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Lord Pearson of Rannoch: I am grateful to the Minister. As I said, I should not have troubled the Committee unless I had received legal advice to the effect that what is actually said on the treaty might be what it means. If it is not, and if ratification is necessary before the new Article 24 comes into being, I am relieved. If that happens, it will still leave us with the enormous extension of qualified majority voting that is inherent in new Article 24.

3 Dec 2001 : Column 620

Lord Elton: Before the noble Lord withdraws his amendment, I believe that this is a matter of drafting. But he is right: the strict meaning of the subsection is:

XIn subsection (2) a reference to a provision of the Treaty on European Union includes a reference to that provision as amended by any provision of . . . the Treaty signed at Nice".

The treaty may not be ratified, but it has been signed. I have looked, therefore, for a commencement clause and to see whether there was anything to give force to the Minister's statement—and the supporting statement of the noble Lord, Lord Goodhart—that this provision would not come into effect until the ratification of the treaty. It may be there in the Bill, but I could not find it. Therefore, in logic—the noble Lord, Lord Goodhart, sadly shakes his head. He is a lawyer and these things run in his blood; whereas, for me, they have to be dug out of the vegetable patch, which is a very painful process. What the Bill says is what my noble friend said that it says. No one can contradict that, unless there is anything else in the Bill that says it means something else.

Lord Donaldson of Lymington: I come as a complete outsider to this particular aspect of the Bill, and merely as a somewhat experienced interpreter of statutes. What the Bill says is that subsection (2), which defines Xthe third pillar", includes a reference to the Treaty on European Union,

Xas amended by . . . the Treaty signed at Amsterdam . . . [and] . . . the Treaty signed at Nice".

If the treaty that has only just been signed at Nice has no power to amend—I give way to the noble Lord.

Lord Elton: I humbly accept the point.

Lord Pearson of Rannoch: I am not quite sure where that leaves us, but I am absolutely sure that I should withdraw the amendment. I am grateful for the Committee's patience. When I have read the contribution of the noble and learned Lord, I have no doubt that I shall be satisfied as well. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Pearson of Rannoch moved Amendment No. 126EC:

Page 66, line 26, leave out paragraph (a)

The noble Lord said: This is another very brief probing amendment. If we were to remove paragraph (a) from subsection (5), as the amendment suggests, it would appear to have the effect of allowing the imposition or increase of taxation under subsection (1) of Clause 110. I am sure that no Members of the Committee would want to pass tax powers to the European Union in that way. But my question to the Minister is: why is Clause 110(5)(a) on the face of the Bill at all, unless without it the power to tax might have been created by Clause 110?

I think it unlikely that we are dealing merely with some superfluous drafting inserted by the Treasury to irritate the Foreign Office, or vice versa. In speaking to

3 Dec 2001 : Column 621

the previous amendment I referred to the possible far-reaching effect of importing Article 24 of the TEU as amended at Nice into British law by regulation. I have no doubt that importing the rest of Title V, Title VI and the Schengen acquis into the Bill also have very far-reaching effects, but they are difficult to understand in the huge thicket of bureaucratic language and obfuscation with which we are always faced in these treaties.

My question to the Minister is simple. Will she explain clearly how the possibility arises that in the absence of Clause 110(5)(a) these tax powers might arise? Will she please take us through the thicket—if not now, perhaps in correspondence and before we come to the next stage of the Bill—through the intertwining clauses, of the treaty and explain to us how that might be? I beg to move.

Baroness Symons of Vernham Dean: My answer to the noble Lord is alarmingly simple. It is to make it absolutely clear that there are no tax-raising powers in the clause. The noble Lord says that he wanted to be led through the thicket. Knowing the noble Lord's robustly and clearly expressed views on all things to do with European institutions—although, as the noble Lord makes clear to us on a number of occasions, not to do with European countries—when I saw that the noble Lord proposed to delete the power to prevent the imposing or increasing of taxation I was very surprised indeed.

I assure the noble Lord that there is no nefarious or hidden purpose. Clause 110(5)(a) follows the position on Section 2(2) of the 1972 Act. I am assured that there is a precedent for such clarity. It is for the purposes of clarity. If the noble Lord had not seen the provision written clearly in the Bill, I am sure he would have told us that it should be there. I assure him that the position is entirely in line with what I believe to be his position on the Bill.

Lord Pearson of Rannoch: I am grateful to hear that this is a piece of unusual superfluous drafting. I repeat that I know of nothing in Title V, Title VI or the Schengen acquis which might give rise to a tax-raising power. I still remain very suspicious of the matter especially under Article 24 of the Treaty on European Union. But time will tell and for this evening I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 110 agreed to.

Clause 111 agreed to.

Clause 112 [Use of noxious substances to cause harm and intimidate]:

Lord Rooker moved Amendment No. 126F:

Page 68, line 21, leave out Xinvolves" and insert Xcauses"

The noble Lord said: Amendments Nos. 126F and 126G are necessary to clarify that for an offence to be committed under this clause the use of a noxious substance must directly cause serious violence to a person or serious damage to property. This is unclear from the Bill as drafted. Amendment No. 126H

3 Dec 2001 : Column 622

clarifies that in order for a threat to use noxious substances to be an offence under these new provisions, it must be shown that if the threat were carried out it would constitute an offence under Clause 112(1).

