Counter-Terrorism Bill

Public Bill Committee, 8 May 2008.

Further written evidence to be reported to the House

Dominic Grieve (Conservative, Beaconsfield)

On a point of order, Mr. Bercow. You will recall that the Committee debated earlier the apparent errors made by the Metropolitan Police Commissioner and Mr. Quick, the assistant commissioner, when they gave evidence, and the fact that the errors were communicated apparently to the press but not to the Committee, except by a phone call to the Clerk, which was regarded as insufficient. I see that the Committee has now received a memorandum from the commissioner and assistant commissioner, which members of the Committee should have in front of them. In four lines it purports to deal with what appears to be a serious error in the evidence, but does not contain an apology or an explanation as to why the error was made. It simply claims to clarify that 15 plots have been foiled or have failed since 2000, and not 2005. It is astonishingly discourteous for a supplementary memorandum in those terms to be supplied to a Public Bill Committee.

Patrick Mercer (Conservative, Newark)

Further to that point of order, Mr. Bercow. That four-line explanation is inadequate. If indeed it was a mistake, there is little doubt that it was deeply misleading. If it was deliberately misleading, I find that extraordinary. If it was an omission, I find it incompetent. The way in which the facts were presented was misleading, not just to us and to subsequent sittings of the Committee, but also to the press, which capitalised on it. To have a four-line apologia such as that is inadequate, and I ask for your guidance.

David Heath (Liberal Democrat, Somerton and Frome)

Further to that point of order, Mr. Bercow. We have to be careful not to be overcome by our own pomposity on such matters. Having said that, those witnesses were the Government’s principal advisers on counter-terrorism. They were important witnesses who should have given accurate information. That they did not, in that instance, is regrettable in the extreme, but that they saw fit to communicate with us without any sense of apology is discourteous to the Committee. That should be recorded, and if possible brought, in the most strenuous terms, to the attention of the Metropolitan Police Authority and the Association of Chief Police Officers.

Tony McNulty (Labour, Harrow East)

Further to that point of order, Mr. Bercow. Let us be clear; the evidence was not deliberately misleading. That was made clear by the witnesses. Unfortunately for them and for our deliberations, it was made clear by phone and e-mail, almost instantly after their appearance, but to the scrutiny unit, rather than otherwise. It was made clear to them that that was not appropriate and they were told clearly how they should respond. I share the Committee’s view that this is at best a less than satisfactory way of responding, and I will take the matter up with them and demand something more substantial by way of a further memorandum. There is no question that it was deliberately misleading—it was not and they made that clear.

Dominic Grieve (Conservative, Beaconsfield)

Further to that point of order, Mr. Bercow. I certainly was not suggesting that the evidence was deliberately misleading, but the Committee—without being pompous—might wish to contrast the approach that appears to have been adopted by the Metropolitan police in this case with that of Mr. Rebello when he made a mistake in his evidence.

John Bercow (Conservative, Buckingham)

If hon. Members will forgive me, I would like to offer a response to the various points of order. My view is that corrections issued to members of the Committee should be timely, gracious and of good quality. This correction satisfies none of those criteria. However, it is not of itself disorderly. The hon. Member for Somerton and Frome was anxious that his concerns and those of other hon. Members should be recorded and they have been: they will be in the Official Report of the proceedings of this Committee. I hope that Members will accept that I have given a very clear response. We have pressures of time and important matters to consider. I would like now to proceed with the further business of the Committee. I therefore call the Minister.

Tony McNulty (Labour, Harrow East)

I rise to move the motion, but let me just say in passing, Mr. Bercow, that in the light of your comments about timeliness, given that the four-line memo is dated May 2007, I may take it back to the appropriate authorities.

I beg to move,

That the Order of the Committee [22nd April 2008] be amended as follows: In paragraph (1)(e) leave out ‘1.00 p.m.’ and insert ‘2.00 p.m.’.

Members will know that the late Gwyneth Dunwoody’s relationship with the Government was tempestuous at best, but as a Transport Minister for two years and with the stripes on my back to prove it, I regarded the lady with both affection, and terror and fear, in equal measure. I should like to pay my respects and I know that many other members of the Committee would like to do so too.

Clause 23

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 90, in page 16, line 21, leave out subsection (2) and insert—

‘(2) Subject to subsections (3) to (6), a constable may question a person about a related terrorism offence where the person has already been charged with, or been officially informed that they may be prosecuted for, a terrorism offence.’.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss the following amendments: No. 125, in page 16, line 21, leave out subsection (2) and insert—

‘(2A) Subject to subsections (2B) to (2E) a constable may question a person about a related terrorism offence where the person has already been charged with, or been officially informed that they may be prosecuted for, a terrorism offence.

(2B) A police officer of at least the rank of superintendent may make an application to a judge of the High Court for permission to allow a constable to question a person under subsection (2), if the police officer reasonably believes that the person may be charged with a related terrorism offence.

(2C) A judge may grant permission for further questioning under subsection (2) only if satisfied by evidence that:

(a) there are reasonable grounds for believing that the original charge was appropriate to bring; and

(b) it is in the interests of justice to allow further questioning in the circumstances.

(2D) Where a judge grants permission for further questioning under subsection (2C) he shall make such directions as he considers appropriate with regard to:

(a) the maximum permitted period for further questioning;

(b) the total length of time over which further questioning is permitted; or

(c) any other directions as required in the interests of justice.

(2E) A related terrorism offence means a terrorism offence arising in whole or in part from the same set of facts as the offence with which the person has already been charged, or officially informed that they may be prosecuted.’.

No. 91, in page 16, line 26, after ‘a’, insert ‘related’.

No. 17, in page 16, line 32, at end insert—

‘(iii) has, after satisfying himself that the original charge was appropriate and that further questioning would be in the interests of justice, given authority for the constable to question the person.’.

No. 92, in page 16, line 32, at end insert—

‘(3A) A police officer of at least the rank of superintendent may make an application to a judge of the High Court for permission to allow a constable to question a person under subsections (2) and (3) above if the police officer believes that the person may be charged with a related terrorism offence.

(3B) A judge may grant permission for further questioning under subsection (2) and (3) only if he is satisfied by evidence that—

(a) there are reasonable grounds for believing that the original charge was appropriate to bring;

(b) it is in the interests of justice to allow further questioning in the circumstances; and

(c) that further questioning would not be oppressive.

(3C) Where a judge grants permission for further questioning under subsection (3B) he shall make such directions as he considers appropriate with regard to—

(a) the maximum permitted period for further questioning;

(b) the total length of time over which further questioning is permitted; or

(c) any other directions in the interests of justice,

and these directions shall be subject to variation on application by either party to the same court.

(3D) A “related terrorism offence” means a terrorism offence arising in whole or in part from the same set of facts as the offence with which the person has already been charged, or officially informed that they may be prosecuted.’.

No. 93, in clause 25, page 17, line 29, after second ‘a’, insert ‘related’.

No. 97, in page 17, line 29, leave out subsection (2) and insert—

‘(2) Subject to subsections (3) to (6), a constable may question a person about a related terrorism offence where the person has already been charged with, or been officially informed that they may be prosecuted for, a terrorism offence.’.

No. 98, in page 17, line 32, at end insert—

‘(2A) A police officer of at least the rank of superintendent may make an application to a judge of the High Court for permission to allow a constable to question a person under subsection (2) above if the police officer believes that the person may be charged with a related terrorism offence.

(2B) A judge may grant permission for further questioning under subsection (2) only if he is satisfied by evidence that—

(a) there are reasonable grounds for believing that the original charge was appropriate to bring;

(b) it is in the interests of justice to allow further questioning in the circumstances; and

(c) that further questioning would not be oppressive.

(2C) Where a judge grants permission for further questioning under subsection (2B) he shall make such directions as he considers appropriate with regard to—

(a) the maximum permitted period for further questioning;

(b) the total length of time over which further questioning is permitted; or

(c) any other directions in the interests of justice,

and these directions shall be subject to variation on application by either party to the same court.

(2D) A “related terrorism offence” means a terrorism offence arising in whole or in part from the same set of facts as the offence with which the person has already been charged, or officially informed that they may be prosecuted.’.

No. 22, in page 17, line 32, at end insert ‘, and

(c) a judge of the Crown Court has, after satisfying himself that the original charge was appropriate and that further questioning would be in the interests of justice, given authority for the constable to question the person.’.

Dominic Grieve (Conservative, Beaconsfield)

As the Minister will be aware, there is across the Committee and, I suspect, across the House, a fairly universal view that extending the scope of post-charge questioning is desirable. There are, however, a number of points that need to be borne in mind. The Minister himself has acknowledged that post-charge questioning will not in itself be a panacea. Indeed, as terrorist suspects frequently say nothing at all in interview, there is no reason to suppose that they will say much more post-charge than they did pre-charge. From that point of view, it probably will not add very much. But one of the things that we have discussed is the fact that investigations continue post-charge. It is certainly fair both to a defendant and to the trial process if a defendant can have put to him any new information or evidence that may come forward post-charge.

That said, the way in which the Government have set about providing for these changes gives me, perhaps wrongly, the very slightest cause for concern. Post-charge questioning is potentially or theoretically open to abuse. A person may spend many months on remand in custody between charge and trial. If the police are being given a blanket right to remove the person from the prison where he is being detained and taken down to a police station to start interviewing him again, that could become oppressive. I am sure that that is the last thing that the Minister or anybody would want because it would then be used when the trial process starts to argue that there has been impropriety in the way the investigation has been carried out.

It seemed to us, and this is the thrust of the amendments, that there might be some merit in requiring a constable wishing to interview a defendant to make an application to the court to explain why further interviewing and questioning needs to take place. The nub of that is in amendment No. 125, which states:

“A police officer of at least the rank of superintendent may make an application to a judge of the High Court for permission to allow a constable to question a person...if the police officer reasonably believes that the person may be charged with a related terrorism offence...A judge may grant permission for further questioning...only if satisfied by evidence that: (a) there are reasonable grounds for believing that the original charge was appropriate to bring; and (b) it is in the interests of justice to allow further questioning in the circumstances.”

The judge can then lay down some parameters:

“(a) the maximum permitted period for further questioning;

(b) the total length of time over which further questioning is permitted; or

(c) any other directions as required in the interests of justice.”

One thing that is clear is that once a person has been charged, they are in practical terms in the hands of the court. They are first in the hands of the magistrates court, but because modern proceedings lead rapidly to committal to the Crown court, the time between charge and the first Crown court appearance is now relatively short. Once a person is in the Crown court, judges can give directions for further applications to be made. It could be argued—although against my amendment—that the High Court might not be the best place to go and that it might in fact be better to go to the Crown court judge dealing with the matter. That is an issue of detail, so I do not think that it undermines the broad thrust of the argument.

It would be better if there was a mechanism—if not this one, then some other—by which the court exercises a supervisory role over what is happening. The Government’s approach seems to be based on the notion that as long as we can put together some new PACE rules, which will undoubtedly be required, that in itself will be sufficient. Although we will certainly need PACE rules, I urge the Minister to consider carefully whether the extra safeguard of the ability to go in front of the judge would be desirable. During the Committee’s evidence sessions, Lord Goldsmith and others showed a willingness to consider the idea that at least a liberty to apply or some supervisory court role might be desirable. These are probing amendments, so I would be interested to hear the Minister’s view on that matter.

Another issue that arises in the amendments concerns the definitions under which the Government are seeking to allow post-charge questioning to take place. Clause 23 states:

“A constable may question a person about a terrorism offence where the person has been sent for trial for the offence if...the offence is a terrorism offence”.

We are talking about further interviewing for the same matter on which the person has been charged. The Government have said there is no requirement for legislation to sanction interviewing of defendants in circumstances where they were being interviewed for another offence and not for the offence under which the original charge was brought, and the Committee has received some correspondence on that. The Minister might be right about that, but I have heard many voices within the legal profession express doubt about that, if the questioning that is taking place on the further charge is based on facts that are identical to those relating to the original charge. I hope that the Minister might be able to address that issue when he deals with these amendments, because the last thing that we want is to end up with legal challenges because we have not covered that matter satisfactorily in the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

I do not think that I wished you good morning on my earlier intervention, Mr. Bercow, so I do so now. I rise to speak to two amendments that my hon. Friend the Member for Carshalton and Wallington and I have tabled. As the hon. and learned Member for Beaconsfield has already said, post-charge questioning is seen by many Committee members as a matter of some importance in providing an addition to the armoury of tools that is available to the investigating and prosecuting authorities when looking at terrorist offences. I do not think anybody has suggested that it will necessarily provide for a huge increase in the number of successful prosecutions because, as was pointed out by some of our witnesses, there is a strong suspicion that in many cases there would be further questions, but less in the way of answers being forthcoming from the person who has been charged and is held in custody.

We think that post-charge questioning is important and we are interested in exploring not only the process by which it would take place, but the safeguards that are in place to ensure that whatever emerges from it is admissible in court and is not in any way contaminated by the process. We would like to ensure as far as possible that the process is in good order and in accordance with previous practice.

The hon. and learned Gentleman raised the important point about whether it is possible to question on further charges. The Minister must be absolutely clear on that question when we are talking about further charges on the same facts. It is quite clear that it is possible to re-arrest, re-question and re-charge on new offences if further evidence is brought to light. It is not clear that it would be permissible to question further on the same facts and proceed to further charges. The Government have to be absolutely clear about that and if there is any doubt, they must adjust the legislation to ensure that it is not outwith this part of the Bill.

The second issue, which is common to the hon. and learned Gentleman’s amendments and my own, is judicial supervision. In Scotland, the position is clearer. Once the accused has been charged, he is under the protection of the court. That is implicit in the English and Welsh jurisdiction, but not explicit. Particularly in the circumstances that we are discussing, it is sensible to ensure that there is judicial supervision. I agree with the hon. and learned Gentleman that whether it is a judge of the High Court or of the Crown court is neither here, nor there. There is a principle that some judges at any level will be appropriate and some judges will be less appropriate. This is not a question of the seniority of the judge, but of the level of supervision that can be applied.

The amendments that I have tabled raise the same issue that forms part of the amendments tabled by the hon. and learned Gentleman and I look forward to the Minister’s response.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I support the remarks of my hon. and learned Friend the Member for Beaconsfield and the hon. Member for Somerton and Frome on the need for some judicial intervention to permit post-charge detention questioning to continue. However, I would adopt the point that my hon. and learned Friend made about the status of the judge. I am by no means persuaded that it needs to be a High Court judge. My preference would be for at least a Crown court judge or the judge who is likely to have charge of the case.

As my hon. and learned Friend has pointed out, committal proceedings are now very rapid and case-management powers are much more fully developed than they were. It seems desirable in principle that the judge who will try the case, and who might already have made procedural orders in the context of the case, should also be asked to allow and regulate post-detention questioning. I adopt the principle of my hon. and learned Friend, but I think that a High Court judge is probably not required. At any rate, a Crown court judge is likely to be in charge of the trial.

Patrick Mercer (Conservative, Newark)

I support amendment No. 125 and the right hon. and learned Member for Sleaford and North Hykeham, the hon. and learned Member for Beaconsfield and the hon. Member for Somerton and Frome. As you will have seen, Mr. Bercow, I am the only one, I think, who is without any form of legal training. Therefore, I ask the Minister for some clarification on one point, which has been touched on in legalese, but a bit of plain English would be welcome.

Currently, there is legal ambiguity over issues of repeat questioning for different terrorist offences. With straightforward offences, which I was taught to call ODC—ordinary decent crime—such as burglary, it is simple to have additional questioning on a separate charge, such as assault. With terrorism the picture is less clear, as the same facts are likely to be used to investigate a separate charge. I hope that the Minister can clear that up for me. For instance, a person charged with the preparation of terrorist acts might then be charged with conspiracy to murder—a much more serious offence. Would re-questioning over the same facts be permitted? PACE codes governing police conduct do not mention this area, so is it legal or not? I would be grateful for clarity from the Minister on that. I have talked to what I could best term “the legal community” and there is some ambiguity on the matter. I simply ask the Minister to address and to explain it.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I think that I am required to say good morning to you, Mr. Bercow, in case I am not called again.

I support the amendments already referred to, in particular amendment No. 125, which seems to crystallise neatly the position of the Home Affairs Committee and the Joint Committee on Human Rights. Liberty has come out in favour of further safeguards. There is a possibility of repetitive and oppressive questioning, which we must all guard against. The reasoning behind the PACE code of practice in ordinary criminal matters is to ensure that oppressive and repetitive questioning does not happen, thereby bringing forward false confessions. The concerns are legitimate.

I believe that the amendment would strengthen the Bill. It would address the necessary balance that we keep referring to between ensuring that an individual is accorded his or her rights and ensuring that the police are not hampered in their investigative duties. It is a very sensible amendment. In fact, I remind members of this Committee that, as I have said, both those Committees recommended such provision. There is also a lengthy document from Liberty, which some might say is expected from it, but it is a sensible document. I pray in aid the report of Lord Carlile, who says:

“The Government should consider judicial supervision of the exercise of the power”.

