Counter-Terrorism Bill

Public Bill Committee, 13 May 2008.

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Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 173, in page 22, line 44, leave out from ‘terrorism’ to end of line 46.

Good morning, Mr. O’Hara, and may I welcome you back to the Chair for our consideration this week? Under the part of the Bill dealing with the forfeiture of terrorist property—provided for originally in clause 32 —the intention is to confiscate property after conviction if it has

“been used for the purposes of terrorism”

or

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

In clause 33, which we are now considering, there are amendments to the section of the Terrorism Act 2000 entitled “Forfeiture: terrorist property offences”. Again, amendments are included, the first ones of which one might think are entirely understandable. Forfeiture may be ordered by the court if the property has been

“used for the purposes of terrorism”

or

“it was intended by that person that it should be used for the purposes of terrorism.”

But then subparagraph (iii) goes on to say, if

“the court believes that it will be used for the purposes of terrorism unless forfeited.”

The amendment deletes that third section.

This is a probing amendment, but I should be grateful if the Minister would explain what in fact is the architecture that we are putting in place here. My recollection—though I may be wrong about this—is that the Terrorism Act 2000 provides that there should be forfeiture in the cases of terrorist property—that is, forfeiture of property connected to terrorism. But to include a provision that the court believes that it will be used for the purposes of terrorism unless forfeited seems to be an extension of that principle. It may be justified, but it would be useful for the Committee to understand the Government’s reasoning on this point.

I would like to illustrate my possible concerns. On the basis that the individual concerned would almost certainly have been imprisoned for the terrorism offence with which he has been convicted, if the property has not been connected to terrorism in the first place, that raises the question in my mind: what sort of property will the court then be asked to look at to form a belief that it will be used for the purposes of terrorism unless forfeited? It seems to me to be an exceptionally wide power. Will the Minister therefore tell the Committee what the Government’s intention is here, and what the criteria are that the court would be asked to apply in coming to that determination.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I rise to support my hon. and learned Friend the Member for Beaconsfield on this point. We go back in part to the debate we had last week about the imaginary McNulty—because what we have got, or could have again, is the repairer in a garage in whose possession is a vehicle deposited by an innocent third party, and here we have a very wide power to forfeit that could bite on the properties of innocent third parties, so it is rather important that the Government explain the precise reasons for and limits of this power.

Tony McNulty (Labour, Harrow East)

I do not want—however pleasant that may be—to go back to the imaginary Mr. McNulty. I thought we dispatched that last week. Equally, let me say what a pleasure it is to be under your chairmanship again, Mr. O’Hara. You will see that we have made, in your absence, some progress, but a little more today would be extremely useful for all concerned.

On the first point made by the hon. and learned Member for Beaconsfield, the architecture of this set of clauses on forfeiture of assets can be found in the Powers of Criminal Courts (Sentencing) Act 2000. This is largely replicated here. He is entirely right: there was a forfeiture element in section 111 of the Terrorism Act 2000, but that was just for Northern Ireland, and has since been repealed. Interestingly, that referred to a similar set of rules, but said that the court may forfeit if it believed that they were used for the purposes of terrorism, and we think that “will be used” is stronger than “may be used” in that regards. So the architecture is not new; it comes from there.

The entire regime that clauses 32 to 37 aim to build on, extends, as I said, that already in place in the Terrorism Act 2000. Such a regime is an important means of ensuring that assets held by convicted terrorists that either have been used, or will be used, for the purposes of terrorism, are removed from circulation. The regime also serves as an additional part of the sentence of the convicted, thereby adding to the deterrent power of the offence.

To ensure that the regime is as effective as possible, it is clearly important that the maximum amount of assets that might be used for the purposes of terrorism are available for the courts to consider for possible forfeiture. In this context, it is sometimes very difficult to prove an intention in the mind of the convicted person beyond reasonable doubt. In these cases, it is right that the court is able to come to its own belief about whether the assets in question will be used for the purposes of terrorism unless forfeited. We think that is an important element of the architecture, as the right hon. and learned Gentleman fairly said. Amendment No. 173 will deny the court that ability.

It is worth pointing out at this stage that this type of wording is not new in legislation. Section 111 of the now repealed element of the Terrorism Act 2000, which applied to Northern Ireland, allowed for forfeiture to be ordered where the court believed that property may be used in connection with the activities of specified organisations unless forfeited. Actually, as I have implied, this is a lower test than the wording in the present clause, which requires the court to believe that the property will be used for terrorist purposes.

Dominic Grieve (Conservative, Beaconsfield)

If I understand the Minister correctly, that was with reference to specified organisations and not a general power?

Tony McNulty (Labour, Harrow East)

Absolutely so, and specific to Northern Ireland. As I have said to the Committee, in quite rightly looking at the dismantling of the assorted security and terrorist legislation in Northern Ireland, and given the peace process, the Government have sought to learn from those experiences and see how we can improve our legislation, if we think the legislation should be translated into a UK dimension.

It should also be pointed out that the civil standard of proof is required in testing whether there has been unlawful conduct such as to bring into play the proceedings for recovery and confiscation of assets under the Proceeds of Crime Act 2002. Clearly, however, giving the courts this power needs to be balanced by appropriate safeguards to prevent assets being unfairly removed either from the convicted person or from innocent owners, such as the imaginary Mr. McNulty. Such safeguards do exist, and with your indulgence, Mr. O’Hara, I will run through them now, as they are germane to the amendment as well as to the overall clause.

First, the court must still have before it all the necessary evidence in order to make a full and proper investigation into the prosecution's application. This is established in case law with R v. Pemberton 1982, and applies to all court orders for deprivation and forfeiture of assets. The court must also act in a way that is compatible with the European convention on human rights, in particular article 8, the right to respect of private and family life, home and correspondence, and article 1 of the first protocol, the right to peaceful enjoyment of possessions.

The Bill provides greater safeguards than the forfeiture provisions in the 2000 Act and new section 23B(2) provides that the court must also have regard to the value of the property and to the

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

Given those safeguards, the existence in other legislation of a similar standard of proof when considering deprivation of assets, and the need for a fully effective forfeiture regime, amendment No. 173 is not necessary and I would ask that it be withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for helping to enlighten me as to the background and I ask the Committee’s leave to withdraw the amendment.

Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 138, in page 23, line 11, at end insert—

‘section 6 (training for terrorism);’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss Government amendment No. 139.

Tony McNulty (Labour, Harrow East)

Clause 33 extends the power of the court in clause 32 to order, as we have just discussed, forfeiture of money or other property under the possession or control of the person convicted by it, from the terrorists finance offences with which clause 32 is concerned, to certain other terrorism offences and offences with a terrorist connection.

A number of offences contained in the 2000 Act and the Terrorism Act 2006 do not have bespoke comprehensive forfeiture provisions attached to them. This clause will allow a court that convicts a person of certain terrorist offences or offences with a terrorist connection to order the forfeiture of money or other property in the possession or control of the person convicted at the time of the offence, which had either been used for the purposes of terrorism, or which it was intended by the person convicted should be used for the purpose of terrorism, or which the court believed would be used for the purpose of terrorism unless forfeited.

The extension of the court’s powers is necessary as the more general forfeiture provisions that exist, in particular section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 do not cover complex assets such as land. It is clearly right that land held by terrorists for terrorist purposes, such as a flat bought to use as a bomb-making factory, is removed from circulation. Specifically, clause 33 inserts new section 23A in the Terrorism Act 2000, setting out the power of the court to order the forfeiture of assets of a person convicted of certain terrorism offences and offences with a terrorist connection.

Subsection (2)(b) contains a list of offences in the Terrorism Act 2006 to which these powers will apply. This includes offences under sections 2, 5 and 9 to 11. Amendment no. 138 would add offences under section 6 to this list. Section 6 of the Terrorism Act concerns the provision and receipt of terrorist training, and section 7 sets out specific powers of forfeiture in relation to an offence committed under section 6, but these are restricted to assets connected to the offence itself. These wider powers of forfeiture ought to be made available to the courts in respect of people convicted for an offence under section 6, as I have said—the provision and receipt of terrorist training—as it may be that such a person has other assets intended to be used for the purposes of terrorism that would not be available for forfeiture under the current regime. This is in line with the extension of the forfeiture regime in general under the Bill. Amendment No. 139 would simply add a line to section 7 of the Terrorism Act 2006 stating that the forfeiture powers set out there in respect of assets connected to an offence are in addition to those in new section 23A.

That is simply tidying up matters on how the three Bills relate to each other. I commend the amendments to the Committee.

Dominic Grieve (Conservative, Beaconsfield)

I realise that in a sense the Minister is tidying up, but he is creating a very wide-ranging series of powers in relation to forfeiture covering, I assume, the entire spectrum of any offence that might fall within the terrorism definition. It simply means that then it is up to judicial discretion to ensure that all this is applied in a way that is fair. Otherwise one can see it would have the potential of becoming a draconian side sanction that may be out of all proportion to the actual offences being committed. I say no more about that, Mr. O’Hara. I simply flag up the fact that these are very extensive powers that the state is taking to itself but I trust that, moderated by the judiciary, they will be applied correctly.

Clause 34

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 174, in page 24, line 2, leave out ‘and other’.

Clause 34 makes provision—which brings me back to my earlier comment—for the court to be entitled to hear from any person.

Subsection (2) of new section 23B states:

“In considering whether to make an order...in respect of any property, a court shall have regard to...the value of the property, and...the likely financial and other effects on the convicted person of the making of the order (taken together with any other order that the court contemplates making).

Since the order is in fact a financial order, what are the “other effects” that the Government consider the court might wish to take into account?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I always like to agree with my hon. and learned Friend the Member for Beaconsfield, but this is one of the occasions when I am jolly uneasy about the amendment. My general rule, as the Committee will know, is to take the libertarian view and I ask myself: what is the impact of the criteria set out in my hon. and learned Friend’s amendment? It seems to me to tighten up the circumstances, against the interests of the convicted person.

I can well comprehend a range of circumstances when “other effects” will go outside the financial effects. If somebody, for example, owns a car—I am sorry to come back to the car, but it is a rather good example—forfeiting a car might not only have a financial effect, but it might preclude a person from being able to live where that person has chosen to live, or go to work, or other such consequences. As the power to forfeit extends to anything—I use the word advisedly, because it is in the language of the statute—I want the court to be able to consider as wide a set of consequences as is possible. [Interruption.] If my hon. and learned Friend is seeking to intervene, I will certainly give way.

Dominic Grieve (Conservative, Beaconsfield)

I am. My right hon. and learned Friend is doing the Minister’s job for him. These are the matters that I rather hoped that the Minister would put on the record so that they can be waved around in court when, at a subsequent time, people seek to advance the very arguments that my right hon. and learned Friend is seeking to advance here. I was not intending to restrict the scope.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am glad to know that, because we all hope that we will be in a position to do the Minister’s job fairly soon.

Crispin Blunt (Conservative, Reigate)

Really?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

That was an intervention; I have not finished my speech. The answer is not all of us want to do it, or only if the price is a very high one.

David Heath (Liberal Democrat, Somerton and Frome)

I rise simply to say that I am with the right hon. and learned Member for Sleaford and North Hykeham in this, and I suspect also with the hon. and learned Member for Beaconsfield.

Tony McNulty (Labour, Harrow East)

There we are—the Committee is a big tent, because I too am with the libertarian right and the liberal right and the Liberal Democrat centre, or whatever it is. The key point is, if we go back to the imaginary Mr. McNulty, he or his partner may live in the middle of rural Lincolnshire and just have the car for survival and for whatever they can do with that car or van to earn a living. It may well be that the impact of forfeiture on the rest of the family needs to be taken into account and a range of other circumstance could prevail, including seeking and maintaining gainful employment.

David Heath (Liberal Democrat, Somerton and Frome)

I am very glad that the Minister has mentioned the effect on the broader family as it is not explicit in the Bill—the court can take into account only the effect on the offender. Can he assure me that it can be construed as meaning also the effect on the family?

Tony McNulty (Labour, Harrow East)

I should love to show off and reel off a whole bunch of case law rooted in the Powers of Criminal Courts (Sentencing) Act 2000, which as I described earlier is exactly the architecture that much of this forfeiture regime comes from. We feel that having “and other” in there is precisely broadly enough drawn to take into account all such circumstances, as the right hon. and learned Member for Sleaford and North Hykeham and, to be fair, the hon. and learned Member for Beaconsfield seek to imply. We think that amendment No. 147 runs counter to the establishment of an effective and fair regime with appropriate safeguards within it.

Edward O'Hara (Labour, Knowsley South)

Order. The amendment is No. 174.

Tony McNulty (Labour, Harrow East)

I apologise. Amendment No. 174 runs counter to a fair and effective regime with the appropriate safeguards, and I would ask the liberal right to withdraw the amendment and come with me and the libertarian right.

Dominic Grieve (Conservative, Beaconsfield)

This was always a probing amendment. Having recorded in Hansard at Committee stage both the scope of what the expression “and other” will mean and, even more helpfully, the suggestion that it extends beyond the immediate impact on the individual concerned to those who are dependent upon him—as I believe it does—I beg to ask leave to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am sorry to come back to the imaginary Mr. McNulty, because I know that the real Minister is a little exasperated by this. However, I remain very concerned about the position of innocent third parties. I took the liberty of tabling an amendment. I know that it is starred, because it was put down late, but it is an attempt to set out the protection that I think should be given to innocent third parties.

I have read the Proceeds of Crime Act 2002 and the relevant provisions in the Misuse of Drugs Act 1971, and I am perfectly willing to accept that the provisions set out in the Bill are broadly in line with those provisions. However, I ask myself a basic question: are the interests of the innocent third party properly safeguarded by the provision in new section 23B(1), which, in my view, is the key part of clause 34? I think that the honest answer is no. Nothing is said about the burden of proof or the standard of proof, and nothing actually sets out the criteria that a court has to adopt.

The Minister may well say that there is a body of case law arising from, for example, POCA or the Misuse of Drugs Act, and that the courts need no further guidance, but I find that a profoundly unsatisfactory explanation for two reasons. First, it seems to me that the citizen—the ordinary chap; the imaginary Mr. McNulty—is entitled to know what the law is by looking at the relevant statute without having to go to a body of case law to which, in reality, he will not have access. Secondly, although, at common law, we have long accepted judge-made law, and although it is inevitable that a majority of law is judge-made law, in the sense that statutory interpretation has to be in the hands of the judges, we parliamentarians should set out the tests and the criteria if we have the opportunity to do so. Here, we have not set out the criteria that address the question and we are relying instead on judge-made law from the past. Frankly, I do not think that is satisfactory. Given the opportunity, Parliament should set out the criteria and tests. If there is then ambiguity or uncertainty, the judges will have to interpret that. Simply shrugging off the responsibility seems to me to be profoundly unsatisfactory. We are not doing our job of safeguarding the innocents—in this case, the imaginary Mr. McNulty.

Edward O'Hara (Labour, Knowsley South)

Does the real Mr. McNulty wish to comment?

Tony McNulty (Labour, Harrow East)

I do. We touched on this matter last week. I understand why the right hon. and learned Member for Sleaford and North Hykeham wished to table his amendment, but it is unnecessary. If we followed his exhortation, we would have some quite large Bills. I do not believe that there is any ambiguity in the surrounding architecture of this or any other clauses in the Bill that relate to existing statutes, common law provisions or case law. It goes without saying that it is for Parliament to pass laws—good laws. Given that we already have the provision elsewhere and, as far as I can see, it has worked satisfactorily, and given the provision in the ECHR and the other oversight and safeguards that I described, new section 23B(1) makes it very clear that there is role for at least looking at claims of ownership from third parties regarding forfeited assets.

