believe that the urgency procedure, in the form proposed in the Bill, is necessary. We believe that the safeguards we have provided are correct and sufficient; and so, through the Bill, we are asking Parliament to trust the Secretary of State with this powerful tool in the fight against terrorism.

The Bill before your Lordships this afternoon is an important Bill and proscription is an important power. The amendments which have been tabled have probed the workings of this power in detail, and have caused us to think long and hard about whether we have the detail right. The Government believe that the drafting of these powers and procedures is right. I apologise for the length of my reply but the issues raised by the noble Lord, Lord Goodhart, are important. In the light of the explanations I have given, I sincerely hope that those noble Lords who have tabled amendments will agree to withdraw them.

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