He goes on:

“I have concluded that where post-charge questioning takes place on matters to which a defendant, properly advised by lawyers, could reasonably be expected to reply, an adverse inference should be available where there is a refusal. However, the new or amended Code must include protection against repetitive or oppressive questioning.”

The amendment would deal with that in large measure, together with an amendment to the code, because it refers to judicial intervention or supervision. New subsection (2D) refers to the length of time, the maximum period of questioning and so on.

The amendment would make the Bill far stronger, more human rights-compatible and would stand the test of time. I see no reason to believe that it would hamper investigation in any way. No one in this Committee would seek to do that. It really does improve the Bill. If the Minister cannot accept the precise wording or perhaps the designation of a High Court judge—he may prefer a senior Crown court judge or whatever—I hope that he accepts that judicial supervision is an important part of the amendment and the Bill. I hope that in due course the Minister will give consideration to, if not the precise wording, the precise reasoning of this important amendment.

Tony McNulty (Labour, Harrow East)

May I first say good morning, Mr. Bercow? Having admonished the hon. Member for Somerton and Frome for not saying good morning to you, the Under-Secretary of State for the Home Department, my hon. Friend the Member for Gedling kindly pointed out that I did not do so either, so good morning to one and all.

This is an interesting clause and an interesting group of amendments because we all agree that it is quite proper that post-charge questioning is in the Bill and that it could be useful. Many of us agree that its utility has probably been oversold. It is not the silver bullet or panacea that people think it is, but it is none the less a useful weapon in the armoury. On that, we are all agreed.

I think that we also all agree that there should be oversight. The distinction between our views is on what form that should take. In an earlier sitting, I said that where amendments were forthcoming to codes or anything else, I would seek to ensure that the Committee has them before Report and I shall do that. Whatever measures we pass on oversight, as hon. Members have indicated, there will have to be changes to the PACE code and those will quite properly be made.

I am fairly agnostic on oversight, save for the notion that there should be some. I will pray in aid the evidence of Ken Macdonald—I hope that he will not be offended—who described roughly the position that I hold. He said that he saw the need for oversight, but was very clear that he did not think judicial oversight was necessary. To be entirely fair to him, I quote him in full:

“I do not believe that judicial oversight is necessary, although that is a matter for Parliament.”

He quite properly stated that caveat throughout his evidence on pre-charge, post-charge and everything else. He went on:

“A difficulty with judicial oversight of the sort that you are suggesting is that it could significantly slow down the process. I imagine that the judge would be relatively reluctant to make an order of that sort until he was well seized of the case. We are envisaging here questioning that takes place fairly swiftly after charge. However, I do believe that some element of supervision would be desirable. It seems natural that the police should consult the prosecutor in the case, so that a decision can be taken on whether post-charge questioning in the circumstances of that case is appropriate. An element of supervision is desirable, but judicial supervision could slow the process down too much.”——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 45-46, Q118.]

I say quite candidly that that is the part on which I am relatively agnostic, if one can be relatively agnostic. I do not dismiss the amendments entirely. Through additions and amendments to the PACE codes, we can deal with matters of repetitious questioning, oppressive questioning and overburdening questioning. As I have said, I will bring forth those changes as soon as I can.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Does the Minister accept that his arguments would be more persuasive if the obligation to lay further PACE codes was mandatory? The Bill merely makes it permissible. Would he not be in a stronger position if it was mandatory?

Tony McNulty (Labour, Harrow East)

As ever, the right hon. and learned Gentleman is way ahead of his time, although it is probably by accident rather than by design. We are coming to a clutch of Liberal Democrat amendments about which I shall be even more emollient: although I do not like the form of words, they include a matter that we can and should look at. I will promise the Committee faithfully at that time—I shall not do so now because I do not want to provoke you, Mr. Bercow—that we should consider putting a requirement in the Bill for the PACE codes to be amended.

Collectively, members of the Committee want post-charge questioning to be as robust a tool as possible. Quite fairly, hon. Members have said that to aid that, judicial oversight is preferable. I do not want to go down the road of discussing what level of judge that should involve.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am listening carefully to what the Minister says. He said that it ought to be possible to amend the PACE codes to provide for precisely what would be oppressive and repetitive questioning. That will cause a difficulty, as every case will turn on its own facts. That is where, with respect, judicial supervision would be preferable. Yes, we could make it mandatory to follow the code to the letter, but it will be difficult to set out precisely what is oppressive in the circumstances.

Tony McNulty (Labour, Harrow East)

Surely, any number of our enlightened legal colleagues on the Committee will know that. They make some of their money, at least, precisely on the notion that every case turns on its facts.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Yes.

Tony McNulty (Labour, Harrow East)

Precisely. Therefore, some dispute about the nature of post-charge questioning will be inevitable. How oppressive or otherwise the questioning might have been—despite what we have done to the code—might be discussed at the start of the trial, given any further evidence or no comment at all from the individual, or when someone goes to the judge to ask. None of that pre-empts some little dance, at least, in court proceedings about the nature of the post-charge questioning. That is an inevitable result of broadening the notion of post-charge questioning, and we cannot avoid that by judicial oversight. That is partly my difficulty, rather like Ken Macdonald. I think that the delay point can be overcome, although no judge would want simply to say yea or nay without being seized of the facts of the case, and that is fair too. If we are saying—and I do not know that we are—that judicial oversight pre-empts further discussion and debate about the nature of post-charge questioning in court, that is not the case.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am not suggesting that, but it would limit the scope for such challenge. That is the point—it will probably never do away with it.

Tony McNulty (Labour, Harrow East)

In substance, I think that we can do that through the codes, but I say with all candour to the Committee, that I am happy to explore the matter further. In that sense, I am a Macdonaldite—not in relation to ’29 to ’31 MacDonald, but the Director of Public Prosecutions. I am confident that, given where we might get to with the next set of amendments, we can, in the Bill or otherwise, mandate changes to the code and ensure that our concerns are dealt with properly. I do not entirely dismiss judicial oversight and all the detail; I simply ask the Committee to lay those matters to one side for now. Let us go away, have a further look, and re-examine the clauses once amended. I am happy to return to the matter with further answers on Report. I am not throwing the baby out with the bath water; I am saying that I am not convinced, although I see the argument. I am convinced that we could do it better with the code rather than otherwise, but I am happy to continue to explore the matter. In that very emollient context—

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister give way?

Tony McNulty (Labour, Harrow East)

I can hardly say no, can I?

David Heath (Liberal Democrat, Somerton and Frome)

I do not think that the right hon. Gentleman has entirely addressed the issue of further offences or questioning on the same offence, which is a key point.

Tony McNulty (Labour, Harrow East)

I did not think that this would be the end of our deliberations on the matter; I was saving that issue for other occasions. I take the hon. Gentleman’s point, and I will look at that too. I start from the premise that, if there is a more substantial charge during the course of an investigation that can be laid with the defendant, it is perfectly reasonable for him to be re-cautioned in that context. I take the point about the debate going on with our legal brethren, but I am currently convinced that that is appropriate. I also take the point—and this should be explored further to get us to the post-charge questioning regime that we all want—that given the nature of the offences, it is often the same material and evidence, in part or in substance, that forms the further charge or an adjustment to the same charge. Between what we already have with the PACE code on further charges, and the provision that we are setting up here with regard to further questioning, the hon. Gentleman’s point will be covered. I know that that is difficult because of what we say about the PACE code in the next group of amendments, but I am fairly comfortable with that.

Dominic Grieve (Conservative, Beaconsfield)

On the ability to interview somebody for a separate offence, there has been an exchange of correspondence and the Government have stated their case and advised that that is no problem. The use of the word “related” in our amendments would meet the possible problem. However, my colleagues at the Bar who practise in this area differ slightly from the Government in their assessment of when it is permissible to interview at present. It might be a belt-and-braces job, but it would be better to get it right now, than to have a problem later which defeats part of the intention of the Committee and the House.

Tony McNulty (Labour, Harrow East)

I accept that. Even if my agnosticism turns into outright hostility to the thrust of the amendments, I think, although I am not 100 per cent sure, that I will nick the word “related” at the very least. There is no distinction between us about the principle, but about practicalities, which is why I am trying to be as helpful and responsive as possible. In that context, I ask the hon. and learned Gentleman to withdraw the amendment, perhaps pending further discussion before Report to see whether we can clear these matters up and get to where we all want to be.

Dominic Grieve (Conservative, Beaconsfield)

I am most grateful to the Minister for his comments. These amendments were tabled as probing amendments so that we could look at the two key issues. The first relates to judicial supervision, and the second concerns definitions, what constitutes the same offence or a separate offence, and ensuring that both types can be interviewed after charge if necessary. I am greatly reassured by what the Minister said about going away and looking at these issues afresh. Clearly, if only to avoid time-consuming activity on all our parts, it is important for the Government to maintain the channels of communication with us so that we know well before Report whether there is a meeting of minds on the matter. We might wish to return to it on Report if the Government disagree with us. At the same time, I have no desire whatever to disagree with the Government on this issue.

Tony McNulty (Labour, Harrow East)

I am happy to give that assurance. That is perfectly reasonable: if there is not the unity that we want, the hon. and learned Gentleman should have the time to marshal his resources appropriately for Report.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. I beg to ask leave to withdraw the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 14, page 16, line 25, after ‘offence’, insert

‘, at any time up to the commencement of the trial,’.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss amendment No. 21, in clause 25, page 17, line 32, at end insert

‘, at any time up to the commencement of the trial,’.

David Heath (Liberal Democrat, Somerton and Frome)

We are having a very useful discussion this morning. For once, all parties are on exactly the same wavelength in what we are trying to achieve. We are simply trying to make sure that the legislation fits the circumstances that we see developing. These are probing amendments in support of an observation by the Joint Committee on Human Rights in response to the evidence that it heard on this matter. I hope that the Minister can reassure me.

Our amendment simply seeks to ensure that post-charge questioning does not continue once the trial has commenced. Common sense suggests that that would be the case. After all, once a trial has commenced the proper place for questioning is in the context of the trial, with the direct supervision of the judge for the case, rather than in a police cell, with that evidence being given second-hand to the court.

I present Lord Lloyd of Berwick in support of my case with some difficulty, because he is wholly opposed to post-charge questioning and made that abundantly clear. Although I so often agree with him, in this instance I do not. In the debate on the Queen’s Speech in 2007, he said:

“Even if it were to be allowed, where would it stop—at the door of the court? To allow a defendant to be questioned by the police up to the moment that he goes into the dock would be quite intolerable. No one would seek to defend that; but where else is the line to be drawn, once post-charge questioning is allowed?”—[Official Report, House of Lords, 12 November 2007; Vol. 696, c. 264.]

My response is that a clear line can be drawn at the trial’s commencement. That is when I would expect an absolute prohibition on further post-charge questioning.

I hope that the Minister will reassure me that that is exactly what will be contained in any future PACE codes on the matter, and that it will be clear that once the prisoner appears in court, that is the end of the investigative process, and the beginning of the judicial process.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I have two observations. First, I agree with the hon. Gentleman that it would be quite wrong for questioning to take place during the currency of the trial. That is so clear that the point need not be argued. Secondly, I am bound to say that I am cautious about the suggestion that post-charge questioning should take place close to the trial. As a matter of general principle, the prosecution should achieve some finality in its case at least in good time before the trial. It is probably a matter for the PACE codes or perhaps judicial supervision to determine exactly when the post-charge questioning must cease but, as a proposition, one is entitled to say that the Crown must get its tackle in order in good time before the trial, so that the defendant knows the exact nature of the case that he or she must face, and that the ground cannot shift under his or her feet.

Those are my two observations on the principle. I have a nasty feeling that the amendment might encourage the police to suppose that they are entitled to question right up until the date of the trial. That is not the hon. Gentleman’s intention, but I have a nasty feeling that it might have that effect. However, I understand his thinking and I support it. I hope that we will get reassurance on that point from the Minister.

Tony McNulty (Labour, Harrow East)

I think that the right hon. and learned Member for Sleaford and North Hykeham can have that reassurance. If nothing else, the amendment is a useful hook on which to put the notion that the codes of practice on commencement of post-charge questioning would make it clear, notwithstanding his point, that post-charge questioning relating to offences about to be tried should cease before the trial. I actually think—I repeat that I am no lawyer—that, as has been implied, the judge would rule all evidence obtained as a result of questioning a suspect about the offence after the trial has started as unfair and therefore inadmissible. That will be made clear in the amendments to codes, regardless of where we end up with the last discussion.

More explicit reference to what will be in the codes might be put in the Bill—I have agreed to look at that proposal. I undertake to consider the general point on offering at least a draft of amendments to the code so that we can see what they might look like before Report, as I have said. However, I cannot accept the amendment because there are some problems with it. It makes no mention of pre-existing forms of post-charge questioning, limited though they are, and its impact on them. Nor does it refer to intelligence interviews that have nothing to do with the immediate offence but which might be pressing, nor retrials. I do not like the amendments, although I appreciate the spirit in which they have been tabled.

The code of amendments will make clear, as the Committee has, that post-charge questioning is probably not terribly useful or fair beyond the start of a trial or in the preparation for a trial. In that context, I ask that the amendments be withdrawn.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Although I agree with the Minister, I have one further thought. In any Crown court proceeding there is a preliminary hearing before a judge, who will look at the state of the case. Surely there would be reference then to whether post-charge questioning was needed, therefore negating the rush to trial and then suddenly aborting it because of an argument about some questioning the day before. That could be dealt with at the preliminary hearing.

Tony McNulty (Labour, Harrow East)

Potentially so. I hear what people say about the speediness of committal these days, but “rush to trial” and “the English legal system” are two phrases that do not necessarily run together—more is the pity in some cases. The point applies equally to what we mean by the start of a trial.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am glad that the right hon. Gentleman is being helpful on that point. Might I make a suggestion that he might ponder, that any application made to a judge with regard to post-charge questioning must be an inter parte application? That is to say that the statute or the rules should provide that the defendant or the detained person is always present and/or represented at any such application.

Tony McNulty (Labour, Harrow East)

The right hon. and learned Gentleman seeks to provoke me gently, because there is no judicial oversight for post-charge questioning in the Bill. Were there to be, I would be with him in that regard, purely because, should there be post-charge questioning or otherwise, I cannot see the fairness of, or the requirement on the part of the state for, ex parte proceedings. The point is entirely fair. None the less, I take the serious point made in the amendments and in the spirit of my response I ask that the amendment be withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I thank the Minister for his response. I believe that there is no difference between us in the outcome that we seek. This is not an attempt to provoke the Minister further, but I again make the point that were judicial supervision to be in place it would be self-limiting because the judge would rightly say, “No, the trial is to commence next week. You are not going to have a further period of post-charge questioning because that might prove inadmissible in the trial.” There is a self-regulating structure available if we have judicial oversight of post-charge questioning. The Minister has, however, given me the sort of assurances that I sought. I never intended to press the amendment to a Division at this stage, but it is an important area and should be contained in any forthcoming codes of practice. There must be clearly defined good practice in that area to avoid inappropriate use of what is a considerable extension of existing powers, which we all want to see, but properly regulated. I beg to ask leave to withdraw the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 16, in page 16, line 34, leave out ‘may’ and insert ‘must’.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss the following amendments: No. 18, in page 16, line 35, at end insert—

‘(4A) Codes of practice made under subsection (4) must include provision for—

(a) questioning to take place only in the presence of a lawyer representing the interests of the accused person;

(b) a transcript to be made available to the judge authorising the questioning under subsection (3);

(c) the questioning to be subject to a video recording;

(d) for the purpose of the questioning to be confined to questioning about new evidence which has become available since the accused person was charged; and

(e) preventing oppressive questioning by specifying appropriate time limits.

(4B) Prior to the commencement of the trial the judge must review any transcripts made available to him under subsection (4A)(b) having regard to subsections (4A)(d) and (e).’.

No. 20, in clause 90, page 59, line 33, at end insert—

‘( ) The provisions of Part 2 (detention and questioning of terrorist suspects) come into force—

(a) in England and Wales on the day after the revised codes of practice under section 23(4) have effect, and

(b) in Northern Ireland on the day after the revised codes of practice under section 25(3) have effect.’.

No. 23, in clause 25, page 17, line 34, leave out ‘may’ and insert ‘must’.

No. 24, in page 17, line 36, at end insert—

‘(3A) Codes of practice made under subsection (3) must include provision for—

(a) questioning to take place only in the presence of a lawyer representing the interests of the accused person;

(b) a transcript to be made available to the judge authorising the questioning under subsection (3);

(c) the questioning to be subject to a video recording;

(d) for the purpose of the questioning to be confined to questioning about new evidence which has become available since the accused person was charged; and

(e) preventing oppressive questioning by specifying appropriate time limits.

(3B) Prior to the commencement of the trial the judge must review any transcripts made available to him under subsection (3A)(b) having regard to subsections (3A)(d) and (e).’.