As the right hon. and learned Gentleman implies, the provision mirrors similar protections in the Proceeds of Crime Act, and Parliament did not consider, when passing that Act, that an amendment such as that which he is suggesting was necessary. It was not necessary then and I do not believe that it is necessary now. The safeguards already exist. It is not necessary to legislate in such explicit terms to prevent the courts from unjustly punishing innocent people. If we were considering the amendment—if it were not starred—I would argue that it was otiose, unnecessary and irrelevant. As was the case last week, I take the thrust of the right hon. and learned Gentleman’s argument, but I do not believe it is necessary to reflect that in the Bill.

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Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 140, in schedule 3, page 72, line 18, at end insert—

‘(c) in relation to a restraint order, any offence specified in Schedule 2 to the Counter-Terrorism Act 2008 (offences where terrorist connection to be considered).’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss Government amendment No. 141.

Tony McNulty (Labour, Harrow East)

Again, these are tidying-up amendments that look at a range of consequential impacts on other legislation and tidy the relationship between various bits of legislation. Amendment No. 140 does that for UK legislation and Amendment No. 141 inserts the same change for Scotland. Essentially, we add to the offences listed in schedule 2 the relevant offences in respect of which a restraint order could be made. That is necessary because schedule 2 offences are determined to have a terrorist connection—and thus allow the forfeiture powers in new section 23A to have effect—only at the end of proceedings, whereas a restraint order might need to be issued before proceedings begin in order to prevent the disposal of assets. I commend the amendments to the Committee.

Clause 39

Clause 45

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 95, in clause 45, page 33, line 12, leave out ‘such a determination’ and insert ‘section 42.’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment No. 96, in clause 45, page 33, line 15, leave out subsection (3).

Dominic Grieve (Conservative, Beaconsfield)

I would not seek to move amendment No. 96 on its own, because I think it is in fact quite clear what the clause means. Amendment No. 95 has been slightly overtaken by events, as we also have a Government motion to transfer the clause. It might therefore be sensible for me not to go into any further detail on amendment No. 95 except to say that I had difficulty reconciling clause 45 with the terms of clause 42, which was why the probing amendment was tabled. I would like the Minister to address his remarks to that. It may even be that he can properly do so by merging it with his speech in respect of transferring the clause, because I think the consequence of that will almost certainly be to make everything very much clearer, whereas I found the Bill unclear with clause 45 in its present location.

Tony McNulty (Labour, Harrow East)

As the hon. and learned Member for Beaconsfield suggests, it might be useful if I move the motion referring to this clause at the same time, as it goes to the heart of the amendment.

Edward O'Hara (Labour, Knowsley South)

Order. I am advised that it would be appropriate to keep the two separate.

Tony McNulty (Labour, Harrow East)

This clause was the initiative test for the Committee. Quite deliberately, it was misplaced. The challenge was for anyone to read the Bill properly and try to relate clause 45 to clause 42. The prize goes to the hon. and learned Gentleman. I would be quite worried if, by the time we got to clause 45, the Committee, including myself, read it in the context of clause 42 and let it go. The measure does not belong as clause 45 at all. It refers entirely to, and should logically follow, clause 39. If it does—I am not pre-empting our subsequent debate, though I hope and pray the Committee is with me on my motion—I think the fears and concerns with which the hon. and learned Gentleman’s amendments deal would disappear almost overnight, or a bit quicker than overnight, and logic would be restored to the Bill. The perfectly and elegantly crafted amendments Nos. 95 and 96 would then fall away as utterly irrelevant, with the one mistake in the Bill—it was quite deliberate, I assure you, Mr. O’Hara—having been identified by the hon. and learned Gentleman, who is to be congratulated for stumbling over it.

David Heath (Liberal Democrat, Somerton and Frome)

I am prepared to give the Minister the benefit of the doubt. I think he is going to be enormously persuasive when he moves his motion for the transfer of the clause. For that reason, I am not minded to support the amendments at the moment, although we might of course have to return to them on Report.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his comments and grateful that my late-night reading of the Bill has had some success in identifying oddities. I look forward to hearing the Minister’s comments on the transfer of the clause. I agree that that will produce the clarity that is currently entirely absent, so I beg to ask leave to withdraw the amendment.

Tony McNulty (Labour, Harrow East)

I beg to move, That Clause 45 be transferred to end of line 24 on page 29.

This is entirely due to a sequential and printing error. Under clause 45, which is titled “Offences to which this part applies: offences having a terrorist connection”, notification requirements would apply to someone when a court finds that their offence was connected to terrorism provided they met the necessary sentence threshold. Logically, as the hon. and learned Member for Beaconsfield implied, the clause should follow clause 39, which sets out terrorism offences to which notification requirements would apply. We are simply making a minor, technical change that has no effect on existing policy. The clause would look rather daft if it stayed after clause 44, so I urge the Committee to agree to the transfer of the clause 45.

Dominic Grieve (Conservative, Beaconsfield)

May I raise one issue? I might have misunderstood this, but the Minister will be aware that the determinations in clause 45(2)—now to be transferred—appear to be governed by clause 42. Is that correct, or will other provisions also govern the need to make a notification requirement?

Tony McNulty (Labour, Harrow East)

As I read the matter, that is entirely correct and addresses the cohesion of the architecture of the way in which the clauses interplay with each other—[ Interruption. ] Apparently I am wrong. The determination is made under aggravated sentencing in clause 29, apparently, and how that interplays with clause 42.

Dominic Grieve (Conservative, Beaconsfield)

Yes, I can see how that may be the case, as clause 29 is titled “Sentences for offences with a terrorist connection: England and Wales”. However, clause 42 is titled “Sentences or orders triggering notification requirements” and clause 45(2) relates to a

“person to whom the notification requirements apply by virtue of such a determination”.

Will the Minister go away and think about this between now and Report? I know that people have very little sympathy with lawyers, but some poor lawyers and unhappy judges in the Crown court are going to have to wrestle with this. There seems to be a lot of cross-referencing required for the introduction of clarity.

I am confident that the Government have probably got the overall picture right, but the approach is a bit ponderous and I wonder whether it can be simplified.

Tony McNulty (Labour, Harrow East)

That is a fair point and we can certainly look at that. Clause 29 sets out the schedule 2 offences that are potentially in the frame for terrorist offences and, therefore, notification. Clause 42 makes it clear that the sentence must be at least 12 months for notification to kick in.

The definition, the criteria and the notification determination order are fairly clear. If it appears that there is a lot of hopping about and cross-referencing and we can tidy that up with no significant change to the policy, which I do not think is what the hon. and learned Gentleman is seeking, I am happy to take away that principle. Having rather rapidly refreshed my memory of clauses 29 and 42, the determination of terrorist offences and the 12-month caveat for of sentence notification determination and, therefore, notification, I think that this approach is quite logical, albeit a bit clumsy. I will, as the Committee asks, look at it further, but I think that it works.

Clause 40

David Heath (Liberal Democrat, Somerton and Frome)

I can see what the clause says and can conceive of circumstances in which someone could be before a service court for an offence with a terrorist connection, particularly with the training of individuals or supply of armaments—the army rifle off the back of a lorry syndrome. I would be interested to know why it was felt necessary to have this specific exclusion.

Tony McNulty (Labour, Harrow East)

Notification requirements would apply only to those convicted of terrorism or terrorism-related offences, as the rest of the clauses make clear. It is not anticipated that a terrorism or terrorism-related offence would ever be dealt with exclusively by a service court because a terrorism-related case would be transferred to a civilian court, given its seriousness. Almost without reservation, I do not think there is any ambiguity there. As such, it is not necessary for these notification requirements to be made to work for offences dealt with by service courts, and so these are excluded from this part of the Bill. The clause defines service courts, in subsections (2) and (3), both in their present guise, and when the relevant provisions of the Armed Forces Act 2006—already passed—come into force. I think it is relatively straightforward. It was a perfectly reasonable question, but I beg to move that clause 40 stand part of the Bill.

Crispin Blunt (Conservative, Reigate)

I have limited experience of service courts in Germany, and I think it is a question of jurisdiction here. I am not sure that a serviceman under a status of forces agreement in Germany who is then charged with an offence under this would either have a choice of being dealt with by a service court or being dealt with by a German court, and that is where the jurisdictional debate would lie. I am not entirely sure that there is the option then of bringing someone back to a civil court in the United Kingdom in those circumstances.

Tony McNulty (Labour, Harrow East)

The broad sweep of this terrorism legislation and others already on the books do make, as I understand it, for the jurisdiction issue of UK citizens to run nationally and internationally. I do not think that case would prevail. The broader point, about whether to be tried in a German or UK court for serious terrorism offences, does not tie in to the point the hon. Member for Somerton and Frome made about service courts being excluded. There might be issues there but I do not think that is germane to the point made by the hon. Gentleman.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful to the Minister. Of course I understand that, in almost all circumstances, a case of this kind would be transferred to a normal criminal jurisdiction. I just cannot entirely see why it is necessary to exclude a service court for the odd circumstance of perhaps late evidence in the progress of a trial in a service court, which has led to a suggestion of an aggravated offence by reason of connection with terrorism—why should the case then have to be abandoned in order to put it before an ordinary criminal court? I do not understand why the service court needs to be excluded, if the circumstances are such that it simply would not apply.

Clause 41

Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 143, in page 30, line 1, leave out paragraph (b) and insert—

‘(b) immediately before the commencement of this Part the person—

(i) is imprisoned or detained in pursuance of the sentence passed or order made in respect of the offence,

(ii) would be so imprisoned or detained but for being unlawfully at large, absent without leave, on temporary leave or leave of absence, or on bail pending an appeal, or

(iii) has been released on licence, having served the whole or part of a sentence of imprisonment in respect of the offence.’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss Government amendments Nos. 144 to 146 and 157.

Tony McNulty (Labour, Harrow East)

Amendment Nos. 143, 145, 146 and 157 mean that on commencement, notification requirements apply to offenders who would be imprisoned or detained for a trigger offence at that time but for exceptional circumstances—for example, they are on temporary leave of absence or on bail pending an appeal on the day of commencement. This would make the clause consistent with section 81(6) of the Sexual Offences Act 2003—which refers to retrospective application of notification requirements for sex offenders.

Amendments Nos. 143 and 146 make it clear that, on commencement, the notification requirements apply only to those released on licence if they are on licence for a terrorism offence for which they received a sentence of more than 12 months.

Amendment No. 144 is a minor amendment to clause 41 to remove the reference to a “finding” from subsection (2)(a).

These are—I would tell the Committee if they were otherwise—simply tidying-up and technical amendments as befits Government amendments at Committee stage, and I commend them wholeheartedly to the House.

Clause 42

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 35, in page 30, leave out lines 33 to 34.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following amendments: No. 33, in page 30, leave out lines 42 to 44.

No. 37, in page 31, leave out lines 4 to 8.

No. 38, in page 31, leave out lines 14 to 19.

No. 36, in page 31, leave out lines 27 to 32.

No. 34, in page 31, leave out lines 38 to 40.

David Heath (Liberal Democrat, Somerton and Frome)

This is a series of probing amendments to secure the response of the Minister on two principal points. We have not sought to argue against the notification procedure as a whole on the grounds of the utility of the procedure. We understand that this is a matter to ensure public safety, rather than an extra punitive measure on the part of the state against the accused. This is not part of the sentence; this is to ensure public safety following the expiry of the sentence. It is a principle that has been used before in the case of sex offenders and violent offenders. I have a concern that we have a proliferation of registers and notification procedures and an increasingly complex system, but I am not proposing to investigate or further dissect that matter now.

This series of amendments deals with two specific issues—first, how we deal with juveniles and secondly, how we deal with the insane and whether it is appropriate to use this notification procedure for those two classes of offenders, or whether there are more appropriate ways of dealing with them. I fully accept that simply because someone is young does not make them any less dangerous if they have a propensity to terrorist offences. I accept also that if someone is insane and has a propensity to terrorist offences, one must be aware of that, but I do think that there are regimes that may be more appropriate than the notification process before us today for dealing with those two classes of offender.

In the case of juveniles, one must hope that a young person who gets involved with terrorist connections and finds himself accused and convicted of terrorist offences is capable of rehabilitation and education and that that person has the opportunity not to pursue that course in their future life following any sentence that he may serve. It may be more difficult in the case of an adult, but we have always based our legal system upon a clear principle of rehabilitation of young offenders. That is particularly the case where there is a degree of idealism in the young that might be misplaced and inappropriately expressed in the form of support for terrorist activities, or indeed where there may be a coercive element, in the case of a young person who was in contact with people who are conspiring to commit terrorist offences. My only question is the appropriateness of this procedure to those two classes of offenders where I suspect that there is a better and more supportive, more appropriate way of dealing with them to ensure they do not re-offend and that the public safety is ensured. This is a rather bureaucratic and onerous process—the fact that it is onerous is not necessarily an argument against—but this process may not be the most effective way of dealing with them.

Dominic Grieve (Conservative, Beaconsfield)

I sympathise with the points made by the hon. Member for Somerton and Frome, and the amendment that I have tabled that comes next in sequence is very similar in intention. It is a probing amendment looking at the question of whether the court should have any discretion as to whether notification should be required.

We will consider this, I suppose, when we come to the related section on duration in clause 51, which states that anybody sentenced to a period of more than five years is required to submit to notification for the rest of their lives. On any showing, that is a fairly onerous requirement. While it is certainly not intended to be punitive, it is nevertheless a considerable intrusion on a person’s private and family life, particularly because, in addition to the explicit requirements laid down in clause 51, it is clear that it will be possible for the Secretary of State to make by affirmative order further requirements—the nature of which we currently do not know—in respect of notification. That is something we will come back to and can perhaps debate further later this morning.

One should not lose sight of the fact that, while notification is a very important requirement and one which may well be for public protection, we are widening the scope of intrusive state powers and removing the old principle that when a person had finished serving their sentence they were, effectively, on the way to rehabilitation and, apart from the requirements of the Rehabilitation of Offenders Act 1974 for notification in getting a job, were free to do what they like.

The justification always advanced for including sex offenders in a notification system was that they appeared to have a propensity to commit such offences and were not amenable to rehabilitation, and that under no circumstances was rehabilitation justified because in truth we could have little confidence that it was ever going to be possible. That is rather different from terrorist offences. In this country, at the moment, there are previously convicted terrorists serving in Government in Northern Ireland, and we appear to have accepted that it is possible for them to change their ways.

Indeed, if we are to beat the current menace of terrorism in this country, I have absolutely no doubt that it will come about only by virtue of the fact that some people who are attracted to terrorism at present will decide to abandon it, and may well turn out to be rather important citizens. There are already one or two examples of people who have been lured into this area already and are now writing books about their experiences.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. Friend makes a very valuable point here, and I wonder whether his anxieties would be reduced if there were a provision in the Bill that would enable a person to apply to the court to vary or to revoke a restriction order. So far as I can see, there is no such provision in the Bill as it stands. I may be wrong about that.

Dominic Grieve (Conservative, Beaconsfield)

I agree with my right hon. and learned Friend. This is a subject which, I confess, has troubled me in other contexts. I have made speeches in the past about my view that it is generally very difficult in this country to be fully rehabilitated for criminal offences, even extraordinarily minor offences. In one case in my constituency, a lady employed as a matron or senior carer in a care home who had a conviction for shoplifting some 20 years before in circumstances clearly linked to her psychological state at the time and the breakdown of her marriage, and who had no other previous convictions, found that she was never able to obtain senior employment again because of the provisions of the Rehabilitation of Offenders Act 1974 and the fact that she had to make a disclosure. More relevantly, the fact that no allowance seemed to be made by anyone for the circumstances surrounding the offence meant that a taint remained with her, which was as damaging to her as I suspect it was unproductive, in the long run, for the community. This subject has long been of concern to me.

Through these notification requirements, we are adding, albeit in a slightly different way, to the control architecture. I can see that that has compelling justifications, and I do not disagree with it in principle, in view of the seriousness of terrorism offences. However, I agree with my right hon. and learned Friend that a system could be created in which, in 25 or 30 years’ time, individuals sentenced to more than five years for a connection with terrorism could be completely rehabilitated—and even turn out in the long term to be campaigners against terrorism—but would still find themselves subject to such requirements at a certain amount of public expense and to no great public benefit. Perhaps we ought to consider whether a mechanism exists to allow people to make an application along the lines that my right hon. and learned Friend suggested.