The fear induced by a threat that a noxious substance is likely to be used to cause harm is just as great as that induced by a threat that such a substance will be used for those purposes. Amendment No. 126J acknowledges this by lowering the threshold for the offence of threatening to use a noxious substance to cause harm and intimidate. This also brings the offence into line with the hoaxing offences in Clause 113.

Amendment No. 126K corrects a drafting error. Amendments Nos. 126L, 126M and 126N are designed to clarify the scope of the new hoaxing offence set out in Clause 113. In order for an offence to have been committed under these provisions the hoaxer's act must be in the UK. However, the effect of the hoax may be felt anywhere in the world. It is important to clarify this point. While we are convinced of the necessity of this offence, we do not consider it appropriate to make it extra-territorial.

Amendment No. 126P brings into line the threshold of the offence of communicating false information about noxious substances with those of placing or sending hoaxes. This is important to ensure consistency. I hope that the amendments will find favour with the Committee. I beg to move.

On Question, amendment agreed to.

Lord Rooker moved Amendments Nos. 126G to 126K:

Page 68, line 22, leave out Xinvolves" and insert Xcauses"

Page 68, line 31, leave out Xfalling within" and insert Xwhich constitutes an offence under"

Page 68, line 34, leave out Xwill" and insert Xis likely to"

Page 68, line 44, after XKingdom," insert Xof"

On Question, amendments agreed to.

Clause 112, as amended, agreed to.

Clause 113 [Hoaxes involving noxious substances or things]:

Lord Rooker moved Amendments Nos. 126L to 126P:

Page 69, line 3, leave out Xwhatever"

Page 69, line 6, leave out Xany person" and insert Xa person anywhere in the world"

Page 69, line 10, leave out Xany person" and insert Xa person anywhere in the world"

Page 69, line 11, leave out from Xthing" to Xand" in line 12 and insert Xis likely to be present (whether at the time the information is communicated or later) in any place"

On Question, amendments agreed to.

Clause 113, as amended, agreed to.

Clauses 114 and 115 agreed to.

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Clause 116 [Information about acts of terrorism]:

[Amendments Nos. 126Q and 126R not moved.]

Lord Kingsland moved Amendment No. 127:

Page 70, line 28, after Xhe" insert Xbelieves that he"

The noble Lord said: The clause creates a criminal offence for failure to report suspicions or knowledge that would assist in investigations into terrorist activity. There is a defence of reasonable excuse.

The clause puts a positive obligation on any person to assist investigations. With a few narrow exceptions, there is, at present, no obligation to volunteer information that would assist in an investigation into criminal proceedings. Compulsion occurs negatively when there is contempt of court for failing to answer when summoned by the court to give evidence. In some areas there is an immense reluctance to volunteer information, sometimes from fear of retaliation but, commonly, from a wish not to get involved.

The media have recently reported witnesses in a murder trial who admitted to hearing screams and ignoring them. There was general frustration at the lack of public assistance in the investigations into the murder of Damilola Taylor. This situation can be contrasted with France which has a criminal offence of failing to assist a person in danger. The provision in the clause is a significant development in our jurisdiction which, broadly speaking, is to be welcomed.

However, some clarification is needed. What will constitute reasonable excuse? Will the protections against self-incrimination apply? How will vulnerable persons or frightened witnesses who claim, but cannot evidence credible reason for, fear of retaliation or intimidation be dealt with? Will the burden be on the defendant to prove that he did have a reasonable excuse or, if he raises the defence, will it be for the prosecution to disprove it? I beg to move.

5.45 p.m.

Lord Goodhart: Amendment No. 128 is grouped with this amendment and raises a short point. It is a basic principle of criminal trials that the burden of proof rests on the prosecution; and the presumption of innocence is a basic rule not only of the European Convention on Human Rights but, going back much further in time, of the common law. That does not mean that the prosecution has to disprove any possible offence before it can obtain a conviction.

The courts have developed the principle of what is known as the evidentiary burden of proof, which means that when legislation provides for a specific defence it is not inconsistent that the defendant may be required to provide evidence that supports that particular claimed defence. When such evidence is produced, showing that there are grounds for believing that there may be a reasonable excuse, for example, the burden is shifted back to the prosecution to disprove the alleged facts on which that defence is based.

We had a lengthy discussion on that during the passage of the Terrorism Act 2000. The Government accepted the principle that, when a specific defence was created under that Act, the burden resting on the defendant should be the evidentiary test.

3 Dec 2001 : Column 624

Section 118(5) of the Terrorism Act provides that most special defences under the Act are subject to the evidentiary rather than the absolute burden. The purpose of the amendment is to ensure that the special defence under the new Section 38B(4) to be inserted into the Terrorism Act is subject to the evidentiary burden of proof.

As the noble Lord, Lord Kingsland, has said, Section 38B makes a failure to disclose information about terrorism a criminal offence. Subsection (4) of that section provides a defence of having a reasonable excuse for not disclosing that information. I suggest that that special defence should be subject to the evidentiary rather than the absolute burden, so that if the defendant claims an excuse and gives evidence of facts that, if true, would amount to a reasonable excuse, it is for the prosecution to disprove that, not for the defendant to prove it. My amendment would achieve that.

There is a curiosity about the existing Section 118(5) of the Terrorism Act. It does not apply to the specific defence of reasonable excuse under Section 39(5)(b) of that Act, but it applies to the same defence under Section 58(3). The general principle should apply that the specific defence under new Section 38B(4) should require the defendant to satisfy only the evidentiary burden and thereafter the burden of proof should go back to the prosecution.

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