David Heath (Liberal Democrat, Somerton and Frome)

Amendment No. 16 deals with the codes of practice and does two things. First, under subsection (4) it requires that the changes in the codes of practice be made, in contrast to the permissive power given there at present. Secondly and importantly, it sets out the parameters for those changes to the codes of practice, to ensure that there are proper protections against oppressive questioning. We all recognise that whatever utility there is to post-charge questioning—and we all hope that it has utility—the person charged and in custody is potentially vulnerable, and it is important to maintain the highest level of safeguards, not least to ensure the efficacy of the process with respect to the admissibility of the evidence in court. It is pointless to conduct a heavy-handed interrogation that devalues the evidence in court, making it more likely that there will not be a conviction. We must be explicit about the protections for the individual being questioned.

A key area—on which we shall touch in the next group of amendments, so I shall not deal with it extensively—is to ensure that the purpose of the questioning is the collection of further evidence, and not the achievement of a series of silences from the witness, which can then be used under the adverse inference rules to strengthen a case in court. That would be a misuse of the powers of questioning.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I think that the hon. Gentleman is speaking to his amendment No. 18, and I am a little puzzled by paragraph (d) of the new subsection (4A) that the amendment would insert into the clause. The paragraph would confine questioning to new evidence. It is far from clear to me why the subsequent questioning should not be used to clarify issues that arose in the previous interviews. I do not see why it should be so confined.

David Heath (Liberal Democrat, Somerton and Frome)

It is not my intention to lay down firm rules; I do not say that what is in the amendment is necessarily what should go in the Bill, and I look forward to the Minister’s response. My purpose is to ensure that post-charge questioning would be used for a proper purpose, relevant to the circumstances that we have been exploring throughout our discussions on the Bill. It should not enable the police or investigating officers to take short cuts in charging.

Charges should be properly based when they are made, but post-charge questioning would then make it possible to explore either further evidence that could not come to light in the normal detention period—let us remember that many of us argue that the questioning is part of the apparatus that makes the extension of pre-charge detention unnecessary—or evidence of further criminality, so that the investigating officers could properly come to a conclusion about the full criminality of the accused person. That seems to me to be the proper use of the process.

The right hon. and learned Gentleman may be right; the exclusion may be unnecessary. I included it because it was among the suggestions of the Joint Committee on Human Rights. The Committee did extensive work on the subject, and it struck me that putting forward the safeguards that it felt necessary, on the basis of the evidence it received, would be of value. The right hon. and learned Gentleman’s point is arguable, and I accept that.

Tony McNulty (Labour, Harrow East)

To pursue the same point, my difficulty with the amendment is that it rather presumes clarity of evidence at the point of charge. It is perfectly right to suggest that there may be entirely legitimate post-charge questioning in relation to that clarity. At the extreme, a computer or hard disk may be offered in evidence at charge, and not all of the hard disk may have been de-encrypted. The lawyers will have another fine day in court, saying that it was registered as evidence at charge and no further questions can be asked to seek clarity as has been suggested. That is an extreme example, and we can clearly deal with that, but there are difficulties about presuming that there is absolute clarity as to the evidence that is offered at charge. To lock it off entirely from further questioning would not be terribly helpful.

David Heath (Liberal Democrat, Somerton and Frome)

I understand that point and I am prepared to consider the matter further. I have to say, though, that what the Minister suggested would constitute new evidence. If material that had been encrypted at the point of charge was then de-encrypted and used in questioning, that would constitute new evidence and would fall within that definition. However, that is a matter that we can discuss further. I do not want to fall out over the detail of the prescription when it is the principle that is important. Given that the Minister has hinted that he is open to suggestions, I would say that changes must be made to the Police and Criminal Evidence Act 1984. We all accept that, and he understands that perfectly well. The question is whether those changes should be in the Bill or not. There is sufficient evidence from those who have considered the matter in detail to suggest that it would be of value to at least have the principles for the amendments to PACE in the Bill. Some of them are self-evident and cover a range of matters, including the prohibition on oppressive questioning, the right to a lawyer, and the subject of the recording.

The most important thing is to provide the context in which post-charge questioning takes place and to ensure that it is an orderly and judicially based process. That is what I am trying to achieve. I hope that the Minister will consider the matter further and bring back amendments of his own if, having considered it, he feels that it is appropriate to put the matter in the Bill. I hope that he will not reject the principle behind my amendment even if he cannot accept the precise wording. If he did that, that would be progress and it would enable us to achieve clarity, and clear limitations on the process. That will ensure that everybody knows what can and cannot be done, what is and what is not appropriate, what would be admissible in court and therefore of value in the evidential and judicial process and what will undermine the case, which would be utterly pointless and something that we would want to avoid.

Dominic Grieve (Conservative, Beaconsfield)

It is very helpful for the hon. Member for Somerton and Frome and his colleagues to have tabled the amendments to enable us to consider further what should or should not appear in PACE codes. I hope that he will forgive me if I say that amendment No. 18 is too prescriptive in the way in which it lays down how the system should operate. My concern has always been to have judicial supervision over the granting of permission, but I do not see any reason why, once that permission is granted, it should not be covered by the ordinary PACE codes and any extra PACE codes that are needed. It has been argued on many occasions that we should video record all interviews in police stations. However, such an idea has been shied away from because of the prohibitive cost. It has been suggested that if we were to do it, it would be an enormously helpful tool to the prosecution when it deals with problems or allegations about what goes on in the setting of interviews. I do not see why a special rule should be made for post-charge questioning if there is not a rule already in place for pre-charge questioning. I would be very surprised if the majority of terrorist-related cases are not already videoed in the course of the interviewing process. The same is true of the transcript. I agree with the hon. Gentleman—although this is so obvious that it hardly needs to be said—that we must have new PACE codes because the existing ones do not cover this contingency. From that point of view, whether it is “must” or “may”, this system cannot properly get off the ground unless we produce acceptable codes that cover this new area of questioning.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I want to make three points. First, I, too, agree that the obligation to lay the PACE codes should be mandatory. Secondly, it is my belief that the laying and making of new PACE codes should be a condition precedent to the implementation of this part of the Bill, and it is my intention to table an amendment relating to the implementation and commencement of clauses to bring that about.

I shall echo what my hon. and learned Friend the Member for Beaconsfield said about amendment No. 18. I entirely understand that the hon. Member for Somerton and Frome is seeking to protect the interests of the detained person, but like my hon. and learned Friend, I see no particular reason why the ordinary PACE codes should not apply.

I would like to make some specific comments about amendment No. 18. The hon. Member for Somerton and Frome needs to keep in mind that, although it does not happen frequently, sometimes detained people choose to be questioned in the absence of solicitors, and it would be a bit perverse to prohibit them from doing so if that is what they want. With regard to the transcript of the questioning, the important thing is that it should be available at trial. It is not self-evident to me why it should be made available to the judge authorising the process. With regard to video evidence, in principle it would be good to have video evidence of all interviews. As a matter of fact, it is now rare for defendants to assert that they have been ill-treated during interviews, because they are all taped. However, it would be helpful in cases where a defendant is extremely contemptuous—[Interruption.]

John Bercow (Conservative, Buckingham)

Order. I apologise for interrupting the right hon. and learned Gentleman, but there is a certain amount of chatter taking place. I am sure that Members will want to listen with rapt attention to the right hon. and learned Gentleman.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

You flatter me, Mr. Bercow. None the less, I will accept flattery for whatever reason.

Video evidence can be helpful when a defendant is extremely contemptuous of the questioning process. I remember that when I was doing the Minister’s job many years ago, I once went to the Castlereagh holding centre in Northern Ireland. At that time, the police did video interviews of IRA and other terrorist suspects. I remember looking at the process of the interview and seeing one of the detained people just lolling back and really laughing at the questioning officer. Such evidence is helpful for the prosecution to see how the interviewee is responding, so there is merit in videoing.

I also think that paragraph (d) in amendment No. 18 is too restrictive. The Minister is right when he says that definitional questions will arise as to what is new evidence. In any event, it seems rather perverse that further questioning should not be allowed in respect of doubts that have arisen in the previous questioning. Indeed, it can also work to the advantage of the defendant. I will briefly cite the case that I have just concluded. The defendant was asserting that he had made phone calls to relevant parties. That was true, because it was reflected in the billing records. It would be perverse if anything that we did prevented a police officer from going back and saying, “You said in the previous interview that you had made these phone calls. Would you be good enough now to indicate where in the billing records they are to be found?”

We should be cautious about being unduly restrictive in the PACE code requirements that we have in mind, although I am always on the libertarian side of the argument. I hope that the hon. Member for Somerton and Frome will recognise that although I entirely accept his good purpose in the matter, I do not wish to see his amendments carried or pushed any further forward.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I rise in part to wish you good morning before it is too late to do so, Mr. Bercow. It is clear from the debate that has taken place so far that the Minister has expressed some sympathy for some of our amendments, but less so for amendment. No. 18. Indeed, we have heard expressions of concern from the official Opposition on that score as well. However, I hope that the Minister will be able to respond specifically to paragraphs (a) to (e) in amendment No.18, to make clear his views on those points.

Tony McNulty (Labour, Harrow East)

It is a shame that our hon. Friend the Member for Newark—I use the word advisedly—is not in his place, because we have shared a number of Bill Committees and I think that he has a little bingo card for striking through some of my more pompous phraseology. “Canard” was Tuesday’s, after something I said in reference to the identity cards legislation. The term I have not used thus far, but which is appropriate for amendment No. 18, is undue specificity, or in similar terms, over-prescription. That is, putting measures on the face of the Bill that apparently guard people’s liberty, but which are far too restrictive for what we seek to achieve with post-charge questioning and defendants’ rights. I do not like amendment No. 18 at all and others have been through some of the reasons. Why have a post-questioning regime at all if either, as was being pointed out, the individual cannot be further interviewed at his own request without a lawyer or, as set out at paragraph (a), there is effectively a complete veto by the defendant on post-charge questioning? All that they would have to do is say, “I don’t want a lawyer.” That cannot be what the hon. Member for Somerton and Frome was seeking to do.

The right hon. and learned Member for Sleakeham—[Interruption.] I apologise. The right hon. and learned Gentleman has made it clear that a transcript should be available, but the notion that the judge should review it at some stage before post-charge questioning seems entirely irrelevant. On video recording we have made it clear, not least because of requests from the police and the JCHR, that in future all terrorism cases will have compulsory video recording, although I think that that is pretty much the case already. We can certainly explore whether video recording is suitable for post-charge questioning and it may well be, for all sorts of reasons—not least our trip down memory lane to Castlereagh. As I have already said, paragraph (d) in amendment No. 18 is not appropriate, but time limits, video and all such elements can and should be dealt with in the changes to the police code.

I shall not embarrass anybody, but I shall read out my brief on amendment No. 16. The amendments would make it compulsory for codes of practice to be put in place for post-charge questioning about the offence charged in England, Wales and Northern Ireland. It has always been the Government’s intention that the codes of practice governing police questioning of a suspect will be revised to take account of post-charge questioning. Indeed, it would not be possible, as the hon. Gentleman inferred, for these clauses to work without such revisions, so we believe that it would be unnecessary to make the requirement compulsory. What we are saying is that these provisions for post-charge questioning will not work without revisions to PACE. It is irrelevant, therefore, to say that they should be compulsory on the face of the Bill because if they are not compulsory, the whole system will not happen. The Committee would be in a more satisfactory position if, in this one instant, a little call my bluff game was taken on board and the “may” became “must”. The inference should be that we want the thing to work, so it is purely a tidying up exercise to replace “may” with “must” to include a compulsory element, with my assurance that at least the principal heads of such amendments to the code are available to the Committee before Report.

Unaccustomed as I am to accepting amendments, I accept with all due humility amendment No. 16, making it mandatory rather than optional for provisions to be made under the PACE codes, but I reject the others with the contempt that I am more comfortable with.

David Heath (Liberal Democrat, Somerton and Frome)

The contempt that the hon. Gentleman was expressing is of course also a contempt for the JCHR, which was the author of the provisions, and I am sure that that will be communicated to the Chairman of that Committee in due course. In all seriousness, I am grateful to the Minister for his response. I wanted us to have a substantive debate on this issue and I think that we have had that. He is very clear about some of the provisions that ought to be in the revision of PACE, and that is good news.

I have spent years of my life discussing amendments that either replace “may” with “must” or “must” with “may” and whatever I put down there is usually civil service advice to say that the opposite has to apply, and at the end of the day it very rarely amounts to any real difference in the effect of the Bill, other than affecting the sort of mood music that surrounds it, so I am grateful to the Minister for accepting amendment No. 16. In that context, I assume that he also accepts amendment No. 23, as it is identical and refers to the same thing.

Tony McNulty (Labour, Harrow East)

That is purely the clarification that I was going to offer. That is entirely the case. I of course accept amendment No. 23 as well as amendment No. 16.

David Heath (Liberal Democrat, Somerton and Frome)

Two amendments in any sort of criminal justice Bill Committee is good going. So I will rest on that, other than to say that it would be obviously helpful to have the drafts of the revisions to PACE before Report.

Furthermore, I hope that the Minister will consider whether he wishes to put anything in the Bill that gives the basic principles behind the PACE revisions, not because of any pleading on my part but because of the evidence of a lot of people who have examined this subject and believe that that addition is necessary. That is the basis on which the JCHR made its recommendation; it did not just pluck that recommendation out of the air but made it on the basis of the evidence that it had received. I think that that recommendation was echoed by my noble Friend Lord Carlile of Berriew in the evidence that he gave; he suggested that it would be better if there was a very clear provision in the Bill in this respect. Certainly, he was strongly of the view that there need to be very clear safeguards in place.

On that basis, it is not my intention to seek a Division on amendments Nos. 18 or 24. However, I wish to press amendment No. 16 and, in due course, amendment No. 23.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 19, page 17, line 2, leave out subsections (6) and (7).

John Bercow (Conservative, Buckingham)

With this, it will be convenient to discuss amendment No. 25, in clause 25, page 18, line 1, leave out subsections (5) and (6).

David Heath (Liberal Democrat, Somerton and Frome)

Thank you, Mr. Bercow. I think that we can now rapidly complete our consideration of this issue of post-charge questioning.

Amendment No. 19, which I move in my name and that of my hon. Friend the Member for Carshalton and Wallington, deals with adverse inference. The Minister knows that we are uncomfortable—I put it no more strongly than that—with the principle of drawing adverse inference from silence and the qualification that that gives to the right of silence. Having said that, I am not deaf to the advice that we received in evidence that this principle was a key part of the utility of post-charge questioning.

I do not intend to press these amendments to a vote in the Committee today. However, where adverse inference is drawn in court proceedings from silence on matters raised in post-charge questioning, the specific circumstances of post-charge questioning in which that person remains silent—we have all accepted that those circumstances are different from those of normal questioning—should be drawn to the attention of the court. As everybody who gave evidence said, the defendant will almost certainly have been advised by their lawyer to say absolutely nothing in response to post-charge questioning, even if that advice is not always taken. However, the amendment does not say that those circumstances should be brought to the attention of the court; it would delete the provisions concerned, and that is why I shall not press it.

Will the Minister respond to the proposal that rules of court and advice to judges trying a case should suggest that the matter be brought to the court’s attention so that the jury is aware that, although it is in order to draw an adverse inference from the silence, it should be qualified by the circumstances of post-charge questioning, in which someone was in a police cell and had been charged? That is a complicated way of saying something that might or might not have value in court proceedings, but it is a strong suggestion from those with better legal training than I have, which is none. It was made to the Joint Committee on Human Rights in written evidence, and it seems to be an appropriate suggestion for the Minister to respond to.

Dominic Grieve (Conservative, Beaconsfield)

I am not unsympathetic to the anxieties expressed by the hon. Member for Somerton and Frome, and there is a long history of arguing about whether we should be entitled to draw adverse inference from silence. At one time, under our legal principles, that was prohibited.

My experience in the days before adverse inference could be drawn was that in certain cases juries had no difficulty drawing adverse inference from silence, notwithstanding the fact that they were told specifically by the judge that they should not do so. Equally, my impression in so far as I have the seen the working of the adverse inference system operating since—I have done so on a number of occasions—is that it does not seem to have made much difference the other way either. If the jury believes that there is a good reason why someone might have decided to remain silent, whatever adverse inference is suggested, it does not make it. If, on the other hand, it cannot think of a reason why someone did not say something at an earlier stage that they now put forward in court, for example, it draws its own conclusions.

For those reasons, although I would be prepared to engage in a debate as to whether we should restore the right to silence generally, I am not sure that any special safeguard is required in this context. It seems to me that post-charge questioning is post-charge questioning. It clearly falls into a slightly different category, and counsel representing a defendant would have no difficulty in pointing out that such matters were put to the defendant at a later stage. Defendants can, as the hon. Gentleman is aware, say that their legal advisers told them to say nothing, and the jury can make of that exactly what it will. A special protection is not required, as we agreed a long time ago, under a previous Conservative Government, the principle of changing it. I had some reservations at the time, but as so often happens with changes that are introduced to try to make the criminal justice system more efficient, they turn out not to make much difference.