Tony McNulty (Labour, Harrow East)

This short debate has been quite interesting and of some value. The regime is not particularly onerous, but I do take the point made by the hon. Member for Somerton and Frome that it might be worth exploring elsewhere the proliferation of registers, all of which are important on their own terms. There may be some discussion to be had about getting them all in one place as a kind of public safety register. I do not agree that being on the register and having to notify is excessive or onerous.

I do not think that the hon. Gentleman intended it, but there was a touch of a counsel of despair in his view that those on the list who are under 18 will never be rehabilitated. Being on the register is not, in this context or in others, an anti-rehabilitation measure, although I take his point in that regard. In terms of the specifics of his amendments—regarding the insane, temporarily or otherwise, and under-18s—we have simply sought to reflect the sex offenders register. That relates to his other point: if there is to be a proliferation of such registers, let us at least have them within the same architecture and framework. That is a fair point. In that context, I would resist his amendments.

As in the case of the Sex Offenders Act 1997, I am fairly confident about the universality of the notification criteria—that, over 12 months, it will capture everybody. I share some of the discomfort and, perhaps, disappointment about there being further flexibility down the line. That might be worthy of further exploration, though not necessarily here.

I take the point about those sentenced to five years. I accept the broad sweep of the point that we need to take risks in this area: in relation to whom we engage with, on what level and with what degree of sincerity, given their past. There are some excellent ex-Hizb ut-Tahrir people around whom I take entirely at face value and who do some very good work in the broad areas of prevention, rehabilitation and other work to which the amendment refers. I cannot go into too much detail, but I have also met another chap who has supposedly seen the light and no longer indulges in such activities—that might or might not be the case; he might still be “at it”, for want of a better phrase. The matter is not quite sub judice, but it is certainly sensitive at the moment, so it is not for me to go into any detail. None the less, it is perfectly right and fair to meet him, because if we can learn from such individuals about rehabilitating others—whether on the fringe or in the middle of Hizb ut-Tahrir or of violent extremism and jihadism—it would be irresponsible not to do so.

I take the broad point about rehabilitation and someone not necessarily always being that which they were convicted for being in the first place. We need to have regard to that, but it is not achieved in any way, shape or form by the amendments. I am comfortable with the universal nature of the register—for it to be effective, anyone who is convicted for 12 months or more must be on it. Some interesting points were made about what should happen further down the line that I am happy to take away and explore, but not in the broad thrust of the current context because that is not appropriate.

Going on the register is not the be-all and end-all for sex offenders, as the hon. Member for Somerton and Frome will know. For the more serious, there are multi-agency public protection arrangements—MAPPA—and other elements in place, not in this Bill but in the broader prevention work with local government and the police. Some chief constables have been quite forthcoming on this and do see the potential radicalisation of the very young as a child protection matter, in the same way as guns, gangs and other issues. The more enlightened police forces are exploring that as well.

I know that the hon. Gentleman was not putting forward a counsel of despair—that if the under-18s are included then, Lord Almighty, that is rehabilitation out the window for them—and I accept the sincerity with which he makes his argument, but this clause, Bill and amendment are not the place to make his perfectly proper points. I am happy to have a broader discussion on MAPPA arrangements, child protection and other matters, but I will not give in on the universal nature of notification and people on the register.

David Heath (Liberal Democrat, Somerton and Frome)

That was a very useful exchange all round. I was not advocating a counsel of despair—I had this argument with the Under-Secretary of State for the Home Department, the hon. Member for Gedling in the context of the Criminal Justice and Immigration Bill, and considerable progress was made during the course of that Bill, now an Act. I am grateful to him for the way in which he responded to some of the concerns that I raised in that context.

The issue of light at the end of the tunnel, particularly for young people, is important. I know that the notification procedure is not the most onerous, but it is a genuinely onerous responsibility and it does tend to discourage, particularly a young person who is carried away with an enthusiasm which he or she might completely foreswear later. We know that young people have immensely strong enthusiasms for causes, for religions, and for all manner of convictions which they later find to be completely wrongly based. We therefore need to be very careful to make it clear that there is light at the end of the tunnel. That is partly for exactly the reasons that the Minister gave: it is not only for the rehabilitation of the individual, but because those who have seen the issue from the other side, recanted and said, “No, this is wrong, this is misguided and not a position that I want any other young person to find themselves in ever again,” can be the most valuable advocates on behalf of decent society that we could ever have.

For that reason alone, as the right hon. and learned Member for Sleaford and North Hykeham said, we need to consider a process by which such arrangements can be lifted on application, if nothing else, so that somebody who quite clearly no longer represents a threat to the public is not treated as though they do.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I may have misunderstood what the Minister said, but my understanding was that while he was sympathetic to the proposition that there should be a process whereby people could apply to the courts to vary or discharge a restriction order, he was not minded to include such a provision in the Bill. If that was the correct understanding of what the Minister said, does the hon. Gentleman share my dismay that we are not taking the opportunity to do that which in principle is desirable? It could be done on Report or in the other place, but it should be done in this Bill.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful for that. The Minister can speak for himself. I am not sure that I did interpret his comments in that way. He made it quite clear that he was not prepared to accept the amendments or the principle that there would be a different notification regime from those already in place elsewhere. He wanted simplicity in the notification regime. He can correct me if I have misinterpreted him, but I am not sure that he entirely shut the door to further consideration of whether there should be some process of variation or discharge.

Tony McNulty (Labour, Harrow East)

I do not think that I did. My main concern also relates to the next amendment: at the front end, the criteria for notification on the register should be mandatory. I made it clear that I am happy to go away and reflect on what degree of flexibility might be afforded in this Bill or elsewhere further down the line. However, not least because of the read-over into the sex offenders register and all the legal architecture behind that, the mandatory element at the front, whatever the criteria, must be sacrosanct.

I do take the broad sweep of the points about what happens subsequently and further down the line, and I have committed to going away and reflecting on that and coming back with a provision, if appropriate, for this Bill, or at least coming back and saying that I have reflected on that but am not sure that it is desirable.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister. He has confirmed my interpretation of what he said. That is a positive outcome of this brief debate. I beg to ask leave to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

In the circumstances, I shall not move amendment No. 94, because the debating intention was identical to that of the earlier amendment.

Clause 43

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 175, in clause 43, page 32, line 4, leave out paragraph (a).

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment No. 176, in clause 43, page 32, line 5, leave out from ‘force’ to end of line 9.

Dominic Grieve (Conservative, Beaconsfield)

This is a simple matter—just to have it on the record. As I understand the purpose of clause 43, it is to ensure that there will be no retrospectivity applying to any decision to reduce a specified term or period requiring notification but, at the same time, will give individuals the benefit of any retrospectivity in cases of extending the period and thereby taking people out of the regime altogether. In those circumstances somebody who has been made subject to a notification process but finds subsequently that the Government change the rules so that they would not have been subject to that process at the outset of notification would thereby no longer have to register.

Tony McNulty (Labour, Harrow East)

I am grateful that the hon. and learned Gentleman suggests that these are probing amendments.

Clause 42 specifies that sentences or orders of 12 months or more for relevant offences would lead to the notification requirements applying, as we have discussed. We believe that this threshold will lead to notification requirements for convicted terrorists who pose a significant risk to the community on their release from custody.

It may be found in future that the threshold captures serious offences not deemed to present sufficient risk to justify the application of the requirements because the threshold is too low. Alternatively, the threshold may be found to be too high. The clause provides the Secretary of State with an order-making power to vary the sentence or order thresholds to ensure that they remain effective, proportionate and justified. This will be subject to parliamentary scrutiny as the order is subject to the affirmative resolution procedure. If the order reduces the thresholds for notification requirements, they will only apply to those dealt with after the order comes into force. However, if the order increases the thresholds, for example, from 12 months to two years, individuals who were subject to notification requirements because of a sentence of up to two years, would no longer be required to notify as from the date the order comes into force.

It is as the hon. and learned Gentleman suggests. With that explanation, I hope that the amendment will be withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I have no difficulty with that explanation and will ask to withdraw the amendment.

That somebody has clearly seen the necessity of making the provision highlights the fact that although notification in itself may not be viewed as a punishment it is nevertheless an onerous requirement that has to be dealt with fairly. If it were not for that, there would have been no requirement to put in clause 42 at all. I beg to ask leave to withdraw the amendment.

None

David Heath (Liberal Democrat, Somerton and Frome)

My brief question also relates to clause 52, which sets out offences relating to notification. The offence, of course, is failure without reasonable excuse to comply with initial notification as outlined in clause 44. Presumably, that offence is triggered by any failure to comply with any part of clause 44, and what worries me—it is a perfectly simple concern—is subsection (2)(b), the national insurance number. I can see that it is entirely possible for a person to comply in every respect with clause 44—to appear at the police station within the three-day period, give their date of birth and home address, which they know, and all the other details which they know, but they may not know their national insurance number. They may thus not be able to comply with clause 44.

There is no requirement to know one’s national insurance number; it is helpful if one does, but there are circumstances in which people do not know or perhaps have never been allocated one, or have been allocated two, which is sometimes the case. As the offence is non-compliance, it worries me that the compliance is absolute in terms of the whole provision, yet one element is not necessarily in the control of the individual to whom the notification order applies.

Crispin Blunt (Conservative, Reigate)

I have a brief point on which I seek clarification. In what circumstances is it anticipated that someone who is unlawfully at large would notify their address and all the other required information to the police? I just draw attention to subsection (1)(b)(ii), which puts a duty on someone who is unlawfully at large to provide their details. I would be grateful if the Minister—[I nterruption . ] I understand that, but the punishment under the provision is five years on conviction. I would have thought that someone unlawfully at large on a conviction for being unlawfully at large would already be subject to a punishment of that order. I would be grateful for the Minister’s clarification.

Tony McNulty (Labour, Harrow East)

On the point made by the hon. Member for Somerton and Frome, if he had committed the Bill to memory—as no doubt he has, but has forgotten it, rather as I have—he would have rushed to clause 52, where it says very clearly under “Offences relating to notification” that a person commits an offence who

“fails without reasonable excuse to comply with...section 44”.

It would be a reasonable excuse that a person had tried and been unable to get his national insurance number from the Department for Work and Pensions or whomever, but told the police that he would try to get it as quickly as possible. That would be a reasonable excuse, so I think the interplay between the two is perfectly fair. As the hon. Gentleman says, giving a false name would be a different matter.

An individual’s being at large does not obviate the need for them to comply with the notification order. If they are unlawfully at large and have a duty to notify and fail to do so, that is an offence with a penalty of up to five years in prison, so it is proper that the words “unlawfully at large” are included. I suspect that the meaning of those words is not covered by “reasonable excuse” in terms of clause 52.

The wording of the clause makes sense, but I take the point made by the hon. Member for Reigate. The legalese says:

“A person to whom the notification requirements apply must notify the required information to the police within three days...If the person was dealt with...before the commencement of this Part and... has been released on licence or...is unlawfully at large”

on commencement, and so on. As the hon. Member for Somerton and Frome implied, the notification elements do not disappear simply because a person is unlawfully at large; they are still germane and relevant, which is why they are mentioned in the clause. However, clause 52 answers the hon. Gentleman’s broader point.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful to the Minister. I hope that every police officer who is administering that record will note carefully the Minister’s comment that if one happens not to know one’s national insurance number it is a reasonable excuse for not providing it within the three-day period.

Clause 46

Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 147, in clause 46, page 33, line 37, at end insert—

‘This does not apply if the person is at the same time required to notify the police under section 44 (initial notification).’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss Government amendments Nos. 149 to 152.

Tony McNulty (Labour, Harrow East)

These are deeply tedious technical points. Let me explain the tedium.

Amendment No. 147 ensures that there is no double requirement to notify changes by stating that if the individual is already required to notify the police upon his release from custody, prison or detention in a hospital, he is required to notify only under clause 44 and not under clause 46 as well, which could be an inference under the current draft.

Amendment No. 149 adds notifications that are made to the police under clause 47—“Periodic re-notification”—to those covered by “previous notifications” in clause 46. Amendment No. 150 clarifies that the one-year period for re-notification under clause 47 runs from the last notification made by the individual.

Amendment No. 151 makes it clear that a person is not required to re-notify under clause 47 if the annual re-notification date falls when he is remanded in custody, imprisoned or detained in a hospital. Further to that, amendment No. 152 provides that if the person is remanded in custody, imprisoned or detained in a hospital when the period of one year since his last notification ends, he is required to notify the police on his release in accordance with clause 46(4); it further provides that the information he has to notify is that specified in clause 44(2).

The amendments tidy up a range of technical points in respect of the interlocking nature of all the clauses in the part of the Bill relating to notification requirements. I commend them to the Committee.

David Heath (Liberal Democrat, Somerton and Frome)

I have one small anxiety. I hope that the people to whom the notification orders apply are made aware, while in custody, of all the details about what they are required to do. I am thinking particularly about the fact that they are required to provide notification that they have been released from custody. Many people might assume that the criminal justice system would be aware that a person had been released from custody, although that is an unsafe assumption in the current circumstances. Nevertheless, a reasonable person might assume that the criminal justice system was aware that a court had released somebody from custody or from detention in a hospital. Unless that is spelled out to the person, I fear that they might inadvertently be in breach of the notification procedures even while they were attempting to do everything required of them, having made the sensible assumption that once a court says “you are now free to go”, the fact is logged somewhere in the system.

Tony McNulty (Labour, Harrow East)

That part of the hon. Gentleman’s comments is perfectly fair, but it is incumbent on the individual—having previously been under a notification requirement—to understand fully where that requirement picks up again once he is released from custody. It is a bit two-way but I take the point none the less.

In terms of the hon. Gentleman’s first point, I say simply that we are getting there. The one thing I have discovered, having been tangential to—but never responsible for—prisons and the interface between prisons and criminal justice, is the enormous churn of numbers on a daily basis. It is quite phenomenal when explored in any detail—those on short term and those being moved from security to open prisons as a prelude to release. The hon. Gentleman is right; any normal person would expect that everyone in the entire system knows when someone is released, but sometimes there is more than one link-up to make in that regard.

There are also responsibilities on the individual, however, bearing in mind that they are already under a notification requirement and, for whatever reason, are now detained in prison or custody. They should know precisely when they should pick up and notify again in terms of the register regime. Between the individual and the criminal justice system, it is to be hoped that sanity will prevail.

Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 148, in clause 46, page 33, line 40, leave out from ‘changes’ to the end of line 41 and insert ‘in that information’.

This amendment simply makes the drafting throughout clause 44 rather simpler and easier to understand in terms of how it relates to clause 46(5). It does not change the policy in any way, but it links to the hon. Member for Somerton and Frome’s earlier point about how key elements relate to each other. I hope the amendment makes that clearer rather than otherwise, and I commend it to the Committee.

Clause 47

Clause 50

Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 153, in clause 50, page 35, line 37, leave out from ‘regulations’ to end of line 41.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss Government amendment No. 154.

Tony McNulty (Labour, Harrow East)

Amendment No. 153 removes part of subsection (2)(d). It provides the Secretary of State with a slightly wider power to prescribe other information to be notified. Further information about the person’s departure from or return to the UK and the person’s movements while outside the UK, as currently mentioned in the clause, will be covered, but further information need not be limited to those matters. That will allow the Secretary of State to consider specifying information such as the persons with whom the person stayed while abroad.

We think that the slightly wider vires are appropriate. The provision is in line with the foreign travel notification requirements for registered sex offenders, which require information such as the date of departure from the UK, the destination, additional places they intend to visit, the carrier they intend to use, details of first-night accommodation, and the date and location of re-entry to the United Kingdom. Furthermore, the regulations are of course subject to the affirmative procedure, so Parliament will have an opportunity to debate fully the matters included in them.

Amendment No. 154 removes subsection (5) because it is not necessary. Clause 86(2)(a) already enables regulations made under the Act to make different provision for different cases or circumstances, and that must include the power to make different provision for different descriptions or categories of person. The provisions tidy things up rather than anything else and make things all the more explicit. I commend the two amendments to the Committee.

Dominic Grieve (Conservative, Beaconsfield)

I was interested in the Minister’s comments; I assumed that amendment No. 153 was simply because those particular paragraphs were entirely otiose—to use those buzz words that we like. They are already covered by other bits in the surrounding clauses.

Clause 51

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 39, in clause 51, page 36, line 8, leave out ‘an indefinite period’ and insert ‘five years’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following amendments:

No. 40, in clause 51, page 36, line 44, at end insert—

‘(1A) Notification requirements in relation to offences under subsection (1) may be renewed on one or more occasions if it is considered necessary for purposes connected with protecting members of the public from a risk of terrorism, for the notification requirements to continue in force.’.

No. 41, in clause 51, page 36, line 45, leave out ‘10’ and insert ‘5’.

No. 42, in clause 51, page 36, line 46, at end insert—

‘(2A) Notification requirements in relation to offences under subsection (2) may be renewed on one occasion if it is considered necessary for purposes connected with protecting members of the public from a risk of terrorism, for the notification requirements to continue in force.’.

No. 43, in clause 51, page 37, line 3, leave out subsection (4).

New clause 7—Discharge of notification requirements

‘(1) A person subject to notification requirements may apply to the court that made the determination for an order discharging the person from notification.

(2) The court may only discharge the person from notification requirements if satisfied that there are exceptional circumstances indicating that the person no longer presents a danger to national security or to public safety.

(3) The court may not discharge the notification requirements before the end of the period of five years beginning with the date on which the notification requirement comes into force.’.

David Heath (Liberal Democrat, Somerton and Frome)

These proposals return us to a debate on clause 42 that we held in a pre-emptive fashion. I set aside amendment No. 43, which deals with the point of insanity that we have already covered, and deal instead with the period for which notification requirements apply, which is the purport of amendments Nos. 39 to 42. As the Bill is constructed, there is an indefinite period for serious cases and a ten-year period for less serious cases—any terrorism offences are serious. My amendments would effectively put break clauses in those periods every five years. The initial notification period would be for five years; in the case of a serious offence, it could be renewed on a five-yearly basis to the point of being an indefinite notification. In the case of less serious offences, it would be for five years in the first instance, which could be renewed to apply for a further five years, thereby making the ten years that the Government are requesting through the Bill.

The most important thing is to allow the courts to consider the individual’s circumstances, the environment in which the order is made and to ensure that the notification orders are still appropriate. They may be inappropriate because the person has changed their views and conduct entirely and can demonstrate that that is the case to the satisfaction of the courts. It may be, as the hon. and learned Member for Beaconsfield said earlier, that people who have engaged in terrorist activities can sometimes make quite substantial changes to their lifestyles to the point where they become part of Administrations in the UK or abroad. Those would be cases in which, I assume, it would be inappropriate to retain a notification procedure. The circumstances of the individual and their propensity to be a danger to the public may change.

It may well be that the political circumstances change entirely and we happily move out of this period. I do not see it happening in the very near future, but I would like to think that at some stage in the future we shall no longer have the present terrorist threat. There may be other terrorist threats, but I certainly hope that the present threat—the reason that the Government and we in Parliament are so engaged in taking forward these changes to legislation—will have a period. It is to be hoped that, at some stage in the future, what are effectively emergency powers will no longer be required.

I hope that that will happen in the short term; my fear is that it will not, and that we will be saddled with measures of this kind for some time to come. I do, however, think it is appropriate for a court to consider all the matters before it, and decide at a quinquennial review whether the notification procedure is still required. If necessary, it will renew it. If not, what I maintain are onerous requirements on the individual will be lifted at the point at which they cease to have an effect in terms of protecting the public and simply become a burden on the individual that is punitive, rather than for a wider good.

Dominic Grieve (Conservative, Beaconsfield)

As the hon. Gentleman will be aware from the debate we had on the earlier clause, I am sympathetic to the points he makes. In addition, we have our own new clause 7 in this group. Bearing in mind the comments that I made earlier, there is a possible solution for the Minister in terms of a clause allowing a person to make an application after five years to be discharged from the notification requirements, if the court is satisfied that there are exceptional circumstances indicating that the person no longer presents a danger to national security or to public safety. If the Minister has had a chance to look at that, I would commend it as a possible formula.

There are different ways of approaching this, but new clause 7 seems to me to put the burden on the individual concerned to make a case to the court. That would meet some of the concerns raise by the hon. Gentlemen, but in a slightly different way. I have a slight preference for new clause 7. As the Minister indicated an interest in looking at this again, it might be something to which he can return on Report. If he does not, we may well do so in terms of new clause 7 as a possible formula, which I do not think will do anything to defeat the perfectly proper objectives of the notification procedure.

Tony McNulty (Labour, Harrow East)

As I have said in previous debates, I am not unsympathetic to doing something at that end, but I do not think we should do anything at all to the mandatory end. I do not think these amendments suffice. New clause 7 is flawed. It talks about the original court of determination, but under the current regime, the court will not determine anything. The notification requirement is automatic with the sentence, so it cannot be referred to the original court of determination.

However, I have said—with, I thought, extraordinary generosity—that I will take these matters away and consider them. I shall do so with a view to coming back on Report to say that, having looked at the matter further, on reflection, I do not agree with its broad thrust or, indeed, that there are ways in which we can at least give people the option before the end of 10 years of looking at coming off the register given their circumstances. In that context, I would far rather have the leisure to consider whether there are ways that we can proceed, rather than accepting clauses, however well intentioned, that might not have quite the import or legal outcome that their proponents desire.

David Heath (Liberal Democrat, Somerton and Frome)

As I said earlier, we have already discussed this and heard the Minister’s view, which he has now repeated. I understand entirely why he wants the procedure to be mandatory at the outset. I am interested in the escape clause further down the line and how we remove the notification procedure from someone to whom it is no longer appropriate for it to apply. He has said that he will consider that again and we will consider the points that he has made. I feel sure that we will wish to debate the matter on Report, but I beg to ask leave to withdraw the amendment.

Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 155, in page 37, line 3, leave out from ‘section’ to ‘(finding’ in line 4 and insert ‘42(1)(b)(iii), (2)(b)(iii) or (3)(b)(iii)’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss Government amendment No. 156.

Tony McNulty (Labour, Harrow East)

Amendment No. 155 corrects an error in clause 51(4) because the inference could be made that an individual can be retried for the same offence when he has been acquitted by reason of insanity or disability. It may be reasonable to put that in statute, but I think not and I do not want the inference there. It is simply not the case. The reordering and references to section 42(1)(b)(iii), (2)(b)(iii) and (3)(b)(iii) corrects that.

Amendment No. 156 simply removes “terrorism offences” in clause 51(5)(a) and replaces it with the broader term:

“offences to which this Part applies”.

That provides some coherence with the rest of the provisions that we are discussing under part 4 notification requirements.

These are perfectly innocent little amendments. I keep saying that so that hon. Members become all the more suspicious of Government amendments and examine them in more detail. These are innocent, and I commend them to the Committee.

Schedule 4

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 48, in page 75, line 25, at end insert ‘and

(c) the court exercising jurisdiction under that law has not, in respect of the corresponding foreign offence, relied on evidence or information obtained through torture, duress or other means that would render such evidence or information inadmissible in a court in the United Kingdom.’.

The purpose of this amendment is to enable the Minister to give assurances that I hope he will be happy to do in respect of the schedule and conditions for making a notification order concerning an offence that is tried under law enforced in a country other than the United Kingdom. I believe that the spirit of our treaty obligations requires us not to make such an order in respect of an offence that is tried using evidence that would be inadmissible in this country by reason of it being obtained under duress or by torture. I certainly think that that is an obligation in any country with which we have dealings and under this provision within the Council of Europe or the European Union, but I would like an assurance that that will be the case in any jurisdiction. I do not want people who have been tortured, for example, in Uzbekistan, and found guilty of an offence using the evidence obtained by torture to find themselves subject to further penalties, even of this kind, in this country as a consequence.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Perhaps we should keep in mind that some of the practices of the United States Government are quite unacceptable, particularly the long periods of detention in Guantanamo Bay and the practice of water-boarding, which the President of the United States appears to have sanctioned. We should keep in mind that the Government of the United States are using methods that have the result of providing information in circumstances that we would regard as wholly unacceptable.

David Heath (Liberal Democrat, Somerton and Frome)

I have that at the forefront of my thoughts. It is not merely those countries that are openly despotic, but those countries that would say that they accept the same principles of law that we understand in this country, who nevertheless feel that there are exceptional circumstances that allow them to use processes that in anybody’s book come under the categories of duress or torture in order to gain evidence. The United States has a very serious charge against it; indeed I was one of many colleagues—I think the right hon. and learned Member for Sleaford and North Hykeham may have been another—who was amicus curiae in the case on Guantanamo Bay in the United States on precisely this issue. It does concern me, so I shall listen very carefully to what the Minister has to say. There are countries to which it is obviously applicable and there are others to which it is less obviously applicable, but under either circumstance, courts in this country should not be making legal orders on the basis of evidence that is inadmissible in this country because it is obtained from unsavoury practices that would be illegal within this country. That is the assurance, in very clear terms, that I want the Minister to give me this morning.

Dominic Grieve (Conservative, Beaconsfield)

I am sympathetic to the point raised by the hon. Member for Somerton and Frome, and indeed my concerns about this go further. We are setting up a system that requires notification of conviction for foreign offences and whilst in many cases this may present no problems in the general acceptance that the individual has been justly convicted in a foreign country of a terrorist offence that requires notification, I can readily envisage that perhaps, unlike sexual offences, there may be instances where individuals challenge the basis on which they were convicted and whether in fact their actions constituted a terrorism offence. This may well turn out to be a fertile field for judicial review applications.

Can one be required to notify, or to go through a notification procedure which, as the Government have acknowledged—because they cannot make it retrospective—has an element of a penal sanction, and can that be done in circumstances where a court in this country cannot be satisfied that the offence was in fact committed? Clearly, taking the hon. Gentleman’s example, if there is evidence that the conviction was obtained on the basis of evidence obtained under torture, for reasons that we have already rehearsed very well in this country, we know that the courts will not be very sympathetic to that. I think it could even go wider and I wonder what view the Government have as to the chances of this being a contentious area, because I think it may well turn out to be so.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. and learned Friend is obviously right when he talks about the risk of judicial review. For example, does he not accept that where a person has been brought, say to the United States, through the process of extraordinary rendition, that person might well challenge notification in this country on the grounds that extraordinary rendition is so gross an infringement of human rights as to constitute an abuse and that no trial should be allowed to proceed on the basis of such extraordinary rendition.

Dominic Grieve (Conservative, Beaconsfield)

My right hon. and learned Friend makes a good point. If in future individuals are released from Guantanamo Bay and end up back in this country with a conviction before a military commission at Guantanamo Bay and somebody says that they have to register a notification in this country, I should have thought that would be challenged pretty readily and that a challenge may well succeed, not necessarily on the basis that the evidence may have been obtained under torture but on the basis of the lack of proper due process in the trial.

This is a matter of hypothetical speculation at the moment but it is not difficult to see this happening, particularly, as the Minister knows, when we debated the last Terrorism Act there was considerable anxiety as to what constituted the definition of terrorism. For those reasons, I do not think this will be an area without controversy.

For the present, I would be interested to hear the Minister’s views and comments. If it were to be established that the person’s conviction had been obtained in the circumstances in amendment No. 48, I should have thought that a challenge to the notification order is likely to be successful. For the reasons that I have given, I can also think of other circumstances in which challenge to the notification process might be successful. I wondered what the Government thought about it.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I support what has been said by my hon. and learned Friend the Member for Beaconsfield and by the hon. Member for Somerton and Frome. It is clear that the notification procedure brings with it some penal sanctions. It may not strictly be a penalty but it imposes restrictions and obligations that are analogous to a penal sanction. However, one has to ask whether, as a matter of policy, one wants to use it when the underlying criminal conviction was obtained in circumstances that would not justify conviction within the courts of England, Wales or Scotland.

I have the gravest anxieties about some of the processes currently sanctioned by the American Administration. Extraordinary rendition is wholly and utterly wrong. Guantanamo Bay is a stain on the reputation of a common law country. Water-boarding is so disgraceful that I find it difficult to understand how the United States President can think it is in any way proper to give it presidential validation. This is a good opportunity for the British Government to say, “Up with this we will not put.” I would not mind some specific statement to the effect that so long as a United States Government use these practices in respect of any conviction that is procured in any of those circumstances we will not seek for one moment to obtain a notification order.

Tony McNulty (Labour, Harrow East)

I fully understand the thrust of this amendment and support the principle of it.

With respect, I do not need lectures from the right hon. and learned Member for Sleaford and North Hykeham about our objection to Guantanamo, torture or any such matters. The Government have been there right from the off and we do not need to say now or at any other stage, “Up with this we will not put,” as he so quaintly puts it, because we never have put up with it and have made our position abundantly clear. I regard his comments about what the President says as ranking with one of the latter Presidents who described tomato ketchup as a vegetable, and will treat it with the same disdain. But I do not need lectures, with the greatest respect, not given some of the activities of the last Conservative Government in this regard, which we will go into at another time, as I do not want to provoke anyone in that matter.

There are practical and serious difficulties with the broad sweep of what the right hon. and learned Gentleman is saying. The amendment could be interpreted as saying that anything offered in the context of a conviction abroad that did not comply with the admissibility criteria for evidence in this country could not be accepted. I understand that that is not the way that the hon. Member for Somerton and Frome sought to draw it, but that could be inferred.

As the hon. and learned Member for Beaconsfield suggested, we could effectively have mini reruns of foreign trials in our common law framework to see whether we should uphold the conviction. I know that that is not the intention of the amendment, but it could be a consequence in practice. However, I accept the broad thrust behind the amendment of not condoning torture or information coming from torture.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Does the Minister understand that the judicial review process, to which my hon. and learned Friend the Member for Beaconsfield referred, would inevitably bring the court to which the application is made to consider the underlying soundness of the conviction? The kind of points that have been made by the hon. Member for Somerton and Frome, my hon. and learned Friend the Member for Beaconsfield and myself will come into play at that point. The court to which an application for judicial review is made is bound to consider the underlying fairness of the conviction on which reliance is placed.

Tony McNulty (Labour, Harrow East)

I thank the right hon. and learned Gentleman for the echo. That is entirely the point that I just made. I am sympathetic to what the hon. Member for Somerton and Frome is seeking to achieve, but I do not think that it is in line with the practicalities of his amendment. The practicalities go beyond the thrust and import of his arguments to the possibility of our courts under judicial review assessing the viability of the evidence per se and whether it is admissible.

I am absolutely behind the broad principle, notwithstanding the difficulties that it would cause. The internationalisation dimension of the notification regime does do that, but I am not convinced that the form in which he offers it is quite the way to go forward. I ask him to withdraw the amendment and I will give the matter serious consideration to see if we can include it in the Bill because I have not one dispute with the overall thrust of the amendment.

My last point is that twice people have suggested that notification is a penal sanction. It most profoundly is not. I offered up the amendments that made this a fairer regime because any requirement or obligation under law should be fair and proportionate. It was not a recognition that notification is somehow a penal sanction. I say sincerely that it profoundly is not. I have let two or three people get away with saying that the Government were seeking a penal sanction with notification. That is most profoundly not the case.

I ask the hon. Gentleman to withdraw the amendment and it will be given serious consideration before Report stage.

David Heath (Liberal Democrat, Somerton and Frome)

I am not sure whether to thank the Minister for that last point, but I thank him for his helpful comments. I do not entirely accept his interpretation of the amendment because I do not think that it throws into question the admissibility of any evidence, which he has quite clearly defined as being obtained under duress.