Another classic example is that of letting in previous convictions, which the hon. and learned Member for Medway (Mr. Marshall-Andrews) touched on so well. It was suggested that that would be a short cut to convicting defendants, but it seems to have led to longer trials, because everyone’s character is now thrown in left, right and centre during the trial process, which previously did not happen.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I support very much what my hon. and learned Friend said. In 1994, I had some doubts about whether it was desirable to abrogate the right-of-silence rule. Such doubts were misplaced on the whole because, first, I do not think that there was much damage. Secondly, I think that my hon. and learned Friend was right when he said that juries, in proper cases, did draw an adverse inference, whatever the law might strictly have been at the time. It is extremely difficult to make a distinction in principle between silence in pre-charge questioning and silence in post-charge questioning. I do not see how the distinction of principle can be sustained. In any event, it is open to the defence counsel to make such points as he or she might deem desirable.

In answer to the point made by the hon. Member for Somerton and Frome, that the detained person is likely to answer no questions, I would rather doubt that. Nor would that be the advice that I would give to a detained person. My advice would be, first, to try and ensure that there is full disclosure from the police—that is sometimes pretty difficult. Once the detained person has some disclosure, they should make a written statement. If the detained person asserts his or her innocence, the sensible detained person would say in their written statement, “I have limited disclosure from the police as to the facts on which they rely. I now, however, wish to assert my innocence.” Then they would make a few robust statements, and sit down—which is what I propose to do now.

Tony McNulty (Labour, Harrow East)

First, may I apologise to the right hon. and learned Member for Sleaford and North Hykeham, for truncating the name of his constituency to Sleakeham?

The substance of the amendment has been adequately dismissed by the hon. Member for Somerton and Frome. However, it seems to me that one can only make a negative inference from post-charge questioning if the existence of the post-charge questioning is recognised by the court. If there is any doubt, as has been said, the circumstances of the questioning would be made very clear, very rapidly, to the courts. There may well be some larger debate about whether to restore the right to silence, with no inference from that more broadly, but that is not a matter for this part of the Bill. Nor is the introduction of a more explicit provision for post-charge questioning appropriate. Although it is not the intent of the hon. Member for Somerton and Frome, whatever value we might get from post-charge questioning might be negated. I have seen—not as a lawyer, but more generally—videos that show the manner in which the silence is carried through by individuals. Whatever the provisions, the jury will make their minds up one way or the other.

I do not think, therefore, that the amendments are useful, and I ask that they be withdrawn. I look forward to the wider debate on the right to silence in the English and Welsh criminal justice system at some other stage—but not now.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister says not now, but that is something that we ought to discuss at some stage. I listened to the hon. and learned Member for Beaconsfield and to the right hon. and learned Member for Sleaford and North Hykeham, whose constituency, in my experience in Committee, causes as much problem as my own, inexplicably in my view—Somerset and Frome is a perfectly easy thing to say, but no one can say it.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

What about mine?

David Heath (Liberal Democrat, Somerton and Frome)

Meirionnydd Nant Conwy is dead easy in comparison.

I am grateful for the opportunity of raising the issue. I listened to the sapient advice of my colleagues on the Committee, and I beg to ask leave to withdraw the amendment.

Clause 25

Clause 26

Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 135, page 18, line 38, leave out from ‘things)’ to end of line 39.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss Government amendments Nos. 142 and 137

Tony McNulty (Labour, Harrow East)

Welcome back to our deliberations, Mr. Bercow. The start of my little speech states that we have grouped these amendments together because they relate to the treatment of a single offence. That is not meant to be a discourtesy to the House: we are happy that the House has grouped these amendments together, with advice or otherwise. Nevertheless, they relate to the treatment of a single offence under section 113 of the Anti-Terrorism, Crime and Security Act 2001, as it appears in the various lists of offences in the Bill. That section makes it an offence to use noxious substances or things to cause serious violence or endanger human life or public safety, to influence or intimidate the Government or the public. That is an offence where the conduct takes place in the United Kingdom but also, by virtue of section 113A and subject to some conditions, overseas.

Amendment No. 135 makes post-charge questioning for the section 113 offence possible, irrespective of whether the conduct relating to the offence took place in the UK or overseas. Under the previous version of the clause—that originally tabled by the Government—a person charged with an offence under section 113 could be questioned about that offence post-charge if the criminal conduct took place overseas, but not if the offence was committed in the UK. That clearly is not a condition that we would want to prevail. Under the amendment, post-charge questioning will be available when the conduct constituting this offence took place in the UK as well as abroad.

Similarly, in relation to the list of offences triggering the notification requirements in clause 39, under amendment No. 142 the notification requirements will attach following a conviction and appropriate sentence for the section 113 offence, whether it was committed overseas or in the UK. Finally, Government amendment No. 137 removes the reference to section 113 of the 2001 Act from schedule 2 to the Bill. That schedule lists the offences for which the court in England and Wales or Scotland must consider whether there is a terrorist connection triggering aggravated sentencing and the notification requirements, which is germane to the next set of amendments.

The section 113 offence is being removed from this clause because, by virtue of amendment No. 142, the notification requirements will automatically apply following a conviction for the offence, so no determination of the terrorist connection is needed. Furthermore, as the section 113 offence is a terrorism offence, it will already be subject to a sentence which recognises that fact, and thus will not need to be considered for an aggravated sentence. In effect, amendment No. 137 is a consequence of the other Government amendments. That is eminently straightforward, and as clear as anything, and I commend the amendments to the Committee.

Dominic Grieve (Conservative, Beaconsfield)

The amendments do not present huge difficulties. While we are about it, perhaps the Minister would like to consider, and if necessary write to tell me, what a noxious thing as opposed to a noxious substance is. It would be useful. The very first Bill I ever considered in Committee was the Public Processions (Northern Ireland) Bill and it contained a prohibition on playing a musical or other instrument. We had a very interesting discussion about what another instrument might be, without engaging in prurient speculation. The wording was deleted from the Bill—we were left with musical instruments and not other instruments—which was the first time that I ever succeeded in getting anything deleted. I should therefore be grateful if the Minister could tell me what a noxious thing is and how it differs from a noxious substance.

Tony McNulty (Labour, Harrow East)

I can assure the hon. and learned Gentleman that if it transpires that it is as irrelevant as the item in that Northern Ireland Bill I shall happily—I am in the mood, as the Committee has already seen this morning—accept an amendment from the Opposition deleting the phrase “noxious thing”. The full extent of what it adds to our knowledge and to the 2001 Act may well be utterly redundant, but I suspect that that is not the case. I cannot off the top of my head think of a noxious thing that is other than a noxious substance. But these little tests are sent to try us. If I do get inspiration—if it is afforded during our deliberations—I will, of course, let the Committee know. Otherwise, I shall welcome with open arms the hon. and learned Gentleman’s amendment. For now, however, let us leave “noxious thing” in the 2001 Act, and the references to “noxious thing” in the Bill. I shall scurry away, do my homework and inform the Committee in due course whether there are noxious things that are other than noxious substances.

David Heath (Liberal Democrat, Somerton and Frome)

I have a suggestion: a pathogen would not be a noxious substance.

Tony McNulty (Labour, Harrow East)

Funnily enough, having recently dealt with a couple of statutory instruments on pathogens, I am pretty sure that a pathogen is not a substance, in law at least. I am therefore with the hon. Member for Somerton and Frome, but if any Committee member can correct me, I shall duly give way to them.

As I said earlier—the hon. Member for Newark was absent but he would have been delighted had he been here—given that we do not want undue specificity, the assumption is that there are things that are noxious that are not substances. I fear that I shall not go down the Lambeg drum route that I am provoked into, but if all these things are covered by “substance”, then I shall do the Committee’s bidding. However, I think that the pathogenic hon. Member for Somerton and Frome is entirely right, and that there are things that are not substances but are noxious.

Patrick Mercer (Conservative, Newark)

I wonder whether the Minister thinks that this is a canard.

Tony McNulty (Labour, Harrow East)

I am not sure whether a canard is substantial or is simply a thing, but I did mention canard earlier, when I said that the hon. Gentleman and I have long experience of considering Bills. I am sure that he has his bingo card, and has duly ticked off “canard”. Had he been here this morning—I am sure that he had his reasons for not being—he would have ticked off “undue specificity”. I have another little list, and I am sure that towards the end of our deliberations he will be able to shout “Bingo!” and wake the rest of the Committee up.

On a serious note, if “noxious thing” adds to the coverage of that part of the 2001 Act, as I think it does, we should let it lie. However, I shall consider the import of what the hon. and learned Member for Beaconsfield suggests, and if the term does not add anything, I shall come scurrying back to the Committee or the House with a suitable amendment to expunge the irrelevancy from our legislation.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 26, page 19, line 11, at end insert—

(e) the common law offences of murder, manslaughter, culpable homicide, kidnapping or abduction, in relation to an offence listed in subsection (1) above.’.

The amendment relates to the specificity of clause 26, which lists an awful lot of offences that have the meaning of a terrorism offence for the purposes of certain sections of the Bill. However, the list does not accord with the list of offences in schedule 2 for which a terrorist connection is to be considered. I understand that the lists are for different purposes, but this is a probing amendment to discover from the Minister why the common law offences listed in my amendment are omitted from the clause. Those offences can clearly be related to terrorist offences, and we would expect post-charge questioning to be pursued for such offences if they were relevant to the facts of a case. I am sure that there is a good reason for that, but I should like to know what it is.

Tony McNulty (Labour, Harrow East)

The hon. Member for Somerton and Frome is entirely right that the clause does not include the definitive list from the previous two Acts, but that is not for the reason suggested. Most of the common law offences in his amendment are already covered, because the court will dictate that they are terrorism-related, and that is enough for them not to be on the list. Any common law offence that the court duly decides is terrorism-related will be included, so we do not need the list that he proposes.

The hon. Gentleman is astute, and will know that there are some minor offences in those previous Acts that we do not regard as appropriate for post-charge questioning, such as refusal to leave a cordoned area on the instruction of a police officer. The amendment is unnecessary, because the Bill already allows for questions about other offences in England, Wales and Scotland when a court confirms that they are connected to terrorism.

David Heath (Liberal Democrat, Somerton and Frome)

I entirely understand that point, but my difficulty is that the court will not be able to provide such confirmation until the person is put before it. Without judicial supervision of post-charge questioning, the person will not be before a court when the determination is made about whether post-charge questioning is legal.

Tony McNulty (Labour, Harrow East)

Once charged, the individual is effectively under the protection of the court, so those charges, duly laid, will reflect the offence, and at that stage, if it is murder and connected with terrorism, there is provision for it to be made clear on the charge sheet. In England and Wales, if a judge made an order under section 29 of the Criminal Procedure and Investigations Act 1996 for a preparatory hearing to be held on the basis that the offence was connected to terrorism, post-charge questioning would be possible. Those hearings automatically take place when an offence carries a maximum sentence of more than 10 years, which is certainly true of murder. I am assured that under the 1996 Act and provisions in the other Acts, common law offences, when linked to terrorism, can and should be duly considered under clause 26 of the Bill without there being a broad and extensive list of any potential common law offence that might or might not be attached to, or have, a terrorism dimension.

We are right to get rid of the minor offences in the 2006 Acts, simply because to put them in the context of post-charge questioning would not elicit much further information. I take the hon. Gentleman’s point about judicial scrutiny, but we have let it lie and will return to it at a subsequent date. I hope that that satisfies him and that he can withdraw his amendment.

David Heath (Liberal Democrat, Somerton and Frome)

Up to a point. I am grateful to the Minister for his response. As he said, we have agreed to let lie for the moment the question of judicial supervision, which made it all the more surprising that he appeared to suggest that judicial supervision was the answer to my conundrum about how we deal with post-charge questioning when the court has not yet considered whether the offence has a terrorist connection.

Tony McNulty (Labour, Harrow East)

I was referring to no such thing. That, in the words of the hon. Member for Newark, is an utter canard. I did not give way on judicial oversight at all in terms of post-charge questioning. We will come back to the matter, as I have said, and I look forward to it.

David Heath (Liberal Democrat, Somerton and Frome)

I thought that I used exactly the expression that the Minister used: that we had agreed to let the matter lie for the moment. That is why it came as some surprise when he gave it as his explanation—it would appear to me—as to how to define a common law offence with a terrorist connection: that it would be determined by the court when the person involved had not been put before the court at that stage, unless we were in the circumstances of judicial supervision of post-charge questioning. I hope that we will return to that matter and that he will accept that it has a place in the debate.

The list of common law offences is not long, and it would not be the end of the world if that short list, which is the same as the list that uses up only five lines in schedule 2, were in the clause. I accept what the Minister says about the need to limit the provision in order to avoid the minor offences that might otherwise be caught in the schedule. That is common ground. There is no difference in what we expect to happen; my concern is simply that not considering the matter at this stage leaves a loophole—yet again—that we might need to fill. I ask him to consider that last point again. On that basis, I beg to ask leave to withdraw the amendment.

John Bercow (Conservative, Buckingham)

We come now to clause 27.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

On a point of order, Mr. Bercow, I noticed that you put the clause stand part question quite rapidly. It is just possible that I shall want to get to my feet when you put the stand part question on clause 27. Could you please put the question more slowly, so that I can get to my feet before the issue is closed?

John Bercow (Conservative, Buckingham)

I had not taken account of the right hon. and learned Gentleman’s sensitivities and sensibilities, but I shall do my best. I am certainly proceeding in accordance with custom and precedent.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Further to that point of order, Mr. Bercow, it was really just a polite way of saying that I hope that you might allow a short stand part debate on clause 27.

John Bercow (Conservative, Buckingham)

I am very much minded to do so.

Clause 27

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 166, page 20, line 17, leave out subsection (4).

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss the following: Amendment No. 168, page 20, line 18, leave out subsection (5).

Government amendment No. 136

Amendment No. 167, page 20, line 19, leave out subsection (6).

Amendment No. 126, page 20, line 19, after ‘offence’, insert ‘with terrorism connections’.

Dominic Grieve (Conservative, Beaconsfield)

These are probing amendments, so my right hon. and learned Friend might find that they facilitate a more general debate on the clause. The Committee will recollect that, in the course of our preliminary deliberations, we received evidence from the Lord Advocate, who provided a great deal of reassurance. She said that there was little anxiety among the Scottish Government about the clause, which was designed to facilitate trials taking place with maximum flexibility in relation to the United Kingdom. In her judgment, it was not intended to be used, and would not be used, to try to remove cases from Scotland or, for that matter, vice versa.

Nevertheless, we cannot simply allow clause 27 to pass without taking a closer look. When I look at the clause, two issues spring to mind, on which I would like a response from the Government. First, the clause lists a number of offences under the Terrorism Act 2000 that will be caught by the provisions, which will enable a trial to take place anywhere in the United Kingdom. For the most part, they did not cause a great deal of trouble, although I must confess that I was struck by the reference to

“section 51 (parking a vehicle in contravention of an authorisation or restriction)”.

I accept that that might have an intimate terrorist connection, but I am not sure that it is so serious—unless accompanied by other factors—as to be an area in which I would wish to depart from the ordinary rules on where a matter is tried. I flag that up with the Minister, and it would be helpful if he could provide an explanation, because the Government have been quite careful in selecting the provisions covered by the clause.

Secondly, it is also provided that the Secretary of State may by order amend the subsections to add to the list anything that he likes. I accept that that must be done through the affirmative procedure, but, as the Minister knows, I have a rather old-fashioned dislike of it partly because individual offences tend not to be put to the House to be added to a list. The chances are that we will get six or seven, one of which we might dislike, while having no problem with the remainder. In such circumstances, we can do nothing except vote against or in favour. Given that I would have expected the Government to have covered in the clause all existing terrorism legislation that they felt needed to be subject to this unusual provision, in reality nothing else should need to be added, except under subsequent legislation, which could be done without any problem by virtue of tabling the suitable consequential amendments.

I find subsection (6) somewhat surprising, because it purports to have a retrospective effect, and that might bother me more than any other part of the clause. I do not want to make too big a fuss about it, and on one level I can see that provisions already exist for offences to be moved from Scotland to England for trial under certain set circumstances, particularly in cases of conspiracy, for example. Nevertheless, we have two distinct legal systems and it could be argued properly that individuals are entitled to the protection of the legal systems under which they live and certainly to certainty under the law. That is different from the accused suddenly being told that even though the law did not operate at the time the offence was committed, they will be tried in a jurisdiction other than that in which the alleged offence was committed. Although I derived a great deal of reassurance from the Lord Advocate’s evidence, which removed much of my anxiety over the clause, it still seems to me that some issues need to be teased out.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I have only two observations. First, may I say to my hon. and learned Friend that although I recognise and share his dislike for the process of amending statutes by order, I very much prefer the affirmative to the negative procedure? He is entirely right that an order made under either is unamendable, and that is the great vice of using the procedure.