Tony McNulty (Labour, Harrow East)

Or other means.

David Heath (Liberal Democrat, Somerton and Frome)

Or other means that would render it inadmissible. One can always extend the excerpt that one uses for elucidation, but I think that the amendment is quite narrowly drawn. I am grateful to the Minister for his assurance that he will look at this matter again.

I confess my ignorance on the matter raised by the hon. and learned Member for Beaconsfield, the right hon. and learned Member for Sleaford and North Hykeham and the Minister about whether the notification order would be subject to judicial review or whether it is an action by the court as framed in the context of the Bill. I am not clear on that, but perhaps it could be elucidated.

Dominic Grieve (Conservative, Beaconsfield)

It would be subject to review for two reasons. First, it goes with the conviction of the individual in this country and, secondly, in respect of a foreign offence, as I understand it,

“the defendant serves on the applicant, not later than rules of court may provide, a notice...stating that, on the facts as alleged with respect to the act concerned, the condition is not in the defendant’s opinion met”.

Although he is able to challenge it, he is simply served with an order that he must provide notification. That is a ministerial action and, in those circumstances, it must be possible to review it.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is probably right in this case, but I am less convinced about an ab initio notification as a result of the offence being tried under a British jurisdiction.

Dominic Grieve (Conservative, Beaconsfield)

In the case of a sanction being imposed following a conviction in this country, it is more difficult to see what there is to review. There might be reviews further down the road, on the basis that it is no longer proportionate to rights contained in the European convention on human rights, but that is the only thing that I can think of. I can think of 101 reasons why somebody convicted in a foreign court might seek to have that position reviewed.

David Heath (Liberal Democrat, Somerton and Frome)

I am now better educated and understand the parameters that are available to the person on whom the notification order is placed.

If the interpretation made by the hon. and learned Member for Beaconsfield is correct—I have no reason to suppose that it is not—it is almost inevitable that these matters will be challenged if there is the slightest doubt about the appropriateness of the original sentence or about the proceedings in which the original sentence was given under a foreign jurisdiction. That being the case, any declaratory statement that could be made in the Bill—the Minister suggested he would consider that—would be helpful, as we always say, for the avoidance of doubt. I am clear about the Minister’s intention in this respect and I think that he shares my view. That being so, I beg to ask leave to withdraw the amendment.

Schedule 5

Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 158, in page 77, line 30, after ‘order’, insert ‘in respect of a person’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following: Government amendment No. 159.

Amendment No. 211, in page 77, line 33, leave out sub-paragraph (3) and insert—

‘(3) The second condition is that the court making the order is satisfied to the criminal standard that, since being dealt with for the offence by virtue of which those requirements apply, the person has acted in a way that gives reasonable cause to believe it is necessary to make a foreign travel restriction order to prevent the person from taking part in terrorism activity outside the United Kingdom.’.

Government amendment No. 160.

Amendment No. 212, in page 77, line 37, at end insert—

‘(3A) The third condition is that the making of a foreign travel restriction order will not breach any right of free movement within the Treaty on European Union or Directive 2004/38/EC of the European Union or subsequent instrument.’.

Government amendments Nos. 161 to 163

Tony McNulty (Labour, Harrow East)

We will return to some important non-Government amendments in this group. The Government amendments are, again, essentially technical and tidy things up.

Government amendments Nos. 158, 159, 161 and 162 remove references to “defendant” and instead refer to “person”. That is to improve the drafting style, apparently, and bring paragraph 2 in line with the rest of the schedule, which refers to “person” rather than “defendant”.

Government amendment No. 163 removes sub-paragraph (6) from the schedule as it is no longer necessary if references to the “defendant” are removed through the other amendments.

Government amendment No. 160 removes the “reasonable cause to believe” test from the conditions for making a foreign travel order, bringing the provisions into line with the tests for making foreign travel orders under the Sexual Offences Act 2003 and other similar civil orders.

Amendment No. 211 would include in the Bill the requirement that the court applies the criminal standard—beyond reasonable doubt—when considering the reprehensible behaviour. We do not accept the amendment. There is no such express provision in the foreign travel order measures in the Sexual Offences Act, or in relation to the successful football banning orders or other civil orders, such as—notwithstanding the recent interest from their lordships—violent offender orders in the Criminal Justice and Immigration Act 2008. It states “Act” in my notes rather presumptively—I do not think it is an Act yet, is it?

Vernon Coaker (Labour, Gedling)

Yes. It happened last week.

Tony McNulty (Labour, Harrow East)

Okay. It is therefore unnecessary to set the standard to be applied by the court in the Bill. I ask that the amendment be withdrawn or resisted.

Dominic Grieve (Conservative, Beaconsfield)

I have not moved it.

Tony McNulty (Labour, Harrow East)

Whenever it is moved, however eloquently it is done, I shall ask for it to be resisted or withdrawn. Amendment No. 212, which we will come on to, would ensure that foreign travel restrictions do not breach any right of free movement within the EU as provided for in the directive. Article 27(1) of the directive provides that member states may restrict the freedom of movement of Union citizens and their family members on the grounds of public policy or public security. Article 27(2) provides that such a measure must be proportionately based exclusively on the personal conduct of the individual concerned, which clearly, these matters are. As and when that is moved, I shall ask again for withdrawal or resistance. Wrapped around those amendments and at the core of this are the Government amendments, which, as I have suggested, are merely tidying up or technical amendments. I commend them, but not amendment Nos. 211 or 212—however eloquently they are about to be moved—to the House.

Dominic Grieve (Conservative, Beaconsfield)

I shall not comment further on the Government amendments. I accept that they are of a fairly minor nature. Amendment Nos. 211 and 212, which the Minister has dismissed before I have had chance to speak to them, were intended to be probing amendments. It is quite important to go back to basics. We have now become quite ready to prohibit people from travelling abroad. We have been doing so for some time and the Minister has rightly highlighted football banning orders and sexual offender orders. Such a measure is, of course, a very serious restriction on the liberty of the subject because historically it was essentially prohibited in the clauses of Magna Carta.

There should be no right to prevent an individual who is in this country and who is not otherwise subject to detention to be brought to trial going to a foreign country. That said, I will not quibble about there being circumstances in which one should be entitled to do so. We started doing so in the case of football banning orders where there was a clear correlation between the intention of the visit and causing mayhem at a foreign football match. We then moved it on towards sex offenders, again, because of the point about propensity and the clear existence of sexual tourism. In this case, it is clear that the Government will have to be careful about how they exercise this particular power. Will it prevent people from travelling outside the United Kingdom generally or will it prohibit people from travelling outside the United Kingdom to a specified destination because of reasonable grounds that they will engage in terrorism when they get there?

I would not want the clause to go through on the nod because in terms of restrictions on the liberty of the subject it is—I think we sometimes abuse this word—a draconian sanction. Generally speaking, we have no business prohibiting people from travelling to a foreign country just because the state takes the view that they are dodgy. That is really what we are dealing with here. I simply say to the Minister that the two amendments were designed to probe this issue and to make sure that we do not create a power that could be abused.

The issue that particularly interests me is that it is clear in paragraph 1 that specified countries can be named as being places on which a prohibition may be attached. The Minister will be perfectly aware that the difficulty with that is if one prohibits someone from travelling to Pakistan, there is nothing to stop them travelling to France and hopping on the first plane to Pakistan, if that is what they are minded to do. We will not be able to do much if they do not come back to this country, unless we are able to prove on their return, which may be extremely difficult, that that is where they went. Blanket prohibitions on leaving the country could, I envisage, turn out to be a fertile field for judicial activism and there could be a lot of litigation. I simply wanted to flag up to the Minister that I am not against the principle behind the measure, but I hope that it is applied sparingly. If it is not, we could end up with problems.

Edward O'Hara (Labour, Knowsley South)

Order. May I clarify at this point that the Minister and the hon. and learned Gentleman have been speaking to amendments to amendment No. 212. They have not been moved and may not be moved in the light of this debate.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful, Mr. O’Hara—that may well be the case.

I simply wanted to ask, using the context of the amendment, but perhaps pre-empting the need for a stand part debate, how and on what basis the provisions will apply to the bearer of a passport that is not a British passport? On what basis would a person who is no longer subject to detention or custody in this country be restricted from travelling to their country of origin using the passport of their country of origin? On what basis are the British Government to be able, as they apparently will be under the schedule, to confiscate all passports, which implies passports issued by a foreign Government, which are not the property either of the individual or the British Government?

Tony McNulty (Labour, Harrow East)

I am sorry for my pre-emptive behaviour earlier—

Edward O'Hara (Labour, Knowsley South)

Order. My clarification was to indicate that it was not pre-emptive.

Crispin Blunt (Conservative, Reigate)

It was provocative.

Tony McNulty (Labour, Harrow East)

I do not apologise for provoking a Conservative, for God’s sake—that is what I was put on the Earth for.

I agree with the broad sweep of the comments made by the hon. and learned Member for Beaconsfield: the power is a strong one and should be used sparingly. For that reason, there are strong appeal and variation provisions in the schedule, unlike some of the other measures that we have discussed, such as those on notification and other matters. The measure, however sparingly it is used, will be a useful device.

The point about not going to a designated country as outlined in schedule 1 is picked up in paragraph 6(1)(b) of schedule 5, which talks about going to another country via a third country.

On the broad point made by the hon. Member for Somerton and Frome, the Government can confiscate a foreign passport, but there is nothing to stop a person going to the embassy to get another. However, one would hope, notwithstanding the collective wit of the authorities, that that person would go on to a watch list and, the next time they present their passport when they come back into the country, they will not be permitted to do so.

I would not say that the power is draconian, but it is strong, and notwithstanding recent experience, it should be relatively sparingly used. None the less, we believe that it will add to the greater arsenal, for want of a better phrase, of provisions available to us in the fight against terrorism. As I have said on a range of matters, I do not afford panacea status to any of the provisions of themselves but, taken as a whole, they will be useful. I do not deny, as both the hon. and learned Gentleman and the hon. Gentleman said, that it is worth exploring the substantial provisions in the schedule because they are important and serious. However, as the hon. Gentleman generously said, the measure could be of some help in our struggle, if it is used only sparingly. However, if one reads the whole schedule, including the technical amendments that I hope to make, one will find the appropriate checks and balances for what is, after all, a serious power that will be, if used sparingly, used seriously. It will have a serious impact, which is the whole purpose of the measure.

Clause 57

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment No. 213, in clause 57, page 40, line 26, at end insert—

‘(c) the need to ensure that the manner in which the proceedings are conducted is fair to every party to the proceedings.’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following amendments: No. 207, in clause 57, page 40, line 29, leave out paragraph (b).

No. 214, in clause 57, page 40, line 32, leave out subsection (4).

No. 208, in clause 57, page 40, line 33, leave out paragraph (a).

No. 216, in clause 58, page 41, line 23, after ‘interest’, insert

‘and that the withholding of the material would not cause injustice to a party to the proceeding,’.

No. 225, in clause 58, page 41, line 25, leave out ‘consider requiring’ and insert ‘require’.

No. 217, in clause 58, page 41, line 30, after ‘interest’, insert

‘and is sufficient to ensure that the conduct of the proceedings will be fair to all parties to those proceedings.’.

No. 226, in clause 58, page 41, line 30, at end insert—

‘(f) material which supports the case of a party to the proceedings may not be withheld from a party to the proceedings or from that party’s legal representative and material which adversely affects the Treasury’s case may not be with held from any party to the proceedings or their legal representative.’.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

This is rather an important clause and rather an important set of amendments. We are dealing here with the powers given in the Bill for the making of rules relating to the asset-freezing procedures. Those procedures, which are set out in clause 56, are fairly far reaching.

My reading of clause 57 makes me extremely depressed. All the provisions are designed to benefit the Treasury, and none is designed to benefit the person whose assets may well be frozen. In the various amendments that I have tabled, I have tried to ensure that the maker of the rules is obliged to consider a number of criteria that are designed to benefit the individual, not the state.

For example, the lead amendment, No. 213, requires the maker of the rules to have regard to the need

“to ensure that that manner in which the proceedings are conducted is fair to every party to the proceedings.”

One would have thought that one would not have to say that, but the way in which the law is being construed and implemented means that one does.

Nothing in the Bill requires the maker of the rules to have any regard to the person whose property is about to be taken. The Minister might say that that is all inherent in the convention on human rights, and some parts may be, but I want us as parliamentarians to enact legislation in such a way that people cannot criticise us for not addressing such matters. It is quite plain that we should require the maker of the rules to have regard to fairness.

I am also concerned by subsection (4), with which amendment No. 214 deals. As the Committee will appreciate, subsection (4) enables the maker of the rules to make provision for proceedings to be heard in the absence of the person concerned or their legal representative. It also enables the rules to provide for the proceedings to take place without full particulars of the relevant reasons being given to the parties, and it enables the court to proceed on the basis of a summary of evidence rather than full evidence. That is extraordinarily one-sided, and I have tabled the amendments to try to ensure that the maker of the rules is obliged to consider issues of fairness.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The right hon. and learned Gentleman will recall that during our last sitting, we discussed a possible challenge by an innocent third party whose property had been confiscated. Subsection (4)(b), to which he referred, states that proceedings can be conducted

“in the absence of any person, including a party to the proceedings”.

Where does that leave the innocent third party if that property belongs to him?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

That is a fair point which I have not yet addressed. Although the debate last week related to forfeiture, whereas this debate relates to freezing, it is perfectly true that the same issue could arise. I take the hon. Gentleman’s point entirely. I can conceive of circumstances in which the imaginary Mr. McNulty will not know that his property, which is in the hands of the person who is the subject of the freezing order, is likely to be frozen. I do not have an answer. The hon. Gentleman is right to identify and flag up the issue—it must be addressed.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I was not quizzing the right hon. and learned Gentleman, I was bouncing a question in the hope that we will have a response later in the debate.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am glad about that, but it is a serious point and I am glad that the hon. Gentleman has raised it. It needs to be addressed, at least, that is my immediate feeling about it.

Amendments Nos. 216, 225 and 226 are about disclosure rather than the general provisions. I can understand the grouping because clause 58 deals with rules about disclosure. My concern is that there is no provision in the Bill that causes the maker of the rules to consider the impact on the person whose property might be frozen of withholding classes or pieces of information. The maker of the rules should have to consider those matters, so that a court is not in a position to make orders that prohibit the disclosure of information where the prohibition on the disclosure would be unfair.

That is the same category of argument that I have been raising. Parliament has a duty to take account of the interests of those people—however unworthy they may be—and ensure that no unfairness is done on the face of the Bill. I hope that the Minister will give serious consideration to what further language should be used to ensure, as best one can, that the interests of the individual whose property may be the subject of the freezing order are properly safeguarded, both as to the hearing and the disclosure of the material.

Dominic Grieve (Conservative, Beaconsfield)

I join my right hon. and learned Friend in having the gravest reservations about the wording of clause 57, in terms of setting down general provisions about rules of court. I also share his anxiety about disclosure, although on my reading, the rules on disclosure closely follow those on the existing system for control orders in providing protection for the use of intercept and other intelligence evidence. That raises anxieties, but they do not seem to justify the extraordinary nature of the rules in clause 57.

The Committee will see that I have tabled two amendments to clause 57. The first would remove subsection (3)(b), which says that rules of court may make provision—

“enabling or requiring the proceedings to be determined without a hearing”.

The second one would leave out subsection (4)(a), which allows the rules of court to make provision—

“enabling the proceedings to take place without full particulars of the reasons for the decisions to which the proceedings relate being given to a party to the proceedings (or to any legal representative of that party);”

Those provisions cause me considerable concern about how the proceedings can be fair. If the matter of amendment No. 208 can be construed as being in the context of intelligence evidence, enabling or requiring proceedings to be determined without a hearing is something that I find totally inexplicable. On the face of it, I cannot see how any rules of court which make such a provision could pass the first and most basic test of fairness that one may require. I would be particularly interested, therefore, in the Government’s justification of it.

What is needed now is a general debate in which I expect the Minister to set out in considerable detail how he expects this system to work in practice. I also going to require him to justify each and every one of the provisions which depart from the normal standards that one would expect to find in civil proceedings of this type.

I want to make it clear that I am not unsupportive of the need to have a special procedure. It has been recognised that we want to try to use intercept evidence, and that in itself is a novelty that is going to present considerable details to the Minister and to the Government. But the process has to be fair—all the more so because we are not dealing with controlling individuals, which might be argued to be an absolute necessity in the context of terrorism; we are arguing about property, and I am going to need a lot of persuasion that each and every one of these provisions is necessary. However, I would say to the Minister that I am open to persuasion.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I rise briefly to support the arguments made in support of the amendments, and in particular to speak to amendment No. 213, which stands in the name of the right hon. and learned Member for Sleaford and North Hykeham. It is obviously a prerequisite that there should be fairness in the system. Otherwise, the whole system will break down, whether as the result of legal challenge or in another way.

We must read clause 57 alongside clause 56. The Treasury is to determine whether an application will be made or not. Under clause 57(3)(a), rules of court may make provision

“about the mode of proof and about evidence in the proceedings”.

That fills me with great concern. I hope the Minister will tell us more about that provision, whether it is about the standard of proof or its precise meaning. I do not quite understand the wording. Looking at subsection (3)(b), to echo what the hon. and learned Member for Beaconsfield has said, there is something Kafkaesque about making rules of court to enable no hearing to take place. In fact, it borders on the ridiculous that this could be an administrative decision, by the Treasury, to freeze these assets without notice to anyone, without inviting anybody’s opinion and without allowing for the possibility of an innocent third party who might or might not be the owner of the assets that are being frozen.

Subsection (4)(b) refers to,

“enabling the court to conduct proceedings in the absence of any person, including a party to the proceedings”

I stress that, like other hon. Members, I have no desire to prevent a proper system from being introduced. Clearly, that is an important tool in the armoury, as the Minister said earlier. However, we must ensure fair play; otherwise, this part of the Bill will soon unravel.

I am very concerned about the idea that proceedings will take place in the absence of a party and the legal representative of that party. Let us imagine that the party is a trustee of some fund or that moneys have been entrusted to him or her in an innocent way. It seems that those moneys could be taken away without any challenge from a third party. To be fair to the Government, in another clause, regarding confiscation, there is provision for a party legitimately claiming to be the owner of property to be heard. The Bill may contain a similar provision covering asset-freezing proceedings, but I cannot find it. In the circumstances that I have described, is there any way in which a person with a legitimate claim to the moneys could be heard in the process, or will that voice be shut out completely, just as, unfortunately, under subsection (4)(b) will be the person who is the subject of the proceedings? Those are important points and I am sure that the Minister will have answers for every one of them. The position is not obvious from the Bill and we need answers.

David Heath (Liberal Democrat, Somerton and Frome)

I do not want to extend my observations into this afternoon’s sitting, so I shall be exceedingly brief. One does not have to be against the principle of this aspect of the Bill to raise pertinent questions about how it will withstand any challenge, which we are familiar with in the context of control orders and which we know lies further down the road. If the provision is not sufficient to meet the terms of any challenge under human rights or any other legislation, it will not do the job that the Government want it to do.

We need to be a little more circumspect than usual, not only because of the experience of the past few years and the difficulties thrown up by court proceedings in respect of control orders, but because we are talking about what is essentially an executive action on the part of the Treasury. I understand why the Treasury is involved. Of course it is: it is the Government Department in this country that deals with financial matters; it is Her Majesty’s Treasury. However, the Treasury is not the Ministry of Justice, or even the Home Office, so it is important that anything done by the Treasury in this respect is clearly seen as being in accordance with the principles of justice and fair play to the individual as well as to the state. That is why some of the concerns expressed have been put before the Committee and why the Minister must take exceptional care to ensure that the clause is in good order before the Bill proceeds to later stages.

Tony McNulty (Labour, Harrow East)

I have heard what all the speakers have said and I understand the import of their remarks. As the hon. and learned Member for Beaconsfield said, the provision is not new. It reflects as closely as we can the special advocate system that prevails in the Special Immigration Appeals Commission. For a lot of people, that system is not entirely satisfactory, and I have met special advocates to discuss at some length both SIAC and other matters. In the Proscribed Organisations Appeal Commission, we have the same system. It is not Kafkaesque. If we are considering how to, at least in part, afford people a degree of fairness from what starts as a simple Order in Council and we can go thus far and no further, given some of the material before the court, it is perfectly appropriate to put rules of court around those hearings, because they do not exist otherwise. As with SIAC and POAC, it is more than appropriate for cases to be dealt with in this fashion.

Edward O'Hara (Labour, Knowsley South)

I remind the Committee that with this we are discussing the following amendments:

No. 207, in clause 57, page 40, line 29, leave out paragraph (b).

No. 214, in clause 57, page 40, line 32, leave out subsection (4).

No. 208, in clause 57, page 40, line 33, leave out paragraph (a).

No. 216, in clause 58, page 41, line 23, after ‘interest’, insert

‘and that the withholding of the material would not cause injustice to a party to the proceeding,’.

No. 225, in clause 58, page 41, line 25, leave out ‘consider requiring’ and insert ‘require’.

No. 217, in clause 58, page 41, line 30, after ‘interest’, insert

‘and is sufficient to ensure that the conduct of the proceedings will be fair to all parties to those proceedings.’.

No. 226, in clause 58, page 41, line 30, at end insert—

‘(f) material which supports the case of a party to the proceedings may not be withheld from a party to the proceedings or from that party’s legal represenative and material which adversely affects the Treasury’s case may not be with held from any party to the proceedings or their legal representative.’.

Tony McNulty (Labour, Harrow East)

I was going to say, but you spotted it, Mr. O’Hara, that I would seek to resist the amendment—and then sit down. I might have got away with that another time.

David Heath (Liberal Democrat, Somerton and Frome)

Good afternoon.

Tony McNulty (Labour, Harrow East)

Good afternoon, everybody. Good afternoon, Mr. O’Hara.

I rise to answer the debate on amendment No. 213. As I said earlier, special advocate procedures are available in other contexts, notably the Special Immigration Appeals Commission and the Proscribed Organisations Appeal Commission. The general objective is to keep the special advocate provisions in the Bill as close to those existing procedures as possible. The clause reflects corresponding powers in the SIAC and POAC provisions—for example, paragraph 5(c) to schedule 3 to the Terrorism Act 2000.

As I indicated, it might be useful if we spoke in more general terms about asset freezing as it is now. In that context, unless the Committee needs greater clarification, I am happy to forgo my contribution to a clause stand part debate.

The Committee will know that asset freezing aims to help prevent terrorist acts by preventing funds, economic resources or financial services from being used or diverted for terrorist purposes. The clause reflects the fact that the United Kingdom does that in accordance with United Nations obligations. The police and security services have noted the positive disruptive impact that asset freezing can have, and have made it clear that the regime is essential for counter-terrorism operations.

In a document published in February 2007 by the Home Office, the Treasury, the Serious Organised Crime Agency and the Foreign and Commonwealth Office, entitled “The financial challenge to crime and terrorism”, we noted that the Treasury had agreed on the advice of the law enforcement agencies to use closed-source evidence in asset freezing cases if there were strong operational reasons to impose a freeze but insufficient open-source evidence was available. The document stated:

“In order to ensure the fairness of any court challenge to the imposition of a freeze, the Government will introduce a procedure for the appointment of special advocates to represent the interests of the applicant in respect of the closed evidence”.

It should be noted that the Bill’s provisions are not about the Treasury’s decision to freeze a person’s assets; they deal with subsequent challenges by the designated person or another affected person to that decision or a related licensing decision.

With regard to some of the concerns expressed this morning, these are enabling powers. As such, they should be drafted broadly, with the rules of court giving the details. However, I assure the Committee that the provision has been drafted to ensure that all cases are dealt with in a consistent and fair manner, with regard for the rights of the appellant and the Government’s need to withhold material in the interests of national security.

The amendments seek to make provision for a level of detail that is not appropriate to be included in the Bill. Many of the concerns are about the detailed operation of the system. In general, I support the underlying concerns for protection and fairness for all parties. Those will be addressed in the rules of court, which will be put to Parliament for approval. I hope that the Committee understands that the vagaries of time do not allow me to say absolutely, but as I have said about assorted codes of practice and other secondary matters that follow on from the Bill, I hope to make the draft rules of court available before Report.

It may be stating the obvious, but I want to clarify the meaning of certain provisions. First, the words “in the absence of” a party or a legal representative of that party in clause 57(4)(b) exclude the designated person and his open advisers. However, they do not exclude the special advocate, who is appointed to represent the interests of an excluded party in exactly those circumstances. Earlier references to the designated person or his agent—in this case, the special advocate—not being able to be at the closed session are not accurate. They were not a part of the process as I understand it. The interests of the designated party were absolutely excluded from the proceedings.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am sure that I will be shot down in flames and corrected, but my reading of clause 57(4)(b) is thus:

“enabling the court to conduct proceedings in the absence of any person, including a party to the proceedings (or any legal representative of that party);”

Does that not mean that the lawyer for the party would be excluded from that hearing?

Tony McNulty (Labour, Harrow East)

But not the special advocate—that is the whole point. The whole purpose of the special advocate provision is to have the advocate in the room during those nominally ex parte proceedings, given that the legal representative and the designated person are excluded. That is the whole purpose of the special advocate process.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I do not like to disagree with the Minister but in

“enabling the court to conduct proceedings in the absence of any person,”

“any person” actually includes the special advocate, unless that phrase is so constructed that it does not include the special advocate. As drafted at the moment, the rules could exclude the presence of the special advocate.

Tony McNulty (Labour, Harrow East)

No. Subsection (5)(b) clearly says:

“references to a party’s legal representative do not include a person appointed as a special advocate.”

With respect, in relation to the provision that the right hon. and learned Gentleman just read,

“enabling the court to conduct proceedings in the absence of any person, including a party to the proceedings (or any legal representative of that party)”,

subsection (5)(b) quite deliberately puts a special advocate outside the definition of the individual’s legal representative.

Dominic Grieve (Conservative, Beaconsfield)

I hope that I can help my right hon. and learned Friend the Member for Sleaford and North Hykeham. I disagree with the Minister: I appreciate his point that a special advocate is not the legal representative of a party, and that the advocate’s appointment is independent of the court. However, my reading of subsection (4)(b) is that it enables the court to conduct the proceedings in the absence of any person. That, on the face of it—although it might be a bit far-fetched—would appear to allow the court to conduct its proceedings with nobody present at all.

David Heath (Liberal Democrat, Somerton and Frome)

No, that is not what it says.

Dominic Grieve (Conservative, Beaconsfield)

It says that

“in the absence of any person, including a party to the proceedings (or any legal representative of that party);”

I read that as going further than just excluding parties to the proceedings.

Tony McNulty (Labour, Harrow East)

No, because in part, this has to be read with the rules of court, which subsection (6) picks up.

David Heath (Liberal Democrat, Somerton and Frome)

Far be it from me to come to the assistance of the Minister but I read it differently, because I am reading in the context of the statement:

“Rules of court may make provision”.

That is the crucial part. It is a permissive power, but to exclude any person. That does not necessarily mean that it excludes all persons.

Tony McNulty (Labour, Harrow East)

Exactly so, which is the interplay with subsection (6), which sweeps all that up.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

We do not know what the rules will do. That being so, we have to interpret the Bill as it is currently before us. Subsection (4)(b) refers to

“enabling the court to conduct proceedings in the absence of any person”—

pausing there, “any person” includes a special representative—

“including a party to the proceedings (or any legal representative of that party)”,

that is, the affected person. But nothing in the Bill provides that the special advocate is not caught by the phrase “any person”.

Tony McNulty (Labour, Harrow East)

Well, the very next paragraph does precisely that. Subsection (4)(c) says that the rules of court may make provision

“about the functions of a person appointed as a special advocate”

That interlocks with subsection (6). It is necessary to put them all together. As I said at the beginning, I shall make it very clear that the draft rules should be available to the House before Report. The right hon. and learned Member for Sleaford and North Hykeham falls into the trap of isolating a clause without looking at all the interlocking parts both in and across clauses, which is easily done but should not really be done by such a learned and experienced gentleman.

Dominic Grieve (Conservative, Beaconsfield)

This may be an exercise in semantics and I do not want to get bogged down in a debate that might be somewhat academic. However, on this subject I must say that I happen to agree with my right hon. and learned Friend the Member for Sleaford and North Hykeham.

Granted everything that the Minister has said about special advocates and the fact that they are not one of the parties to the proceedings, the power to exclude any person, as I read it in subsection (4)(b), appears to give the tribunal a power—which might be derived from the previous rules about the Special Immigration Appeals Commission—to conduct proceedings without anybody present at all. The fact that there may be other rules,

“about the functions of a person appointed as a special advocate”,

or all the other matters in that subsection does not prevent the ability to remove everybody from the court proceedings entirely. [Interruption.] The hon. Member for Somerton and Frome says from a sedentary position that that is not right. If he can show me something within the text that persuades me of that, I will happily give way to him.

David Heath (Liberal Democrat, Somerton and Frome)

You cannot; you are intervening at the moment.

Dominic Grieve (Conservative, Beaconsfield)

Quite right, and I have intervened long enough.

Edward O'Hara (Labour, Knowsley South)

Order. If there is going to be a dialogue of interventions, they should come from a standing position.

David Heath (Liberal Democrat, Somerton and Frome)

I am sorry, Mr. O’Hara; I am now standing and I can intervene on the Minister, because he is the one who is speaking. I could not intervene before, although I was invited to do so.

We are making a mountain out of a molehill here. Yes, the rules of court could make provision in exactly the way that the hon. and learned Member for Beaconsfield and the right hon. and learned Member for Sleaford and North Hykeham say. It is open to the interpretation that “any” could mean “all” in the context of the rules of the court. Subsequent clauses make it clear that that is not the intention; the Minister is right in saying that.

However, I do not think that one can read “any” as necessarily meaning “all” in this context. It is a permissive power within the rules of court, and it would be for the rules of court, not the tribunal, to determine that. The Minister could usefully avoid the ambiguity in a later draft, but I do not think that it necessarily means what the hon. and learned Member for Beaconsfield says that it means.

Tony McNulty (Labour, Harrow East)

I appreciate that this discussion is not entirely about semantics, given that we do not have the rules of court in front of us. However, I give the assurance that the interpretation as made will not happen. I grant that the interpretation was not made wilfully; although some of us struggle with the legalese, I take that view rather than the stricter version. It will not happen that the party will be denied a special advocate and this measure is drafted so that the special advocate is in the room rather than otherwise; that is the whole purpose of having the special advocate there.

However, I accept that that is difficult to ascertain on trust from me, without our having the rules of court in front of us. I therefore assure the Committee that I will try to ensure that that happens before Report. Anyway, there will be a subsequent parliamentary procedure on the rules of court; if people remain dissatisfied, they can react accordingly.

Secondly, regarding the words in subsection (4)(a),

“without full particulars of the reasons for the decisions to which the proceedings relate being given to a party”,

they mean that the party and their own advisers will not be informed of the reasons, but they do not mean that the special advocate appointed to represent the party’s interests will not be informed of them. On the contrary, the special advocate will be informed of those reasons and will have an opportunity to make representation to the judge in the interest of the excluded party.

The Treasury notifies individuals of the reasons behind their designation, as far as possible. Where closed-source material has been used to inform a designation decision, it might not be in the public interest to disclose that. However, to the extent possible, given the requirements of national security—as in other such constructions—a gist will be provided.

The point of the special advocate regime, however, is to create a structure in which the court, in hearing a challenge, can consider material that cannot be openly disclosed, and can do so in a way that preserves to as great a degree as possible the fairness to the designated person. However, it necessarily involves withholding certain material from that person, for reasons of national security; if that were not so, there would be no need for a special advocate.