My second observation reinforced the point that my hon. and learned Friend made with regard to subsection (6). There is actually quite a significant point of principle here. He has mentioned retrospection, and of course it is entirely right that persons should not be subject to different sentences dependent on a law being applied retrospectively. That also applies to jurisdiction, because it is rather hard to say that a person can be tried in a jurisdiction that they could not be tried in unless the law was made retrospective. That will probably not happen in reality, because those classes of case will disappear with the passage of time, but there is an issue of principle here, and I have a strong degree of sympathy with my hon. and learned Friend’s point

Tony McNulty (Labour, Harrow East)

I am grateful to the hon. and learned Member for Beaconsfield for recognising that the Lord Advocate’s evidence was extremely useful for understanding these clauses. She gave a formidable and informative performance, which was one of the few saving graces of using the evidence sessions as a prelude to our deliberations, as I thought that she was very good. She said not only that the principal source of the amendment lies in concerns and anxieties north of the border, but that it was absolutely clear

“that the real priority here is the public interest, and terrorism in that context demands that we act closely together to ensure both the public interest and fairness for the accused.”——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 91, Q249.]

Clause 27 gives UK-wide jurisdiction for specific terrorism offences so that they can be tried in any part of the UK, as the Lord Advocate clearly stated, irrespective of which jurisdiction they were committed in. Hon. Members will know that London-Glasgow last summer was the source of some of the concerns raised about the clause. The clause applies to offences listed in subsections (2) and (3), which are offences under the terrorism legislation and the ancillary offences associated with those, such as conspiracy and incitement. The clause covers more minor terrorist offences, so that in some cases a person can be tried together with a linked defendant in another jurisdiction who might be charged with a more serious offence. When considering the core element of dual jurisdiction and where to try in the first place, those minor offences might bring in other defendants from another jurisdiction to the major offence and the major defendant in the principal jurisdiction. That is why some of the more ancillary and lesser charges are included.

It will be possible to prosecute terrorism cases in any part of the United Kingdom, irrespective of where they were committed. Rightly, however, under the principles of common law, a substantial measure of the criminal activity must have taken place in the UK for a court to take jurisdiction over an offence. The common law rule has been established for sensible reasons, and in the vast majority of cases it results in the court that is best placed to deal with the offence having jurisdiction. However, when cross-border situations arise, the rule might result in linked offences that happen in two different parts of the UK having to be tried in separate trials in different parts of the UK with an ultimately detrimental effect on bringing individuals to justice. That would be inefficient in that it would involve duplication of witnesses and evidence, a waste of resources and almost certainly less effectiveness than if the cases could be joined and tried together in the one jurisdiction.

The provision in the clause will be extremely helpful when, for example, in a single investigation there are linked defendants, one in Wales and one in Scotland, both of whom are found to be in possession of terrorist articles, which is an offence under section 57 of the 2000 Act. Each defendant could be tried only under separate jurisdictions as the common law rule would prevent a joint trial, no acts of the Welsh defendant having taken place in Scotland or vice versa. The provision in clause 27 will allow such cases to be tried by the same court.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I may be expressing an anxiety that is ill founded, but the right hon. Gentleman knows that in Northern Ireland there are Diplock courts, or trial by a single judge. Is it possible under the clause for people who are normally resident in Scotland or England and Wales, where they would normally be subject to trial by jury, to be transferred to Northern Ireland and face trial by a single judge for a terrorist-related offence?

Tony McNulty (Labour, Harrow East)

That is an entirely fair point, but not so, as I understand it—if someone to the left of me falls off their chair I will have misinformed the right hon. and learned Gentleman. The provision covers principally England and Wales, and Scotland, but if I am wrong, I will happily stand corrected.

There are already examples of legislation that enables prosecutions to take place in any part of the UK. The Criminal Procedure (Scotland) Act 1995 and the Customs and Excise Management Act 1979 include such provisions. Amendments Nos. 126 and 136 would clarify the scope of clause 27 by limiting the purpose of UK-wide jurisdiction to dealing with terrorism.

Government amendment No. 136 makes it explicit that an offence can be added to the list only if the Secretary of State believes that it is necessary for the purpose of dealing with terrorism. The order-making power could not be used to create UK-wide jurisdiction for offences that are not related to terrorism. Clearly—this is almost a rerun of our previous deliberations—there can be and will be ancillary and precursor activities and offences that seem not to have anything to do with terrorism, but do.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I might be wrong, but the United Kingdom includes Northern Ireland.

Tony McNulty (Labour, Harrow East)

Yes, of course it does.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

In which case, if part of a terrorism offence occurred in Wales and the bulk of it occurred in Northern Ireland, surely the right hon. and learned Gentleman’s scenario is reasonable and could happen under the Bill.

Tony McNulty (Labour, Harrow East)

That may well be the case in terms of the jurisdictional point. My concern and hesitation was on the point about the juryless element and Diplock, and where we are in dismantling that paraphernalia as well as the security and terrorism paraphernalia and legislation in Northern Ireland consequent on the peace process. The Committee will know that as part of the peace process and embedding devolutions in Northern Ireland, we are seeking to unpick all of the emergency legislation that prevailed regarding terrorism and security, including using the Bill to do so. We are also, as we already have in at least one regard, taking measures that were relevant only to Northern Ireland and making them UK-wide provisions because they are useful for the wider threat that we now face. If I have confused people, I apologise, but it was on the point about juryless trials that I was unclear; the broader issue of Northern Ireland’s jurisdiction being within the United Kingdom I happily accept as a matter of fact.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The right hon. Gentleman will remember that right at the end of last year, there was the case of Hoey before Mr. Justice Weir, which concerned the Enniskillen bombing. That makes the point that the single judge is still operating without a jury in Northern Ireland. Unless something has happened in the last three or four months of which I am unaware, there are still judge alone trials.

Tony McNulty (Labour, Harrow East)

That is the point that I am not clear on. I am not sure whether we have already started to disestablish, or whatever the phrase should be, that particular paraphernalia. It might be that precisely because the case involved Enniskillen, an horrendous atrocity of so long ago, it still pertained to the old system, and a new system has come in. The jurisdictional point is well made, but if the push from hon. Members is that including Northern Ireland should not include the juryless element—whether or not a substantial part of the offence took place in Northern Ireland—I am happy to take that back, and I think that I would absolutely agree.

Dominic Grieve (Conservative, Beaconsfield)

I would be grateful if the Minister would do so because an amendment needs to be inserted to say that the movement, this UK-wide jurisdiction, shall not be used for the purposes of depriving a person of the benefit of trial by jury. That would solve the problem. Such an amendment need not exclude Northern Ireland specifically because indeed, some Northern Ireland cases could be transferred here, for example, but it is a very important issue.

Tony McNulty (Labour, Harrow East)

I would agree. Doubtless, if I do not say so someone else will: given the concerns about the potential retrospective nature of part 6 and the substantial offences and activities that have been committed in Northern Ireland, that point becomes all the more important. It is certainly not the Government’s intention, by sleight of hand or otherwise, that any case under England and Wales or Scottish jurisdiction that had a remote Northern Ireland connection should be thrown over the Irish sea to be dealt with by Diplock courts. I will get clarification on that and hopefully write to the Committee before our proceedings end.

David Heath (Liberal Democrat, Somerton and Frome)

On a different and minor point, which I hope the Minister will not feel is completely irrelevant, I wonder whether the Government have had any discussions with the Governments of the Crown territories within the British Isles regarding reciprocal arrangements for jurisdiction in the Isle of Man and the Channel Islands. It seems entirely possible that terrorism could be aimed at UK interests in the Channel Islands, presenting a difficulty with jurisdiction that is not entirely covered by the clause dealing with offences committed outside the UK.

Tony McNulty (Labour, Harrow East)

The hon. Gentleman is entirely right and his point is not completely irrelevant. It is a perfectly fair point and one that I will explore, but I would think that in most instances, without offending anybody in the Isle of Man or anywhere else, in a dispute over jurisdiction between a Crown territory and any of the UK jurisdictions, the dominant UK jurisdiction would prevail for legal, practical and other reasons. I know that there has been discussion, but I am not sure whether we have reciprocity to underpin what we are trying to do here in cross-jurisdictional bases.

The hon. Gentleman’s point is fair and moot, albeit minor; I would not go so far as to call it irrelevant, but if a significant element of a terrorist case in Northern Ireland, Scotland or England and Wales was under Isle of Man jurisdiction, which is perfectly feasible, I find it difficult to believe that such a case would not be taken to trial by the senior jurisdiction, especially if it was a serious case. I say that without offending anyone in the Crown territories. However that is a fair point and I will explore it and get back to the Committee.

Amendment No. 126 and Government amendment No. 136 seek to do the same thing, but on balance, in limiting it to dealing with terrorism, the Government amendment does that better. For that reason, and with all due humility, I cannot accept the amendment tabled by the hon. and learned Gentleman.

Amendments Nos. 166 and 168 would remove the ability of the Secretary of State to amend the list of offences for which there will be UK-wide jurisdiction. Unless the Committee tells me otherwise, I think that we have covered that pretty well.

I will take away the points that were made entirely fairly about the retrospective nature of subsection (6). I think that the right hon. and learned Member for Sleaford and North Hykeham—not for Sleakeham—is entirely right when he suggests that such cases will be very rare and that there may be no need for the provision at all. It is put in there to cover all eventualities, given the serious nature of these offences. I appreciate the point of principle involved and the Government’s intention was not to open up retrospectivity as a more general point. If hon. Members have alighted upon a more sinister import, I will come back to them in all due humility. However, I do not think that there is. I think that incorporating that is a belt and braces element in trying to create cross-jurisdictional clarity.

I ask the hon. and learned Member to withdraw the amendment, and I would like Government amendment No. 136 to prevail over amendment No. 126.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful that the Minister has taken on board the anxiety that has been expressed that we should not facilitate trials without juries and for the assurance that he will look at that. In conclusion, I slightly reserve my position on subsection (6). I continue to have anxiety about the retrospectivity of these provisions. It may, as my right hon. and learned Friend the Member for Sleaford and North Hykeham rightly said, prove to be entirely academic because it is hoped that such a case will not arise. However, I think that people are entitled to the benefit of the jurisdiction in which they commit their offences. If Parliament is going to remove that, to do so retrospectively is a slightly dubious procedure. I shall reflect on that and I beg to ask leave to withdraw the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 50, in page 20, line 20, at end add—

‘(7) Where this section applies to an offence committed in Scotland, proceedings may only be taken in another part of the United Kingdom following consultation with, and with the consent of, the Lord Advocate.’.

I agree with the view expressed earlier in Committee that the evidence of the Lord Advocate was extremely useful. I think that that was one of the most useful parts of the evidence taking sessions that we had.

Mr. Hogg rose—

David Heath (Liberal Democrat, Somerton and Frome)

I freely admit that his evidence shot a fox as far as I was concerned. I was clear that this was the big, bad Home Office doing awful things to the Scottish jurisdiction and it quite clearly was not.

John Bercow (Conservative, Buckingham)

Order. I say very gently to the right hon. and learned Member for Sleaford and North Hykeham that in seeking to intervene, one asks the person on his or her feet whether they wish to give way. It is not usual practice for a Member simply to stand and by the fact of asserting his or her presence to seek to intervene.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

You misunderstand me, Mr. Bercow. I was seeking to intervene, but only at a time convenient to the hon. Member for Somerton and Frome. I did not want to interrupt his flow, merely to indicate that at his convenience I would be grateful if he did give way.

John Bercow (Conservative, Buckingham)

Order. Perhaps I can make the position clear once and for all. There is a method of intervening and that method applies to every single Member of the House. With the greatest of respect, I do not need the right hon. and learned Gentleman to explain to me that I have somehow misunderstood him. There is a way of going about these things. I am simply gently saying to him that he should do it in the way that everybody else does.

David Heath (Liberal Democrat, Somerton and Frome)

My flow is eminently interruptible and I am delighted to give way to the right hon. and learned Member for Sleaford and North Hykeham.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My desire was simply not to interrupt the hon. Gentleman in mid-flow. That was my very modest reason for getting up as I did. Would he agree with this proposition? It is certainly the case that the Lord Advocate’s evidence was extremely valuable. One of the problems that affects Bills of this kind where we are dealing with Northern Ireland and Scotland, is that often we do not have the opinion of the relevant authorities within each part of the United Kingdom. It would be a jolly good thing if as a general rule we could have advice, for example, from the law enforcement agencies of Northern Ireland in respect of that part of the Bill that touches on Northern Ireland when there are no Unionist or Northern Ireland representatives.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful to the right hon. and learned Gentleman for that intervention.

Tony McNulty (Labour, Harrow East)

As far as I am aware, because I take the hon. Gentleman’s point, through the usual channels and in the usual fashion the Conservative party was asked if one of their Members would stand down in lieu of a Democratic Unionist party representative. As we see, that request was not greeted with any equanimity.

David Heath (Liberal Democrat, Somerton and Frome)

I do not want to get into discussions between the usual channels. I simply want to record my gratitude to the Lord Advocate. I think it was my request initially for her to attend and give evidence. I thought that she gave evidence extremely well. As I said, she put to rest my concern that this was being done unilaterally to the Scottish jurisdiction rather than at its instigation, which was clearly the case. That was useful.

Taking forward the point made by the right hon. and learned Gentleman, very often I am concerned when we are dealing with criminal justice matters in this House affecting Scotland that we do not have the benefit of colleagues from Scotland to give their advice. I appreciate that we have one Member from a Scottish constituency on the Committee, but he is the only one. There was a time when it was normal to have a Scottish Office Minister present on a Bill like this to deal with the issues relating to Scotland. I do not criticise the Government for this because since devolution many of these matters are dealt with by the Scottish Executive. I understand that entirely, but it means that we have to take particular care when we are dealing with the Scottish or the Northern Irish jurisdictions to make sure that we understand what the issues are and get them right.

Although my mind was put at rest as far as the general case that there was agreement across both sides of the border that what is set out in this clause was an advantage, my one remaining anxiety is about what might happen if there were a disagreement. The Lord Advocate was very generous in her comments about her relationship with the prosecution authorities in England and Wales and said that she got on extremely well with the Attorney-General, the Solicitor-General and the Director of Public Prosecutions and that they had no reason to find themselves at odds. Nevertheless, it is conceivable that this Lord Advocate, or a future Lord Advocate might have a difference of opinion with this Attorney-General or a future Attorney-General as to whether these powers should be invoked in a specific case.

I respect the separate jurisdiction in Scotland, which has managed to maintain its differential over the long years of the Union of the Crowns and the Union of Parliaments. Given the specific differences in the system that exist, which I would defend under any circumstances, just as I defend our right to have our common law system instead of any form of merger with any European or continental model or jurisdiction, we should have respect for the Scottish jurisdiction and be able to say that this should be done with the consent of the Lord Advocate. In any case, I do not think that that would not be forthcoming. Simply as a courtesy—a bow of the head to the Scottish jurisdiction—it is right that the Lord Advocate should be consulted and that she should give agreement.

That view is strongly held by lawyers north of the border, as reflected in the advice from the Law Society of Scotland, for instance. I cannot remember whether I had a letter from the Faculty of Advocates on the subject, but I suspect that that would be its view as well. It seems a minor courtesy to write such a requirement into the Bill, and I hope that the Minister will accept the amendment. It would not in any way reduce the effectiveness of the Bill. It would simply provide a safeguard so that if there were a dispute at some stage in the future, at least there would be a way of resolving it or recognising that there was a difference, rather than England and Wales simply bullying their way forward at the expense of the Scottish jurisdiction.

Dominic Grieve (Conservative, Beaconsfield)

I am not unsympathetic to what the hon. Member for Somerton and Frome has done in amendment No. 50, and if this debate had taken place without the benefit of the Lord Advocate’s evidence, I would have been minded to support him if he had put his amendment to a vote. I also accept that the amendment is relatively innocuous.

However, what struck me so forcefully in the Lord Advocate’s evidence to the Committee was the extent to which she was entirely comfortable with the conventions that operate currently. As a Conservative, I am a great believer in conventions, which do not have to be written down. When I saw the extent of her sense of comfort—she is, after all, the Lord Advocate advising a Government who now have a nationalist viewpoint—I began to conclude that I was worrying about nothing.

If the working relationship that clearly exists between her office and that of the DPP and the Attorney-General is as good as it appears to be—we heard nothing to suggest otherwise—it seems that this matter is capable of being resolved through those informal relationships, which are, of course, the foundation of our constitution.

Therefore, on balance, although I fully understand why the hon. Gentleman tabled the amendment, I think that if the Lord Advocate does not want it—she is the person best placed to decide whether it is needed—it probably is not needed.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I use this debate to raise a question with the Minister as to what happens if there is a disagreement between law enforcement agencies in different parts of the United Kingdom? Let me postulate as an example a person held in Northern Ireland whom it is desired should be tried in England—the CPS or the DPP wants to try them in England—but whom the law enforcement agency in Northern Ireland does not want to transfer. The same thing could apply to Scotland or Northern Ireland. Is there any procedure in place or any laws that deal with that question? How does one resolve such a disagreement when it arises, if it arises?