The structure of the scheme and the provisions are very closely modelled on schedule 3 to the Prevention of Terrorism Act 2005, which set up the special advocate regime, as the hon. Member for Somerton and Frome suggested, for control orders. That regime was recently considered by the House of Lords Judicial Committee in the case of MB. Subject to one amendment, which is reflected in clause 58(6) of the Bill, the structure was held to be fully compliant with article 6 of the European convention on human rights. In the Bill, we have sought to replicate, virtually identically, the provisions in the Prevention of Terrorism Act 2005. One addition to the Bill is clause 58(6), which expressly recognises the relevance of the right to a fair hearing under article 6 of the European convention on human rights.

As hon. Members will be aware, there is no special advocate regime for asset freezing—otherwise we would not have the present clauses. That means that it is not possible to rely on evidence that cannot be disclosed openly, unless the judge uses his inherent discretion to appoint a special advocate on an ad hoc basis. We seek merely to formalise that arrangement.

In the only case of this nature to have come to court so far—A, K, M, Q and G v. HM Treasury—the judge did not feel that he had such discretion. He felt that such discretion arose only where the need for a special advocate would be a rarity. In a situation such as asset freezing, where it is clear that closed material will often be relevant, it is for Parliament to impose such a scheme through legislation, not for the judge to introduce one. That is what we are doing these provisions.

There might be circumstances in which a hearing is not necessary or appropriate. The draft rules indicate that all proceedings under this part of the Bill must be determined at a hearing, except when the applicant withdraws the application to set aside the asset freeze, when the Treasury agrees to the asset freeze being set aside, when the appellant withdraws an appeal, or when the Treasury consents to an appeal. In those latter cases, a hearing will not necessarily be needed or required, so we need a little flexibility to enable them to be disposed of without a hearing.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry to intervene on a slightly peripheral point, but I hope that we will have a chance of dealing with it when we look at the clause, because we have not touched on it. The clause is procedural, but the Minister will be well aware that he has a problem in relation to the power to seize assets under the United Nations order in council. Was there any proposal to address that issue in the Bill?

Tony McNulty (Labour, Harrow East)

No, in the sense that we are currently appealing against that decision, so the position is very difficult. I cannot say in absolute terms whether the appeal will have run its course by the time that the Bill has completed its passage through Parliament, but I will keep that under advisement. I will not give an absolute no, but I am in the hands of the timing of the appeal process and, of course, its outcome. I would not dismiss what the hon. and learned Gentleman says, but we are really talking about formalising and improving the system as it stands.

To return to the point about how to dispose of cases that do not necessarily need a hearing, we might well need an amendment that adds a phrase such as “where both parties agree to proceed without a hearing”, rather than making things compulsory, as at present.

Concern has also been raised about the interests of a third party with a legitimate claim on frozen funds. The Treasury may—and usually does, when requested—grant licences to allow exceptions to the prohibitions. Licensing is an integral part of ensuring that asset-freezing measures are proportionate, while ensuring that funds are not diverted to terrorist purposes. Licences also ensure that third parties are not harmed by the asset freeze.

Where someone has a legitimate claim to frozen money, the Treasury can grant a licence to allow payment to be made. The third party will be able to bring a challenge to court where they consider the Treasury’s refusal to grant a licence unreasonable or inappropriate.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The Minister is referring to the rights of possibly innocent third parties. Is he saying that those will be dealt with in the rules, or that something in the Bill provides for innocent third parties to make an application to the Treasury?

Tony McNulty (Labour, Harrow East)

No, I think that I am saying that that will be duly reflected in the rules of court because it is part of the process now.

Amendment No. 207 is not necessary. It would be more appropriate to preserve the court’s discretion to determine whether a hearing is appropriate and to avoid inappropriate wasteful hearings, notwithstanding my point about cases where both parties agree not to proceed with the hearing. We therefore resist the amendment, although we do not dismiss it entirely.

Amendments Nos. 208 and 214 would—quite rightly in the minds of those who tabled them, I guess—delete some or all of clause 57(4), which would entirely defeat the purpose of the asset-freezing provisions in part 5. This part creates, by way of the appointment of a special advocate to represent the interests of the applicant, a way in which the Treasury can reveal to the court and to the special advocate closed material on which it relies, but that it cannot, for reasons of national security or public interest, make available more widely—including to the applicant. I will therefore resist those amendments.

Amendments Nos. 213, 216 and 217 all relate to the protection of fairness, and I agree with the right hon. and learned Member for Sleaford and North Hykeham that it is very important that, in all disputes, the proceedings are, and are seen to be, conducted fairly. Of course, I am going to invoke article 6 of the European convention on human rights, among other things. In a very recent judgment—I think that it was made in October or November last year—a similar special advocacy system was broadly afforded a clean bill of health by the House of Lords. It was an overall judgment. All sides sought clarity from it, although that was not forthcoming in all regards—there was a little bit in it for everybody. The amendments are not necessary for the protection of fairness for the individual.

Amendment No. 225 is a requirement to disclose adverse material. This too runs counter to the whole premise of a special advocate system, which, at its root, has a desire to instil as much fairness as possible in the system. Amendment No. 226 refers to the proposed additional requirement for material in support of the applicant to be disclosed, which, again, runs counter to what we are seeking through the special advocacy system and by trying to be as fair as possible to the designated person.

In summary, we think that putting the special advocate element in the Bill is useful and substantially better than the system that prevails for all concerned at the moment. It is rooted in law and systems that are already in place under control orders, the Special Immigration Appeals Commissionand the Proscribed Organisations Appeal Commission. I do not think that any of the amendments offer a substantial improvement, and I urge that they all be resisted.

Mr. Hogg rose—

Edward O'Hara (Labour, Knowsley South)

Order. Before I call the right hon. and learned Member for Sleaford and North Hykeham, it is quite clear that the nature of this block of amendments is such that the Minister has said all that he would need to say in the clause stand part debate, so I will group that debate with this one. If, therefore, any member of the Committee wishes to speak to that motion, now is the time to do so.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I understand that decision, Mr. O’Hara, and make absolutely no complaint about it. May I say, however, that I am very unhappy about the response that we have received, and I am going to explain the reasons why over some little length. To begin with, let us be absolutely plain that a special advocate is a very imperfect procedure for guarding people’s rights. A special advocate is not the personal representative of the affected person; he has a special status. He may not reveal large chunks of the evidence that is communicated to him. Consequently, he cannot get the instructions of the affected person as to that material. In substance, the special advocate’s duties are not owed to the affected person, and that is why many special advocates have expressed real concern about and dislike of the procedure. I have never served as a special advocate, but I certainly understand why those who have believe that the system is essentially flawed.

Secondly, we have been told that draft rules will be laid before the House on Report. That may well be true, and I will welcome it. Let us remember, however, that we cannot amend the draft rules. They will considered, I think, under the affirmative procedure, but they may be either rejected or accepted in whole. I dislike rules of such far-reaching consequence being dealt with by statutory instrument, rather than in a Bill.

It is important that the Committee, and through it the wider public, understand how far-reaching clauses 57 and 58 are. They will enable the maker of the rules to publish rules that almost entirely in favour of the Treasury and bear little relation to the interests of the affected person. As has been pointed out, under clause 57(4), proceedings could take place

“in the absence of any person”.

Perhaps that is not the intention, but the special advocate could therefore be excluded.

Evidence will not have to be disclosed to the affected person; only a summary of evidence will be required. In fact, the proceedings could be determined without any hearing at all. No doubt all that is meat and drink to the Treasury, but to an affected person it is pretty ghastly.

Then we examine the rules under clause 58 and find that the disclosure provisions are such that the maker of the rules can, in effect, exclude almost any material from the affected person. There are very few safeguards in the Bill and my amendments are intended to redress that balance. Amendment No. 213 would require the maker of the rules to ensure that

“the manner in which the proceedings are conducted is fair to every party to the proceedings.”

I ask rhetorically why on earth we cannot put that in the Bill. It seems to me that that is the duty of every parliamentarian. Amendment No. 216 would require the maker of the rules to ensure that

“the withholding of the material would not cause injustice to a party to the proceeding.”

Again, why on earth are we not putting that in the Bill?

Amendment No. 217 would require that a summary be

“sufficient to ensure that the conduct of the proceedings will be fair to all parties to those proceedings.”

That seems to be a basic requirement. Amendment No. 266 would require that, in the event of proceedings, the

“material which supports the case of a party”

may not be withheld. My intention is that the Treasury should not be in a position to withhold from parties to the proceedings material that undermines its case or promotes that of the affected person. The Treasury does not have to bring forward any freezing procedure if it is worried about the nature of information or the means by which it has ascertained it. If it does, it seems to me that some basic rules should be observed.

The hon. Member for Meirionnydd Nant Conwy made a perfectly fair point about affected third parties. We are told that the rules will address that, and let us hope that they do, but I cannot see why the Bill does not address it. It is of fundamental importance. I shall not withdraw the amendment. I shall press it to a Division, and the same will apply to stand part. The clause is profoundly unsatisfactory and I am against it.

Clause 58

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment No. 215, in clause 58, page 41, line 19, after ‘that’, insert

‘provided that the person appointed as the special advocate is present at the consideration of the application,’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following amendments: No. 227, in clause 59, page 42, line 12, leave out ‘may’ and insert ‘shall’.

No. 218, in clause 59, page 42, line 18, after ‘excluded’, insert

‘including the consideration of the application referred to in section 58(3)(a)’.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I will speak primarily to amendment No. 215. The clause enables rules to be made about disclosure. I have already pointed out how far-reaching the withholding of relevant information can be. That being so, it is extremely important that someone who has some regard for the interests of the affected person should be present, especially as subsection (3)(a) states that the rules of court must secure

“that the Treasury have the opportunity to make an application to the court...not to disclose material otherwise than to...the court, and...any person appointed as a special advocate”.

Subsection (3)(b) states:

“such an application is always considered in the absence of every party to the proceedings (and every party’s legal representative)”.

Those rules might preclude the affected person or their legal representative from being present at an application. That could have a dramatic effect on the nature of the material that will be presented to the affected person down the track. Who will represent the interests of the affected person at that point? The Minister will no doubt say that the special advocate will, and that is precisely what my amendment says.

Dominic Grieve (Conservative, Beaconsfield)

I agree with my right hon. and learned Friend that the wording of clause 57(4) could, strictly speaking, despite the comments of the hon. Member for Somerton and Frome, allow everyone to be excluded from the proceedings. However, it seems to me that the special advocate is not a party to the proceedings. I find the wording of clause 58 odd, and I think that my right hon. and learned Friend’s amendment would make an important clarification, but I would not read clause 58(3)(b) as precluding the presence of the special advocate at the application.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I agree with my hon. and learned Friend. It does not, but it does not require that either. I tabled amendment No. 215 because I think it essential that the special advocate’s presence is ensured. I agree entirely with my hon. and learned Friend’s interpretation. That being so, the question is whether we should make it mandatory that the special advocate should be present. I believe that we should, for the reasons that I have outlined. The Bill may permit that, but I want it to be mandatory. That, perhaps, is the only difference between my hon. and learned Friend and me. The Minister might well assert that the special advocate will be present under the rules of the court, in which case I say: let us put it on the face of the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

Is it the right hon. and learned Gentleman’s view that the Treasury representative is present at that consideration?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Yes.

David Heath (Liberal Democrat, Somerton and Frome)

I am not clear. It seems to me that the Treasury is a party to the proceedings.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Gentleman is quite right, but if he is good enough to look at clause 58(7), he will find that

“references to a party to the proceedings do not include the Treasury”.

The Treasury representative is there. The person who is not there, and who cannot be there, is the affected person or his personal representative. Nothing says that the special advocate must be there, and that is what I wish to achieve.

David Heath (Liberal Democrat, Somerton and Frome)

The right hon. and learned Member for Sleaford and North Hykeham has a point here—the special advocate should be present when an application is considered. I accept that the fact that there is no provision for it, but that he or she is not excluded leaves open whether or not he or she is there, but the Treasury is inevitably party to the application because it is the Treasury that is making the application. Under any normal arrangement, the special advocate ought to be there and there should be specific provision for that in the Bill. I hope that the Minister will accept that principle and, if he cannot accept the amendment, at least make it clear that that is the intention in the rules of court that he intends to bring forward and which we will see before Report.

Tony McNulty (Labour, Harrow East)

I am sorry to disappoint because we are where we are, as we were with the last set of clauses. I have not asserted that this will be in the rules of court; I have given the Committee an assurance that it will be. If we are serious in our deliberations to achieve some consistency across our primary legislation, this is lifted almost entirely out of the primary legislation provisions relating to the SIAC, POAC or control orders. There will be the references that the hon. Gentleman requires in the rules of court, and I do give that assurance. That, with the belt and braces approach in subsection 6—nothing in the section or the rules of court made under it is to be read as requiring the court to act in a manner inconsistent with article 6 of the human rights convention—achieves the fairness point on which we all agree. However I do want it to reflect and be consistent with other legislation. That is the only reason for the configuration.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate the Minister’s point, and it is a fair one, about co-ordinating with other legislation, but I have to say that including amendment No. 215, tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham, does make perfect sense. There is an oddity about the way the original legislation was drafted. I accept the Minister’s assurances and it is a minor matter, but if my right hon. and learned Friend presses amendment No. 215 to the vote, I will support him because I do not think that I get carried away with the absolute necessity for these two forms of legislation to be identical. The regulations being identical may actually matter rather more and I would assume that they would still be identical. It is an oddity and I think it probably reflects, not a drafting error, but a tendency of the original drafter to short-cut slightly. It seems abundantly plain that the special advocate has to be present.

Tony McNulty (Labour, Harrow East)

I take the point that it is a relatively minor drafting issue, but that the substance of it is serious. I do not dispute its serious nature. For example, for control orders, the provisions for the presence of a special advocate at the application hearing appear not in the Terrorism Act 2006, but in the rules made under it—now part 76 of the civil procedures rules.

I am not a seeker of consistency purely to compound a previous drafting error. I take the point about the greater degree of eloquence and clarity—to say the least—in the amendment, but that does not mean that I will accept it. I am happy, however, to reconsider the matter on Report. Certainly the important and substantive point, on which we all agree—that the special advocate should be in the room—was well made. As I said, I shall reconsider the matter in relation to the Prevention of Terrorism Act 2005 and other legislative frameworks. If the amendment would work, and it is in order, I shall return with something similar, to put in the Bill, rather than in rules, something on which we all agree. I am more than happy to give the assurance—not an assertion—that I am prepared to do that.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

It would be churlish of me not to acknowledge and welcome what the Minister has said, and on that basis I shall not press the amendment to a vote. However, may I say that his remarks rather indicate the importance of putting in the Bill the requirement reflected in amendment No. 215? When enacting legislation, we look back to past legislation, as he has done. He pointed out the previous legislation making provision for the special advocate, and remarked that it did not make provision for the presence of a special advocate in counterpart circumstances. I suspect that this will not be the final terrorism Bill to be considered by this House, and in future Bills I want the Committee to be able to say, “Well, in the Counter-Terrorism Act 2008, special provision was made for the presence of the special advocate in counterpart situations, so we shall do the same.” We build by precedent, so I want to say something to that effect in the Bill. However, he has been gracious enough to say that he will think about it, so I beg to ask leave to withdraw the amendment.

Clause 62

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 209, in clause 62, page 44, line 1, leave out subsection (3).

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment

No. 222, in clause 90, page 59, line 34, leave out from ‘proceedings)’ until end of subsection and insert

‘shall not come into effect until the rules of court have been approved by a resolution of each House of Parliament as provided for in section 62(4).’.