Tony McNulty (Labour, Harrow East)

I do not think that I can usefully add much to what the hon. and learned Member for Beaconsfield said. The current Lord Advocate draws comfort from existing arrangements not because she gets on famously with our current Attorney-General and Solicitor-General, although they have a good relationship; the comfort comes as much from the experience and conventions that the hon. and learned Gentleman referred to and the fact that, as both chief prosecutors act in the public interest, sufficient protection is already provided. I am with the hon. and learned Gentleman: the convention works not simply because a couple of pals get on together, but because it has worked historically. She also made it clear that, notwithstanding terrorism, cross-jurisdictional issues are not new—they had occurred and been dealt with under common law. She quoted, I believe, an example of credit card fraud with roots in Scotland and its link to a drugs ring in Liverpool. We are clear, not least because of the heightened regard that both legal officers, whoever they are, would afford to public interest and protection, that things work very well as they are. On the principle—it is probably not a Conservative principle—that if it ain’t broke, don’t fix it, we are in a reasonable position notwithstanding what clause 27 will add to the relationship.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I rather feared that the Minister was going to conclude his remarks without responding to my perfectly genuine query. What happens if there is a disagreement, as between respective law enforcement agencies? Is there a procedure and are there laws for the resolution of that disagreement?

Tony McNulty (Labour, Harrow East)

I do not think that there is a formal legal resolution procedure other than broad protocols rooted in the sort of conventions and experiences to which the hon. and learned Member for Beaconsfield referred. That is not a namby-pamby answer. Rooted in experience thus far, they will prevail. At its most mechanistic, one could apportion the seriousness of what happened in what jurisdiction and weigh accordingly which was the dominant. I do not think that senior law officers in the UK act in that fashion. The protocols and the experience thus far tell us that such problems will be overcome. I accept that it is a perfectly genuine inquiry, but I do not think that a procedure should be locked in—not least for the same reasons that I do not want the amendment—some mechanistic, formal and formulaic statutory requirement, given the flexibility and complexities of such cases which, we should be clear, will be relatively few and far between, as the right hon. and learned Gentleman suggested.

Russell Brown (Labour, Dumfries and Galloway)

I live close to the border of England and Scotland and I can assure the Minister that, on the information that I have, there is a close working relationship on both sides, and not only in the border locality. It goes far wider: I am aware of many drugs-related activities over which there has been excellent co-operation to ensure that those who are out there contravening laws in this country are brought to book. The law enforcement agencies appear to work well together; the judiciary may be something different.

Tony McNulty (Labour, Harrow East)

I am grateful to my hon. Friend. When the Lord Advocate was before us, the hon. Member for Somerton and Frome teased out of her the fact that clause 27 emanated from the Scottish Law Officers, and shot his own fox in the process. As the hon. and learned Member for Beaconsfield said, the Law Officers are entirely comfortable with the measure, not because of a personal relationship, but because of the institutional relationship, to which my hon. Friend the Member for Dumfries and Galloway referred, and the relationship between the two offices over time. Therefore, the Liberal Democrats’ amendment—I do not say this terribly frequently—is entirely irrelevant. I would ask the hon. Member for Somerton and Frome—I would ask his hon. Friend the Member for Carshalton and Wallington too, but he is not here—to gracefully withdraw so that we can move on.

David Heath (Liberal Democrat, Somerton and Frome)

If I understand the Minister, the reasons why we should not have a provision to require consultation and consent from the Lord Advocate are that consultation always takes place with the Lord Advocate and she gives her consent, and that the amendment would therefore place an onerous duty on both officials to secure such consultation and consent, irrespective of the fact that that already happens. There is no prescription in the amendment for a checklist or questionnaire or anything else; it is simply a statement of what the Minister has assured me is already the case.

Dominic Grieve (Conservative, Beaconsfield)

I have no wish to defend the Minister, but that is not quite what he said. It was not that the Lord Advocate always gave her consent. It was that she never had any difficulty reaching an agreement with her counterparts in England. In some cases, it could even work the other way, or it could be that consent is not given. I was very struck by the fact that she indicated that it had never been a problem.

David Heath (Liberal Democrat, Somerton and Frome)

Which, I think, repeats my position. The fact that it has never been a problem suggests that either consent is given, in which case it happens, or consent is not given, in which case it does not happen. That means that my amendment would make no difference to the arrangements unless there was a difference of opinion, which none of us foresee in the near future on the evidence of the Lord Advocate—certainly with the present incumbents and with the present protocols in place. We must assume that the good relationships will last, that the incumbent will stay in place with the new administration in Scotland, that her successors will take exactly the same view and will be as co-operative as she clearly is, and that for the lifetime of this statute, there will not be a dispute. Therefore, there is no need for any resolution to provide the consent. That is the argument that I have heard against my eminently reasonable and modest suggestion. [Interruption.] The Minister tells me that that is not the argument.

Tony McNulty (Labour, Harrow East)

As I made it very clear—I do not wish to prolong the point—the Lord Advocate took comfort in the prevailing position, not simply because of her relationship with the individual who happened to hold the post of Attorney-General in England and Wales, but because of the protocols that will be in place and because of the experience and conventions that the hon. and learned Member for Beaconsfield referred to earlier and how successfully they had worked to mutual benefit. That is a bit more than saying that she has either been steam-rollered or that consent has always been forthcoming, so there is no harm in adding this amendment. This amendment—I am loth to say that it is vacuous—adds nothing to the prevailing relationship. The prevailing relationship is so strong not because of the Baroness Scotland and Elish Angiolini, but because of the posts that they occupy and the raison d’être of those posts as chief legal prosecutors looking after the public interest and public safety. That is where the comfort comes from; all of that and not just the relationship.

David Heath (Liberal Democrat, Somerton and Frome)

We have a personal relationship as well as protocols and public interest that allow for consultation and consent, but the provision that requires consultation and consent is otiose.

Dominic Grieve (Conservative, Beaconsfield)

The other reason why I happen to think that the amendment is unnecessary is because in reality, if there were a conflict, I do not think that there is any way in which the Government at Westminster could require the Scottish Executive and the Scottish legal authorities to surrender an individual across the border for the purpose of trial. Its separate legal system, which is enshrined in the Act of Union and preserved in devolution, would not allow us to do it. Also, if there were a breakdown in the relationship, which has apparently been operating very well for a very long time, nobody could impose their will on the Lord Advocate if she were to say, “I am terribly sorry, but this person is going to be tried in Edinburgh or Glasgow.”

David Heath (Liberal Democrat, Somerton and Frome)

I do not like disagreeing with the hon. and learned Gentleman, but if a prisoner were held in Glasgow or Edinburgh, that clearly would be the case. There would be no question of surrendering a prisoner to stand trial in Preston or Derby. However, if the person was held in the English and Welsh jurisdiction and part of the case against that person was that he had committed offences in Scotland, this provision gives a jurisdiction to the English court to hear the cases committed in Scotland under Scots law. That is what this provision says. If, in future, the Lord Advocate felt that it was in the public interest in Scotland for those cases to be heard under Scots law in Scotland, there is nothing she could do about it other than to invoke the protocols that are in place, which would have no statutory basis.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

It is at least possible, is it not, that the Lord Advocate might conclude that the interests of justice, that is to say the protection of the defendant, might require that defendant to be tried in Scotland, not least because there is a not proven verdict in Scotland? I can conceive of circumstances in which, trying to safeguard the interests of the defendant, one would say that the defendant had a better chance of a favourable outcome by being tried in Scotland than being tried elsewhere.

David Heath (Liberal Democrat, Somerton and Frome)

That is indeed the case. There is the further complication that it is quite clear that post-charge questioning will not happen under a Scottish jurisdiction, whereas it will in England and Wales. That was the clear evidence we were given. I think it is a good thing that it should happen, but there is nevertheless that difference between the systems. There might be a conclusion in the interests of justice on that basis.

I do not wish to prolong this any further. I think we have explored the issue, but I find the position adopted by the Minister—and, it would seem, though I regret it, by the hon. and learned Member for Beaconsfield—to be a flawed position. I think that this is a minor safeguard for circumstances that we cannot foresee, but which could cause considerable difficulty between the two jurisdictions at some stage in the future, unless it is resolved. I may come back to it on Report, but for the moment I beg to ask leave to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

You have been good enough to allow a fairly broad debate on the two groups of amendments, Mr. Bercow, so I can be much more brief than I had planned. The issues here are of some interest and, indeed, of some importance. I can summarise them very briefly because they have been much canvassed in the recent debate.

It would be helpful if the Minister could give a somewhat fuller statement of the circumstances in which it is likely that somebody would be moved from one jurisdiction to another for the purposes of trial. He has, quite fairly, identified instances where there are linked offences, and I can well understand that linked offences would justify an application for transfer.

There are other situations that I would like to explore with him. For example, is it intended to use the transfer provisions for the convenience of witnesses where all or most of the witnesses are in one part of the United Kingdom? Is that a consideration that comes into play? There is also, and differently, the possibility of prejudice. Let us, for example, remember the Enniskillen bombing. I could conceive that defendants might wish to be tried in England or Wales, or indeed Scotland, rather than in Northern Ireland, after an offence of that kind. Is it intended that these provisions shall be used in order to make a transfer where it could be deemed that it would be difficult for a defendant to get a fair trial?

The Minister has, as I understand it, changed his position on the question of Diplock courts. I understand him to say that he accepts that if there is a possibility of a person being tried without a jury as a result of the use of these provisions, steps will be taken, either by statutory language or otherwise, to ensure that nobody is deprived of a jury trial in a terrorist-related matter. I welcome that, and I hope that the Minister will make that position quite plain.

My next point flows from what the hon. Member for Somerton and Frome was saying about the value of the Lord Advocate’s evidence. He is of course entirely right. There may be very good reasons why it is not possible on a Committee of this size to have a fuller representation from the other parts of the United Kingdom. I understand that. It is a big Committee, but it may not be big enough for that purpose. Might I, however, suggest to the Minister, who has greater influence on these matters than do I, that, as a matter of general principle, where one is legislating in a way that affects the separate parts of the United Kingdom, and where, as is inevitably the case, all of us—on this Committee or on a similar Committee—have but limited experience, we invite the law enforcement agencies, for example, to give their opinion, in the first instance in writing, on relevant parts of the Bill, so that we do at least know the preliminary views. It might be proper to summon them to give evidence under Special Standing Committee procedures. But that is perhaps a wider issue. Will the Minister give that some consideration?

Finally, I welcome the Minister’s willingness to move on retrospection. My hon. and learned Friend the Member for Beaconsfield was right about subsection (6), but I have spoken about that already. There is an issue of principle, because people could be subjected to a less favourable trial than they might necessarily get in their country of usual residence. I made this point in an intervention on the hon. Member for Somerton and Frome. I have in mind the not-proven verdict, which of course is a more favourable position in Scotland than elsewhere in the United Kingdom. A Scottish defendant might well think it unfair to be transferred, by reason of retrospective legislation, to another country within the United Kingdom, because they would be deprived of the possibility of securing a not-proven verdict. If that was done retrospectively, there would be an important issue of principle. If he could give thought to that as well, I am sure that the Committee would be grateful.

Tony McNulty (Labour, Harrow East)

All of those are perfectly reasonable points. I think that I have said very clearly that it is not the intention of clause 27 to get terrorist suspects to Diplock courts in Northern Ireland. If the provisions need tidying up and strengthening to reflect that, notwithstanding what I said about not knowing fully whether we have started to dismantle the Diplock court arrangements in Northern Ireland, I shall come back to the Committee. It is a perfectly fair point.

I think that people are being unduly, but necessarily suspicious about the import and direction of subsection (6) on retrospectivity. I listened to the points, and shall try to provide a further explanation to allay the Committee’s genuine fears. It is not about a jurisdictional lotto—if I may use that phrase—or prosecutors touting around different jurisdictions trying to get the best case from their perspective, rather than that of the defendants. It is about terrorist offences and plots occurring in two jurisdictions. Clause 27 will be used only where a plot involves suspects in different jurisdictions.

A point was made about convenience for witnesses, but I do not think that that would prevail, save for the point that if the dominant elements of a plot require so many witnesses from a particular jurisdiction, it would probably imply that that is where the trial should take place in the first instance. However, there is a notion that a trial could take place in Glasgow, rather than London, simply because most of the witnesses are from Glasgow, even though at the time they were on a coach trip down to London, where the principal or core events took place, which would mean that the jurisdiction would rightly be London. Convenience in that sense is not the import or thrust of the clause.

A point was made about the fairness of being tried in one jurisdiction rather than another—the example of Enniskillen was given. Again, that was a perfectly fair point, but it has nothing to do with clause 27. The important points were those about jurisdiction raised by the Lord Advocate in her evidence. I can provide a very clear and sharp example, although I shall not go into too much detail, because I am not sure whether it is still sub judice—it might still be rattling along somewhere down the line. The example is London-Glasgow—to use the common parlance—by which I mean the events at Glasgow airport. The right hon. and learned Gentleman will know that they started in Haymarket with the two Mercedes-Benz cars filled with assorted paraphernalia, which happily did not go off. That is a clear case involving jurisdictional issues—happily, they were resolved. To be fair, that specific case, unusual though it was, prompted the Scottish and UK legal offices to look at clause 27 as a framework for dealing with such matters in the future. I repeat—I say this and something will happen in the next few weeks, although clearly I hope not—that it is very uncommon for something to be so starkly in two jurisdictions as that particular case was. That case prompted the activity. I think that I have clarified the example that was the precursor to clause 27 in the first place. I understand the points raised, although hopefully they are rather arcane and, although perfectly valid, such concerns will not stand up to further investigation in terms of retrospectivity. However, I will certainly explore the point about juryless trials. Clause 27 is not supposed to result in anyone faced with terrorist offences being put in front of a juryless court.

Clause 29

Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 76, in page 20, line 32, after ‘If’ insert

‘having regard to the material before it for the purposes of sentencing’.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss the following amendments: No. 27, in page 20, line 33, leave out ‘court’ and insert ‘jury’.

No. 128, in page 20, line 34, after ‘and’, insert ‘the jury’.

No. 129, in page 20, line 37, leave out first ‘court’ and insert ‘jury’.

No. 28, in page 20, line 37, leave out ‘determines’ and insert ‘is satisfied beyond reasonable doubt’.

Tony McNulty (Labour, Harrow East)

The amendment seeks to make it even clearer that a court in England and Wales, when considering whether an offence listed in schedule 2 is connected to terrorism, must do so only on the basis of open evidence presented by the prosecution and defence. That is the evidence that a court usually has before it for sentencing. The defendant will be able to challenge any evidence on which a terrorist determination is made, either during the trial or, if there is a guilty plea and the judge holds a Newton hearing where the defence and prosecution dispute facts of the case which would affect sentences, so as to decide the matter at that hearing.

It was always intended for that to be the case. There was never any suggestion in the Government’s proposal that a determination could be made on the basis of intelligence, or evidence withheld from the defence due to PII or other, lesser-status information, such as that contained in a pre-sentence report. However, we felt that we should make a slight amendment to the drafting so as to put the matter even more beyond doubt than it already was. That is the substance behind the amendment.

For completeness, it may be appropriate if I leave others to move their subsequent amendments, and I will reply to them all in due course.

John Bercow (Conservative, Buckingham)

Other hon. Members do not move amendments at this stage, but they can speak to them as they are part of the same group.

Dominic Grieve (Conservative, Beaconsfield)

I thank the Minister for his introduction and for his amendment, which was welcome. It did not cross my mind that it was intended for a judge to be asked to make his decisions without having any facts in front of him, but the amendment clarifies that point beyond any doubt.

These are probing amendments designed to look at the same issue, albeit in a slightly wider context. The Government said that the judge would make a determination. That determination may be made either in the course of the trial, because it would be the basis of the conviction, or it may be made on the basis of a guilty plea, in which case there may be the possibility of a Newton hearing. That raises two issues. The first is what would happen if, during the course of a hearing, the Crown’s case alleges that something is an aggravated offence because it is connected to terrorism. If that issue is in contention, are we to assume that, in certain circumstances, juries will be asked to return special verdicts indicating whether or not they consider it to be terrorist connected?

Secondly, as the Minister will be aware, currently, the judge on his own determines if there is to be a Newton hearing. No jury is empanelled to decide whether there is a terrorist connection; it follows very normally in a pattern of determinations made by judges sitting on their own. I have participated in many Newton hearings. The judge hears evidence and submissions such as the prosecution and defence wish to put forward and makes up his mind about the matter. Moreover, I recollect that he makes up his mind effectively on the balance of probabilities and not beyond reasonable doubt.

On the whole, the Newton system has worked perfectly well. Equally, I have participated in trials where a major issue of fact has been resolved by the judge asking a special question of the jury when it comes to return its verdict—“Is it on basis A or basis B?” Judges, on the whole, do not like doing it but if they are forced to do it, they will do it.

One of the issues that we must consider here is that the introduction of a terrorist element is making not some minor difference but a colossal difference to sentencing. One only has to look at the sentences now being imposed, very properly, on individuals who although they have not killed anybody, have nevertheless been engaged in conspiracies with a view to killing people—although often conspiracies in a very early stage—to see that they have ended up with discretionary life sentences and 40-year terms being prescribed. Therefore, particularly with the way that the Government are widening the scope of the aggravated offence, it is possible to envisage circumstances where somebody coming before the court on the sort of offence that might first appear to be very minor indeed—the sort of thing that might attract six months’ imprisonment—might go to prison for five, six or more years, once the terrorist connection is established.

The Committee has to consider how we reach the decision in such cases and whether the decision should be given to juries in the Newton hearing and not to the judge on his own. Alternatively, how will juries be asked to deal with these issues, if there is the possibility of them returning a verdict that might be “Yes, he is guilty of this but it has no terrorist connection” or “He is guilty and there is.”

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am trying to identify my hon. and learned Friend’s position. Let us take a plea of guilty that is to be dealt with by the single judge—the jury not having been empanelled. Is my hon. and learned Friend suggesting that in such a case a jury should be empanelled, as it were, on a Newton hearing to determine whether or not the offence is terrorist related?

Dominic Grieve (Conservative, Beaconsfield)

These are probing amendments, but yes. If we were to have a jury on a Newton hearing, we would have to empanel the jury in rather the same way as one empanels a jury to decide if somebody is insane—in order to determine on the facts whether it was a terrorist-related matter. That is one issue. I was raising another issue, which is about the mechanism in a jury trial where an allegation is being made of a terrorist connection. How does one go about dealing with that in terms of the jury being able to indicate if it concludes, having heard all the evidence, that there is no terrorist connection?

David Heath (Liberal Democrat, Somerton and Frome)

I am listening carefully to the hon. and learned Gentleman’s arguments, which, as he knows, are similar to the ones that we had hoped to deploy in this group. In the circumstances where he envisages a jury establishing whether there is a terrorism connection, what standard of proof does he believe would be appropriate? I notice that he has added his name to our amendment No. 27 but not to our amendment No. 28. Does that suggest that he is happy with a balance-of-probability test on the part of the jury in that instance?

Dominic Grieve (Conservative, Beaconsfield)

I am rather open-minded about it. This is a Committee stage and I have some doubts in my mind as to the best way to proceed. Being conservative with a small “c”, a strong argument commends itself to me—if the current system has worked well dealing with such issues of fact in the past, should we be getting too worried? There is a good argument for saying, “Let us leave the current situation as it is.” Judges have always been able to deal with the issue and ask the jury a supplementary question if a real issue arises in a trial about the facts on which the ultimate sentencing will take place. So far as a Newton hearing is concerned, where there is a guilty plea, the judiciary in my experience have managed fairly well to come to conclusions when the facts are placed in front of them. They usually listen very carefully to the evidence put before them.

That is one argument. The alternative argument is to say that that is all very well in the context of the sort of decisions that used to have to be taken. However, the anxiety is about the growing consequence of the aggravated offence, which would start to create penalties that bear little relation to what one would expect to be imposed if the offence was not aggravated. That is what I would ask the Committee to consider. I await the Minister’s response with interest—but before I hear from the Minister, I give way.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am sorry on the whole to be sounding a note of caution when I hear my hon. and learned Friend speaking on the matter. He will remember and keep well in mind the provisions of the Criminal Justice Act 2003, where we have tariffs for murder. It is for the judge to determine where within the tariff the appropriate sentence lies. However, I have never heard it suggested—I have certainly never seen it done—that the jury should determine the class of homicide as prescribed in the schedule to the Act. I would be very cautious about giving juries a role in sentencing, which is what my hon. and learned Friend is in reality about.

Dominic Grieve (Conservative, Beaconsfield)

I am cautious. If we were dealing only with homicide, I do not think that I would be particularly bothered. However, the issue is that we now have aggravated terrorist offences that can be almost anything. Using a credit card to carry out some fraudulent activity with a terrorist connection may attract a sentence much higher up the scale than one would normally expect from the sums involved. I thought that the issue ought to be brought before the Committee, although I share my right hon. and learned Friend’s caution. That is why my amendments are probing. I do not have a concluding viewpoint. I am interested to hear the Minister’s view and what degree of consultation has taken place. Based on what the Minister tells me, I am minded to go away and reflect on whether I want to do anything else about it.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am listening with great care to the debate and understand both sides of the argument, but I want to throw one thing in: the Homicide Act 1957. On a plea of diminished responsibility that is not accepted by the Crown, the decision then goes to the jury. That supports the hon. and learned Gentleman’s contention, I think. I also throw in the point that, for many years, lay magistrates have been very comfortable with their role in determining facts in Newton hearings in magistrates courts.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a good point. As I said, I cannot amplify my views further, because they have not crystallised. I make no apology for that. I am open to persuasion either way, but I would be interested to know the Government’s position and the views of any member of the Committee who might have them.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I thank the Minister, for clarifying the purpose of the Government’s amendment, and the hon. and learned Member for Beaconsfield, for speaking to the grouped amendments. The first amendment in the string was our amendment, which I am pleased that the Conservatives put their name to, as did the hon. Member for Meirionnydd Nant Conwy. I thank the hon. and learned Gentleman for opening the debate and for being able to set out, perhaps slightly more convincingly than I might have been able to do, the strengths and merits of our amendments Nos. 27 and 28.

Clearly, we are talking about the need for greater safeguards, because the terrorist component of an offence is making that offence so much more aggravated. Hence the need for a jury and hence, possibly, the need for a criminal standard of proof. Again, I follow the lead of the hon. and learned Member for Beaconsfield in saying that these are probing amendments, so that we can hear what the Government have to say about this matter, given that we are talking about perhaps much more substantial and lengthy sentences, and so a need for greater safeguards, as well as a jury or a criminal standard of proof.

We would not seek to press the amendments but wish to listen to what the Minister has to say in response, before perhaps formulating further views later on.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. and learned Friend the Member for Beaconsfield invited members of the Committee to express a view; mind you, we could not stop them doing so. None the less, it was very gracious of him.

I am bound to say that I approach this issue with considerable caution. I myself have always taken the view that sentence was very much a matter for the trial judge. I have always resisted suggestions that the jury should be involved in the sentencing process. In reality, that is what the suggestion by my hon. and learned Friend would amount to.

There is logic in what my hon. and learned Friend says, but I can anticipate quite a lot of other circumstances where the same sort of case arises. Where, for example, there is a racially aggravated assault, is the sentence for that crime to be put to the jury by way of a special verdict? Alternatively, take the point that I adverted to in the intervention, where one is dealing with a homicide case. We all know that there is a range of starting points for the tariff: the starting point is 15 years but it can go to whole life in certain circumstances and it can fall to about 12 years in others. It depends on the balance of the mitigating and aggravating factors, which are specified in the schedule. I would be sorry to see juries being asked to state, by way of special verdict or otherwise, where within the schedule the person convicted of murder stood. Once we go down the road that my hon. and learned Friend outlined, we will get into precisely this sort of world. I am against it, I think.

David Heath (Liberal Democrat, Somerton and Frome)

I am, of course, listening very carefully to what the right hon. and learned Gentleman has to say and I understand the point that he is making. However, does he accept that there is a bigger difference in consequence in this? There is a very much bigger difference between the consequence on what can be a relatively minor offence carrying a very small tariff and the consequence of a terrorist offence with a heavy sentence tariff, forfeiture orders and notification procedures consequent on that. That is what gives some of us cause for concern.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Yes, I understand the logic in that, and the hon. Gentleman and my hon. and learned Friend the Member for Beaconsfield have a point. However, we must ask where the principle is. I take the fact that there is a distinction; within homicide, the range is from whole life to 12 years, which is a big gap. That is also a huge difference. At the end of it, however, I think that I want to leave sentence to judges; I do not think that I want to involve juries.

One of the reasons that I do not want to involve juries is that one would get oneself into the world of unintended consequences. For example, juries are reluctant to convict in certain classes of offence because of the consequences to the defendant that they can envisage. Furthermore, if juries found it difficult to answer the question in the negative—is this a terrorist offence?—they might very well acquit in circumstances where they should not acquit.

I think that this matter is best left to judges. If there is to be further consultation, I am sure that members of this Committee would wish to reflect further on it, but I am very cautious about it.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

We have had a very interesting debate. For once, I disagree with the right hon. and learned Member and my reason for that is, first, I do not believe that what is being proposed brings the jury into sentencing. Clearly, the jury should have no role in sentencing; we all agree on that, I am sure.

I mentioned the Homicide Act 1957 in passing. We entrust the jury, albeit with specialist medical evidence and so on, as well as requiring them to look at the circumstances of the offence, with deciding, “Is this a case of murder, or do we accept this person’s plea of manslaughter based on diminished responsibility?” That we do.

Let us say, for example, that the jury come back—I, and other people, have seen it in court—and say, “We accept the plea of diminished responsibility, therefore we find that he is guilty of manslaughter.” If we follow the argument of the right hon. and learned Member, the jury take part in sentencing, because what is open to the judge is severely limited, compared with what was open to the judge when the offence was murder.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I wonder whether the hon. Gentleman is entirely right, because he will keep in mind that for manslaughter, which is what the verdict would be if there was diminished responsibility, there is a penalty that ranges from life to a non-custodial sentence. The sentence is at large; it is for the judge to impose any sentence within that bracket.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I understand that point, but does not my point undermine the idea that in terrorist offences, juries might find it easier to go for the softer option and so on? I fully accept what the right hon. and learned Gentleman says: we need to keep juries away from sentencing. I have no doubt about that. But there is a huge difference between an offence involving terrorism and an offence presumably not involving terrorism, and on that basis alone, the jury should have a say in that determination. Then, of course, it will be entirely open to the judge to decide, if one can imagine, and I use the phrase advisedly, a minor terrorist offence: one on that side of the scale, as opposed to one at the very top. There is good sense in the amendment and it is worth having the debate, but I must confess that, as the right hon. and learned Gentleman said, we need to be cautious with it. It should not, however, be dismissed out of hand.

Tony McNulty (Labour, Harrow East)

We are in danger of confusing what clause 29 is about with the previous debate about clause 27 and jurisdictional issues. Clause 29 relates directly to a specific set of serious offences and no others. We shall come on to discuss schedule 2, but the offences are outlined in it. In substance, clause 29 merely formalises the current situation. I shall pursue the example from the hon. Member for Meirionnydd Nant Conwy, whereby the jury says, “manslaughter”, rather than “homicide”, which is perfectly reasonable. I am no lawyer and I do not want to jump into a catfight between three significant lawyers, but it is perfectly wrong to say that the jury are influencing a sentence. They are not; they have determined the offence. As the right hon. and learned Member for Sleaford and North Hykeham says, it is then entirely up to the judge, having got a manslaughter result, to decide the mitigating and other circumstances and whether the sentence should be non-custodial or life—as manslaughter rather than as homicide. That is rightly and properly the purview of the judge, not of the jury. To pursue the analogy, no one in that case would think it right or proper for the judge then to say to the jury, “You’ve said manslaughter. Where do you think the sentence should lie in this whole range from non-custodial to life?” When, perfectly properly, the prosecution authorities say, as they have done, “This is a terrorist offence,” it will be perfectly in order for the judge to take it—once the outcome has been determined—as a mitigating circumstance prior to sentencing, as he would any other. That is all the provision will do.

To be perfectly fair, I think—again, I am no lawyer—that if we were to accept the amendment, we would drive Herbert Morrison’s proverbial “coach and ‘orses” all the way through the principle that it is for the judge to determine a sentence, not for the jury. Let us look at schedule 2. I do not think that the judge would give, in every circumstance, the impression of a huge, whopping, decade-related sentence because the offence happened to have “terrorist” connected to it. The minor offences are not in schedule 2. We have moved on from the jurisdiction; we are now on to those schedule 2 offences that are appropriate for enhanced sentencing. We must regard the matter in that context, and again, as a non-lawyer, I should say that, in those circumstances, to ask the jury to play a role would be perverse in our current system.

The hon. and learned Member for Beaconsfield asked a perfectly fair question about consultation. He will know that we have had five months’ consultation on this, including discussions with prosecutors and the judiciary, who did not think the measure was necessary at all—he is free to come back to that with a Mandy Rice-Davies comment and say, “Well, they would, wouldn’t they?” Some legal organisations did think it appropriate for the jury to make the decisions—principally, Liberty and Justice. He will know that there is a summation of views. Opinion was split.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has fairly pointed out that the judiciary did not think that this section of the Bill was required. That point of view commends itself to me because the judiciary would simply say that the provision is just not necessary because it can take account of the facts in relation to aggravating circumstances without it having to be spelt out in statute. So why have the Government put the provision in the Bill?

Tony McNulty (Labour, Harrow East)

Purely to formalise that which has prevailed thus far, and because it is right and appropriate to do so. First, doing so will formalise the range of offences for which it is appropriate; those offences are outlined in schedule 2. Secondly, as I have said, the provision will formalise the position that has prevailed in some terrorist cases up to now. It is perfectly proper for the judge to determine whether it is a terrorist offence or otherwise where the principal charge was clearly a non-terrorist offence. It is also perfectly proper for the judge to reflect that in the enhanced sentencing.

Dominic Grieve (Conservative, Beaconsfield)

To come back to the Minister’s point about these being serious offences, I agree that the vast majority are. However, I dare say it will come as a salutary shock to the average yob who has caused a disturbance on the aeroplane while flying back from Ayia Napa to the United Kingdom to find that the judge sentencing him must consider whether he has a terrorist connection.

Tony McNulty (Labour, Harrow East)

I have never been to Ayia Napa, so I shall let that lie. I recently went to Cyprus for the first time, but happily I was nowhere near Ayia Napa. I stayed at a lovely little hotel called the Anassa—the surrounding countryside was miserable as sin, but the hotel was lovely. However, that is by the bye. It is clear that these are, in principle, serious offences and will be taken as serious in a case with a terrorist overlay to it. The hon. and learned Gentleman knows that entirely. I am minded to remind him—although I do not want to go there—that, among other things, noxious substances and noxious things are included. During our deliberations, he reminded me, or informed me rather, that Mosquitoes—not the nasty little bug, but the antisocial behaviour devices that emit UHF sounds to put off teenagers—are also a noxious thing. So far, we have two noxious things: pathogens and potentially Mosquitoes.

The formalisation of what has already prevailed is appropriate. The explanation of what schedule 2 offences should be—and we will come on to schedule 2—is equally appropriate. Notwithstanding our amendment, we have set out the appropriate way to go forward. Before enhancing sentences, the judge rather than the jury should properly consider what is essentially on one level, as I have suggested, a mitigating circumstance. I just do not think doing otherwise is reasonable.

I am told reliably that the point made about beyond reasonable doubt in amendment No. 28 is principally already the case—certainly in terms of including the aggravation in sections 145 and 146 of the Criminal Justice Act 2003 that covers race, religion, disability and sexual orientation aggravation. There is no provision in that Act to spell out that the standard is beyond reasonable doubt and similarly it is not necessary to spell it out in the Bill because it is already the case that the court will apply the criminal standard and there is no suggestion that it would do otherwise. In that context, clause 29—suitably amended by me—should stand and the other amendment should be withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I have decided not to move amendment No. 169.

Schedule 2

Clause 32

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 170, in clause 32, page 22, line 1, leave out from ‘used’ to ‘for’ in line 2.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss the following amendments: No. 130, in clause 32, page 22, line 5, leave out ‘or under their control’.

No. 171, in clause 32, page 22, line 8, leave out

‘or had reasonable cause to suspect’.

No. 131, in clause 32, page 22, line 9, leave out ‘or might’.

No. 172, in clause 32, page 22, line 21, leave out

‘or had reasonable cause to suspect’.

No. 132, in clause 32, page 22, line 22, leave out ‘or might’.

Dominic Grieve (Conservative, Beaconsfield)

The clause deals with the forfeiture of terrorist property. I wish to make it clear to the Minister that I have no objection in principle to the idea that terrorist property should be forfeited. However, we perceive that a problem arises about whether the wording of the clause is too wide. It states:

“Where a person is convicted of an offence under section 15(1) or (2) or 16, the court may order the forfeiture of any money or other property which, at the time of the offence, the person had in their possession or under their control and which—

(a) had been used for the purposes of terrorism, or

(b) they intended should be used, or had reasonable cause to suspect might be used, for those purposes.”

In what circumstances should I have a reasonable cause to suspect that money might be used for a terrorist purpose?

For example, a large number of organisations in this country, some of which are registered charities, raise money for the relief of destitution, poverty and misery in the middle east, particularly the occupied west bank. From time to time, there are reports in national newspapers that one or other of those organisations is not fulfilling its charitable purposes, and that it is possible that money given by donors in this country is ending up in the hands of those who are promoting violence, and that they are using it to fund that violence. Seeing the generic nature of the anxiety that had been expressed, it must at least be the case that, if confronted with an organisation that seems to be a registered charity in this country and that otherwise has bona fides, I might have to say to myself, “I cannot say that I don’t have cause to suspect that it might be used, even though I have no evidence that it will be used as such at all.” I put it to the Minister that that illustrates my point better than any more of my speech making would do. I am worried that we might be extending the net too far through our wording.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Perhaps an even more serious problem can arise, although my hon. and learned Friend has identified a proper point. Let us consider circumstances in which, for example, the person is the owner of a garage. He is in possession of a car that is owned by a third party. The third party is entirely innocent, but the garage proprietor suspects that the car will be used in a terrorist offence. The property owned by the innocent third party is subject to forfeiture. If the Minister would be good enough to look at clause 34, he will see that, although there is a right for the innocent third party to make representations, there is no clear guidance as to the criteria that the court should observe when determining whether to make an order that will have a serious effect on the innocent third party.

Dominic Grieve (Conservative, Beaconsfield)

My right hon. and learned Friend makes an extremely important point that we might cover a little more closely when we reach clause 34. However, it is a point that the Minister should answer during our discussions.

As the Minister will appreciate, the purpose of the group of amendments is to amend the clause not, I hope, to negate its efficacity in forfeiting terrorist property.

Tony McNulty (Labour, Harrow East)

The word is efficacy rather than efficacity.

Dominic Grieve (Conservative, Beaconsfield)

The right hon. Gentleman is probably right.

Tony McNulty (Labour, Harrow East)

That means that I am.

Dominic Grieve (Conservative, Beaconsfield)

We must ensure that the net is not cast too widely.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I reinforce the point that I have just made by way of an intervention because it does raise rather an important issue. We could often have a situation in which the convicted person is essentially a bailee, if I can use that technical word. He is a custodian. Let us suppose that the convicted person is in the business of repairing a car. That is the best possible example because cars can readily be used in terrorist attacks, either as the vehicle for the bomb, for transport or whatever. He has the property of another in his possession and under his control. We could think of almost any property that would fall into that category.

On that person’s conviction, the property belonging to the third party is subject to forfeiture. I acknowledge at once that a provision under clause 34—proposed new section 23B—enables a person, other than the convicted person who claims to be the owner or otherwise interested, to make representations, but nothing in that proposed new section sets out the rights of that innocent third party, if I may characterise the person as such. All he can do is to make representations. The provision does not explain the person’s rights if the court was satisfied that he was wholly innocent—“What is the standard of proof”, I say in parenthesis. What are his rights? They seem to be at large, and I find it difficult to believe that that can be right.

To be truthful, I have not had time to table amendments to clause 34. I make no complaint about that. It is my responsibility to do so. However, we must address such an issue because innocent third parties should not have their property forfeited because the bailee is guilty of an offence. I hope that the right hon. Gentleman will reflect on the provision because, as I suggest to my hon. and learned Friend, we shall need to return to it on Report as it concerns a serious issue of third party rights.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am following on precisely from that point. I am sure that the Minister will help us in a minute. What has been foreseen under clause 34 is a similar or more robust procedure that applied under the Police (Property) Act 1997—that both sides would be heard properly and a decision arrived at. I agree that the procedure must be robust, open and easily accessible to an innocent party who may lay claim to the property.

The hon. and learned Member for Beaconsfield said that we must be careful not to cast the net too widely. No one in the Committee or elsewhere would say that it is wrong in principle to forfeit money or property that might have been involved in terrorist activity. I can advise the Committee of a case—I shall not name it because it is current and was decided in the last few days—of someone who has been convicted of theft of property worth less than £4,000. All the property was recovered, and he was sent down for a matter of weeks. He came out of prison to face one of these procedures. He had £7,000 in the bank and could prove precisely where the money had come from, but the judge was helpless and had to take the money from the offender. The net is already too wide, and we should apply care. I have no regard for any terrorist, and we must ensure that anything that is used in terrorism is properly taken away. There is no doubt about that, but we must be careful in this part of the Bill.

David Davies (Conservative, Monmouth)

This will be a short speech, because it is completely unprepared. I strongly disagree with the last point, because it is not just about money that might be used for terrorism. It is about removing from people who have been convicted of terrorist acts the means to perpetrate further acts of terrorism, regardless of whether the money used for doing so was gained lawfully or not. Frankly, I have no sympathy whatever for terrorists, burglars or anyone else who is convicted of an offence. Once that conviction has been made, the gloves should come off.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The problem is when that person is in possession of the property of third parties in particular. For example, in matrimonial situations a terrorist could share property with a wholly innocent wife. I would find it difficult and I hope that my hon. Friend would find it difficult to say that the property of a wholly innocent wife should automatically be taken away.

David Davies (Conservative, Monmouth)

I would indeed, and I was perhaps responding more to the comments made by the hon. Member for Meirionnydd Nant Conwy than to those of my right hon. and learned Friend. If it can be proved that money or goods belong to someone convicted of terrorist offences, regardless of whether they were used to carry out the offences or were simply there, the authorities should have every reason to try to remove them from the convicted person.

Tony McNulty (Labour, Harrow East)

I was quite surprised by what the hon. Member for Monmouth said—not the substance, but the notion that at some other times he prepares his speeches.

I defend entirely the hon. and learned Member for Beaconsfield who sent me a note stating rightly that efficacitÃ(c) is French and that he had slipped into French. We know how erudite he is in the English language, and I am sure that he is just as erudite in French, but it ain’t an English word, and I am happy to upbraid him for passing off efficacitÃ(c) as English when it is not.

David Davies (Conservative, Monmouth)

On a point of order, Mr. Bercow. Is it not the case that medieval French is still allowed in the House, although Welsh is not, and that my hon. and learned Friend was within his rights?

John Bercow (Conservative, Buckingham)

My response to that is that I understand that French is allowed for the purpose of Royal Assent, but for that purpose alone. I am grateful to the hon. Member for Monmouth for his point of order, which I am sure was illuminating for the Committee.

Tony McNulty (Labour, Harrow East)

Without prolonging the point, I am pretty sure that efficacitÃ(c) is not medieval French, or Norman French.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Does the Minister share my concern that the hon. Member for Monmouth said that he recognised that some people might be innocent?

Tony McNulty (Labour, Harrow East)

In his defence, I am sure that it was a minor slip.

I freely accept that the thrust of the amendments is not to wreck or undermine what we seek to do—they are perfectly valid. Strangely, however, the hon. Member for Monmouth had half a point, because the mens rea for the measures is “had reasonable cause to suspect”. Notwithstanding the hon. Gentleman’s point about third parties and the ownership of property, or the points about the European convention on human rights—about article 8, on the right to respect for private and family life, and article 1 of the first protocol, about the right to peaceful enjoyment of one’s possessions—there is, incumbent on every individual, a notion that they are responsible for their actions.

The principle applies even in the examples that the hon. and learned Member for Beaconsfield quoted, as there might be a reasonable suspicion that some of the bona fide charities working in the west bank, or anywhere else, have clear terrorist intent. Indeed, Members present could name such organisations. If one makes a donation to such an organisation—if one’s assets are aligned with them or are utilised by them in any way—and one does not fulfil one’s responsibility to put oneself in a position in which that is not the case, it is appropriate that the forfeiture regime should apply. It has to be applied carefully and there must be all sorts of safeguards, but the Bill provides greater safeguards than are provided in the 2000 Act, not least new section 23B, to which I think the right hon. and learned Member for Sleaford and North Hykeham referred. New section 23B(2) provides that the court must have regard to the “value of the property” and to the

“financial and other effects on the convicted person of making the order”.

I reiterate that we start from the premise that no one thinks that what the measure does is other than a good thing. The concern is about whether it has been drawn too wide, but there are appropriate safeguards. The amendments would lessen the import and strength of the measures, which is why I shall ultimately ask the Committee to resist them if they are not withdrawn.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Let us take an entirely fictional person called Mr. McNulty, who has a car. He gives his car to a garage to be repaired, but, unfortunately, the owner of the garage happens to be a terrorist. The proprietor of the garage uses the car for terrorism purposes, and is subsequently convicted. May I ask where in the Bill, or in any other legislation, the interests of the wholly fictional Mr. McNulty are properly protected, because they are not protected by clause 34 or new section 23B?

Tony McNulty (Labour, Harrow East)

I contend that they are protected by the whole limb of “reasonable cause to suspect”. If the fictional Mr. McNulty had no reason whatever to suspect the person with whom he left his car at the garage, who was probably going to rip him off, he would be entirely free from the provisions.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I have a feeling that the right hon. Gentleman is misreading the Bill. I understand that the phrase “reasonable cause to suspect” would apply to the garage proprietor, not to the fictional Mr. McNulty, who gives his car in good faith to the garage proprietor, who happens to be a terrorist. Where in the Bill are Mr. McNulty’s interests protected?

Tony McNulty (Labour, Harrow East)

There is no cause to protect the fictional Mr. McNulty in the Bill because he is not the focus. In the example, the right hon. and learned Gentleman was querying the rights of the third party, the fictional Mr. McNulty, over his car. These clauses would have no impact on Mr. McNulty. To the extent that he needs to be covered, that will be done elsewhere, not just by the ECHR, but under other legislation.

Dominic Grieve (Conservative, Beaconsfield)

My right hon. and learned Friend the Member for Sleaford and North Hykeham has a perfectly valid point. The architecture, as set out in proposed new section 23B on forfeiture, clearly envisages the forfeiture of property in the possession or control of the individual at the time of conviction. The individual is the person who has committed the offence. That does not provide for an individual to make representations to the court that the property that has been used in the course of terrorism is his and has been used in circumstances about which he had no idea or reasonable call to suspect were happening. It may be that the Minister can provide reassurance that a safeguard exists elsewhere in the Bill, in statute or in court rules. I think that my right hon. and learned Friend makes a perfectly good point.

Tony McNulty (Labour, Harrow East)

I do not agree, not least because section 6 of the Human Rights Act 1998 says that everything we do should be ECHR compatible. Someone cannot forfeit wholly innocent property and remain within the context of the ECHR. If there are any disputes, the provisions in the Bill offer greater safeguards than in the original Bill. As was indicated, the Police (Property) Act 1997 also covers this point.

Dominic Grieve (Conservative, Beaconsfield)

It is not an adequate safeguard to say that a person who finds that their property has been confiscated by the court because it happens to have been under the control of a terrorist on the date of conviction should have to rely on article 6 of the ECHR to assert their right to recover it. They might well be able to do so, but in legislation of this kind, I would ordinarily expect the Government to make provision for that individual to make representations. I was heavily involved, sitting in this room at one stage, with scrutinising the Proceeds of Crime Bill, which made exactly that sort of provision. I wonder if this is not simply an omission that can be corrected by the Government before Report stage.

Tony McNulty (Labour, Harrow East)

No, I did not say article 6, but section 6 of the Human Rights Act 1998, which says that everything that we do must be ECHR compliant and therefore compliant with the key provisions of article 1 and the right to property in article 8. I alluded to that as the background architecture. As the right hon. and learned Member for Sleaford and North Hykeham has already mentioned, clause 34, which will insert section 23B in the Terrorism Act 2000, says very clearly:

“Before making an order under section 23 or 23A, a court must give an opportunity to be heard to any person, other than the convicted person, who claims to be the owner or otherwise interested in anything which can be forfeited under that section.”

That is the belt and braces and the right hon. and learned Gentleman has referred to it already. That is entirely proper. As I have said, the way we are amending the architecture of the 2000 Act and all that it says on forfeiture will make the safeguards stronger. The points that have been made are covered in the Bill.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am sorry to press this matter, but I think that it is important. The Under-Secretary of State for the Home Department, the hon. Member for Gedling, may remember that when we were scrutinising a different Bill last year, I raised the confiscation powers in the Proceeds of Crime Act 2002 and we debated this subject. I think that the Minister is uncharacteristically misunderstanding the case.

Tony McNulty (Labour, Harrow East)

The right hon. and learned Gentleman’s fictional Mr. McNulty is covered by the amendments to the 2000 Act contained in clause 34. Any other individual who, for whatever reason, has their property captured under a forfeiture order, but who has due rights and legal ownership and can justify that, can get due process from the courts. Your Mr. McNulty can waddle up to the court—if he is anything like me—present himself and the documents that say that it is his car that has been captured by the garage owner who happens to be a terrorist and, under the amendments in new section 23B to the Terrorism Act 2000, can also get due process from the courts.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Although I would like to think that the Minister is right in his interpretation of statutory language, I fear that he is not. Let us go back to the starting point. We are dealing with a fictional Mr. McNulty who gives his car to a garage. The garage proprietor uses or intends to use the car for terrorist purposes and is convicted. At that point, Mr. McNulty’s car is forfeited. What are Mr. McNulty’s rights? They are set out in clause 34, particularly in new section 23B. Mr. McNulty has a right to go to the court that made the confiscation order, claiming to be the owner or to be otherwise interested in anything that was forfeited. He has a right to go to the court, but what is the court to do? Subsection (2) of new section 23B states:

“In considering whether to make an order under section 23 or 23A in respect of any property, a court shall have regard to”—

only two criteria—

“the value of the property”,

which is Mr. McNulty’s car, and

“the likely financial and other effects on the convicted person”,

who is the garage proprietor,

“of the making of the order”,

taken together with any other order that the court contemplates making. There is absolutely nothing in the clause that gives the court a duty to consider the interests of the fictional Mr. McNulty—nothing whatever. That is the objection.

Tony McNulty (Labour, Harrow East)

That is because the duty is afforded under new section 23B(1). New section 23B(2) relates to the remaining property where it has already been determined that it belongs to the defendant and is about to be forfeited. It has nothing to do with claims by third-party owners who are only interested in whether their property is being swept up in the forfeiture order. I think that that is very clear.

John Bercow (Conservative, Buckingham)

Order. I was not entirely sure whether the right hon. and learned Member for Sleaford and North Hykeham had finished his speech or was taking an intervention.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I was giving way. Even if the Minister is correct in his interpretation of subsection (2), he is not right in his interpretation of subsection (1). All that subsection (1) does is enable Mr. McNulty to claim to be the owner. It says nothing about the burden of proof or what the court has to determine before deciding whether or not the car should be forfeited. I am saying that there is insufficient protection built into that provision for the Mr. McNultys of the world. If the Minister thinks about the Proceeds of Crime Act 2002 or the point made by the hon. Member for Meirionnydd Nant Conwy about the Police (Property) Act 1997, he will know that there are criteria in other legislation that touch precisely on that matter.

I am perfectly willing to accept that the Minister, at this stage, is not in a position to say, “All right, the right hon. and learned Member is of course right”, but he is in a position to say that he will think seriously about the matter. I will be entirely reassured, because he is a perfectly sensible chap, if he will say that he will give the matter serious thought before Report, because I can tell him that we will.

Tony McNulty (Labour, Harrow East)

In that spirit, I shall happily look at it, but I am pretty clear that I am right, without pre-empting my dispassionate reflection on how the two clauses interact.

Dominic Grieve (Conservative, Beaconsfield)

I simply canvas this as a possibility: it is quite clear from the amendments that will be made to section 23 of the Terrorism Act 2000 that it is envisaged that forfeiture will extend to property that is more than just owned by an individual. That is why clause 34 states that at the time of the offence the property was

“in their possession or under their control”.

I also agree with the Minster that in clause 34, there is a clear provision for a person to make representations to the court that they are in fact the owner or otherwise have an interest in anything that is going to be forfeited. What is not expressly spelled out is how the court is to reconcile those two matters. If, for example, a person can establish ownership, but it is quite clear that the articles were not under the possession and control of the person at the time that they were used for terrorism, are they to be confiscated? What is the situation in terms of forfeiture where it is quite clear that the property does not belong to the individual, but nobody has ever come forward to say it is theirs? Is such property automatically confiscated? If the owner hears about it six months later, is it too late to come along and reclaim it? Or does it remain their property?

I hope that the Minister will forgive me. I suspect that these are matters which can be cleared up quite easily, but I think there is, in the drafting of these two new sections, a degree of incompatibility or, at least, a lack of clarity which it might be useful to resolve.

Tony McNulty (Labour, Harrow East)

If, after the reflection that I have promised, that is the case, we will have a look. Many of these provisions, however, simply replicate, in the same language, the core of what has already been in force since 2000 and which has not, in its language at least, been problematic. The hon. and learned Gentleman will know that issues around asset seizures have been reported in the press in very recent times, but they are more to do with asset freezing than with seizures.

I am very happy, in the spirit that the hon. and learned Gentleman offered his point, to take it away and look at the interaction between the amendments to the 2000 Act. If there are concerns that have been around since 2000 that we have not alighted upon, then I will have a look. I am being very, very clear, as the hon. and learned Gentleman said at the start, that this is not about trying to block, impinge or do anything other than have the most efficacious set of principles to do what we all, collectively, want to do, which is to make sure that the assets of individuals involved in terrorism are duly forfeited.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his explanations. I hope that he will take what has been said in good part. It may well be, as so often happens when we consider Bills, that those tabling amendments have got it wrong. I do, however, think there is an issue here, and the fact that the provisions date from 2000 does not necessarily mean that the issue was resolved at that time. It would be very useful if the Minister could provide some clarification before Report. I beg to ask leave to withdraw the amendment.