Dominic Grieve (Conservative, Beaconsfield)

Clause 62 is about the initial exercise of powers by the Lord Chancellor. It explains that the Lord Chancellor may exercise his powers by making rules of court. Subsection (3) states:

“The requirements of subsection (2)(a) and (b)”,

which relate to consultation with the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland,

“may be satisfied by consultation that took place wholly or partly before the passing of this Act.”

I would like some clarification from the Minister. Am I to assume that the consultation has already taken place or that it will take place before the Act comes into force? Or should I assume that, in fact, there is no consultation because it took place when the rules of court were brought in for control orders? It will be useful for the Committee to know that. In addition, amendment No. 222 requires the resolution of both Houses of Parliament before any rules of court are brought into effect.

Tony McNulty (Labour, Harrow East)

Under the Bill, the asset-freezing provisions come into force at Royal Assent. Therefore, if the amendments are accepted, we will have a period in which the rules of court will not have been consulted on or agreed but the personal parts of the Bill will be in force, which is clearly not appropriate. As the provision says, we need to have a full and substantive consultation. None the less, it is highly desirable that the rules of court, which are made under clause 62 and the contents of which are provided for in part by clauses 57 and 58, should have effect as soon as possible after part 5 of the Counter-Terrorism Act comes into force. That is because the rules of court will set out the procedure which is to apply to the appointment of the special advocate, for which provision is made in clause 59.

As the hon. and learned Member for Beaconsfield said, part 2 states clearly that we should properly consult with the Lord Chief Justice of England Wales on the rules applicable in England and Wales, and the same for Northern Ireland. That is right and proper. It is simply a matter of timing so that we have the consultation on the rules of court taking place at the same time as we bring in part 5. The notion of part 5 commencing before the rules of court are in place is inappropriate. The notion that there should be any delay in the implementation of part 5—contiguous hopefully with Royal Assent—would be unfair to the individuals concerned. Therefore, it is a matter of timing. We want as much consultation as possible, but we want to do it in a timely fashion.

David Heath (Liberal Democrat, Somerton and Frome)

I understand entirely what the Minister is saying, but he has created a bit of a conundrum here. If the commencement is at the point of Royal Assent, and the proceedings cannot take place without rules of court, the Lord Chancellor is under a duty that applies before consent is given to the Act. That is a very odd thing to put into legislation; a duty that must have been fulfilled before the Bill is an Act in order to apply the duty to the Lord Chancellor. Does the Minster accept that that is a slightly topsy-turvy, Humpty-Dumpty way of making a decision?

Tony McNulty (Labour, Harrow East)

I shall not delay the Committee in the context of whether I think it is topsy-turvy, Humpty-Dumpty or any other such provision. The key purpose is that part 5 should come into effect as soon as is practicable—at Royal Assent for example. We have just discussed how the asset-freezing provisions can impact very directly on individuals.

To answer the hon. and learned Member for Beaconsfield, there has been a good deal of consultation within the relevant Departments, but not yet with the Lords Justices of Appeal in respect of England and Wales and Northern Ireland, because the draft is not in that sort of shape yet. Yes, that consultation has to happen and, yes, Parliament must deliberate on the matter as well. I assure the Committee that it is only a matter of time.

We should consider the import of the direct effect on individuals of the provisions set out in part 5, notwithstanding the hon. and learned Gentleman’s earlier point about what may or may not happen in terms of the appeal while the Bill travels gently through both Houses of Parliament. Things may be topsy-turvy and Humpty-Dumpty, but I thought that all hon. and hon. and learned Members had agreed that, given the import of the effect that the provisions will have on an individual—they can be extensive and serious—the sooner the measure is in place with a special advocate apparatus around it, the better for all concerned.

Dominic Grieve (Conservative, Beaconsfield)

If I were being slightly naughty—and I shall be—I would gently say to the Minister that there must be a cost involved in this consultation. If the consultation takes place and, for whatever reason, the Bill never gets on to the statute book, money will have been wasted. I appreciate the Minister’s point, but there is an anomaly about providing a mandatory requirement on the Lord Chancellor to do something that only becomes mandatory when the Bill is enacted, although he will have done it before it all happens. This is not the first time that we have encountered such anomalies. I dare say that, if we changed the rules so that Ministers had to pay out of their own pockets for any money wasted as a result of a Bill not being enacted, this practice might cease.

I am pleased to hear that there will, at least, be consultation on the provisions that we are talking about. It is not deemed, as I thought might be the case, that the previous consultation would be sufficient. On that basis, I beg to ask leave to withdraw the amendment.

Clause 64

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 134, in page 45, line 6, leave out ‘national security’ and insert

‘preventing an offence with a terrorist connection’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following amendments: No. 32, in page 45, line 7, leave out paragraphs (b) and (c).

No. 185, in page 45, line 9, leave out paragraph (c).

Dominic Grieve (Conservative, Beaconsfield)

We come now to part 6, which deals with inquests and inquiries and is of some concern to me, notwithstanding the helpful, useful presentation by the Government last week that explained their reasoning in respect of this part of the Bill.

Amendment No. 134 is intended to probe the Minister on the circumstances in which a certificate will be issued for an inquest to be held without a jury. Clause 64 states:

“The Secretary of State may certify in relation to an inquest that,”

in his opinion,

“the inquest will involve the consideration of material that should not be made public...in the interests of national security...in the interests of the relationship between the United Kingdom and another country, or...otherwise in the public interest.”

Owing to the nature of the Bill’s original introduction, my understanding has always been that this provision will apply principally to inquests carried out in respect of matters with a terrorist connection, although perhaps because of the scope of the powers under clause 64(2) it will apply potentially in a much wider set of circumstances. I wish to probe the Government on that point.

The words,

“in the interests of national security...in the interests of the relationship between the United Kingdom and another country, or...otherwise in the public interest”,

provide as wide a definition as one can possibly get. The clause therefore goes much further than dealing with terrorism cases. I had the impression that the sort of case about which we might be concerned is where a terrorist is shot dead by the police, and the police had intelligence information relating to his activities that could not otherwise be made public—something that I can see is a very real possibility. In fact, the wording we are providing here potentially enables such an appointment to be made in a much wider set of circumstances. It is for that reason that I would seek some clarification from the Minister as to what those circumstances may be.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I rise to support what my hon. and learned Friend the Member for Beaconsfield has said, but I do it more robustly than he has done, because he has been rather gentle in his approach to the Government in this matter. I remind the Committee of the iron rule of politics, which I mentioned several sittings ago, that once power is granted, it is always, on occasion, abused. Therefore one has to ask the important question: should this power be granted in the first instance? That takes one to the question, what in fact are we doing in regard to this power?

I acknowledge that jury trials in inquests are pretty rare. In the context of inquests overall, they are a small minority. It is also to be recognised that they are sometimes very important in terms of public confidence. When difficult deaths occur, the public sometimes expects there to be a jury. A good example of that is the jury that Lord Justice Scott Baker convened in the case of Princess Diana. It may be recalled that the Court of Appeal substituted a decision that there should be a jury trial for the previous coroner’s decision that there should not be one. That reflects the importance of jury trials in difficult cases.

What we are doing here is enabling the Secretary of State by himself alone to certify that a jury should not be convened. The circumstances that have to be satisfied are set out in new section 8A(1)(a), (b) and (c). I entirely agree with my hon. and learned Friend that paragraph (c) is couched in the most extraordinarily wide language:

“otherwise in the public interest.”

The Secretary of State may well hold that there are many things that it would not be in the public interest to disclose. Let me give some examples.

Let us say, for example, that a British national died in Guantanamo Bay and his or her body was repatriated to the United Kingdom. At that point, a coroner would have jurisdiction, and I think it is the case that the public would expect there to be a jury-based inquest into why and how that individual died in Guantanamo Bay. However, I can see the Secretary of State saying, “Ah. This is not something that is conducive to our relations with the United States, so paragraph (b) is satisfied.”

Or let us say that a plane carrying somebody who was the subject of extraordinary rendition landed at Heathrow. We know they have landed in the United Kingdom on occasion. Unfortunately, the person being transferred to wherever was dead. At that point, the coroner—normally speaking—would summon a jury; I am sure the public would expect the jury to be summoned. Yet, the Secretary of State could say, “Ah. We do not wish to see our relations with the United States imperilled. We will have this thing without a jury.”

Or let us say there is a situation which is rather closer to what we have in our minds at the moment. Say the police shoot somebody in a house. That does not have to be terrorist based: they just shoot somebody. I can well see that the Secretary of State may be persuaded, for example, that it is not a very good thing for the public to know the engagement rules under which the police are operating. They might dress it up by saying to themselves, “Well, it is not a very good for terrorists to know precisely what the engagement rules are that would justify the armed police opening fire.”

Once we start giving powers to exclude juries from inquests we can be quite sure that on occasion they will be abused. For example, I have a case in mind—perhaps the Committee has a case in mind—where a person was shot in circumstances that are a bit hard to explain. The police may feel uncomfortable about such a matter and seek to persuade the Secretary of State that it would not be in the public interest to allow a detailed inquest to be held and a certificate might be issued. As the Bill is presently drafted there is absolutely nothing to stop that.

A number of amendments seek to address this problem. My own preference would be to have some other figure involved. I suggested that the Lord Chief Justice should be required to agree that the criteria were satisfied. At the very least we should strike out the phrase

“otherwise in the public interest”

because, goodness knows, that is as wide as it conceivably could be. My strong view is that this Committee is in the business of safeguarding liberty and the public interest. We are not in the business of giving the Secretary of State the power to exclude juries whenever it is in his or her opinion in the public interest so to do.

David Heath (Liberal Democrat, Somerton and Frome)

I intend to speak to my amendment No. 32, which is in this group. I will preface my remarks by again saying how grateful I was for the opportunity to go to the Home Office and discuss these matters with officials. It was extremely helpful and it is a good Government policy to share views on contentious parts of Bills in that way. Having said that, I am not persuaded that the provisions within the Bill at the moment are an appropriate way of dealing with a very circumscribed issue that was described to us as a problem. I still believe that the much-promised coroners Bill is the appropriate vehicle for reform of the coroners system and for this purpose, notwithstanding that I understand that a long-awaited inquest cannot be held under present arrangements.

Some fundamental principles of the coroners system and article 2 rights with regard to the investigation of deaths are in danger—I put it at no higher than that—of being compromised by the proposals before us. There are two issues here: first, the inquest being held without a jury and, secondly, the inquest being held by an appointed coroner and in private. We are dealing at this point with the certificate requiring the inquest to be held without a jury. The Minister may well say that this would affect only a very small number of cases because the vast majority of inquests—98 per cent., I think—are already held without a jury. The 2 per cent. that have a jury present are the most contentious of inquests and they are the ones that require the most careful scrutiny because the death that has occurred involves an agent of the state. It is right that people should clearly have the opportunity to see that the state is not acting as judge and jury in its own court and that there is proper scrutiny of all the arguments, a proper investigation and a proper verdict. The public is rightly reassured by a jury being present in those circumstances.

It may well be that there is a very limited number of cases where there is a difficulty with that and I understand that. I am not trying to disguise the fact that there may be difficulties where there is evidently an expectation that material will be revealed in the course of an inquest that is prejudicial to our national security. I understand that, but when I question whether a public interest immunity certificate cannot suffice I am told that the measure is better than the PII system because it will ensure that the eventual outcome is made public.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Gentleman’s point has substance. The situation arises in terrorists trials. On the whole, notwithstanding the jury’s presence, it would be impossible to conduct such trials and admit quite sensitive material. There is no reason in principle why some of that procedure could not apply to inquests, although we may have to wait for a coroners Bill to see such measures put forward.

David Heath (Liberal Democrat, Somerton and Frome)

The right hon. and learned Gentleman is right. I can conceive of constructions that would enable that to take place. I accept at face value at the moment the Government’s intention and the arguments underlying it, but I do not agree with it. However, I cannot accept the way in which the proposed new section 8A(1) is drawn because, as has been said, it is in the widest possible terms. The hon. and learned Member for Beaconsfield was extraordinarily gentle with the Government on the issue—I share those gentle criticisms, but I tend to take a much stronger view on the matter than he appeared to. Perhaps he is reserving his wrath for later in the proceedings.

Dominic Grieve (Conservative, Beaconsfield)

I started gently, but we are debating a number of proposed new clauses and a large number of amendments in the group. The Government should first justify their position. The amendments are probing and I want to hear what the Minister has to say. I am also beginning to formulate in my own mind the necessary response to the Government’s proposals, and I have tabled new clause 13—I fear that we will not debate that this afternoon but on Thursday at the earliest—which may propose alternatives. I remain unhappy with the Government’s proposals, but as a result of the briefing I have a much better understanding of its intentions.

David Heath (Liberal Democrat, Somerton and Frome)

I now know that the hon. and learned Gentleman and I are on a rising curve—a crescendo—of indignation, which is welcome. However, even if I accept for the moment the Government’s intentions on the clause and that there might be circumstances in which a Secretary of State should certificate that an inquest should be held without a jury

“in the interests of national security”,

I see not the slightest reason why that argument should be extended to

“the interests of the relationship between the United Kingdom and another country”

or to the sweeping generalisation,

“otherwise in the public interest”.

Amendment No. 32 is not probing and I suggest that amendment No. 185 should not be probing. They would be substantive amendments. The phrase

“otherwise in the public interest”

effectively immunises the provision against any challenge. There is always a circumstance

“otherwise in the public interest”,

that the Secretary of State could adduce to allow him to certificate an inquest. I am not prepared to give such a power to a Minister of the Crown under those circumstances.

In respect of the phrase

“interests of the relationship between the United Kingdom and another country”,

I am getting sick and tired of worrying about the embarrassment of other countries and adapting our legal system to accommodate it. I do not want our legal system to be based on whether it will embarrass a prince of the royal house of Saud or, in the case of military inquests, our allies.

I feel strongly that there should be a clear limitation on the power if we are to accept it, which should be to

“the interests of national security”.

That is already a wide construction and allows Ministers to argue on a wide front that matters should be included. I see not the slightest reason for extending it with proposed new paragraphs 8A(1)(b) or (c). Unless I hear the most cogent arguments from the Minister, I am inclined to urge the Committee to reject both paragraphs (b) and (c), or just paragraph (c) if that is the Committee’s preference.

Dominic Grieve (Conservative, Beaconsfield)

My preference is the exclusion of both paragraphs (b) and (c), and to that extent I prefer the hon. Gentleman’s amendment to my second one, but we can reflect on that when we have heard from the Minister.

David Heath (Liberal Democrat, Somerton and Frome)

Indeed, I never prejudge the Minister’s persuasiveness on such matters, and I shall listen to him carefully, but my preliminary position is that the Committee should divide on this because it is an important matter of principle.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

May I add my thanks to the Minister for allowing us to speak to officials about this matter last week? That was very helpful.

I remind the Committee that we are amending the Coroners Act 1988 under which a coroner conducting an inquest generally has discretion to sit with a jury, but there are four circumstances in which he or she must summon a jury. They are when there is reason to suspect

“that the death occurred in prison...while the decease was in police custody, or resulted from an injury caused by a police officer in the purported execution of his duty”

or

“that the death was caused by an accident, poisoning or disease notice of which is required to be given...to a government department”

or

“inspector appointed under section 19 of the...Health and Safety at Work etc. Act 1974”

or

“the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of...any section of the public”.

Some years ago, I sat as a deputy coroner, and one reason why I opted for sitting with a jury was that in some classes of cases—nothing to do with terrorism or the main purport of the Bill—I thought it was in the public interest for the inquest to be open and that a jury should decide the cause of death. More to the point, I believe that summoning a jury in such circumstance reinforced public confidence in the system. We all know the adage that justice must be seen to be done, and there is seldom a better example of justice being seen to be done than a jury sitting in public and deciding a major issue such as the reason for a sudden or inexplicable death.

The various categories of the Coroners Act 1988 assure the public that deaths in such circumstances are not covered up, and that the jury can hear everything and decide. That is clearly important in maintaining public confidence, for example, in the conduct of police and prison officers. I am not denigrating police or prison officers, but if there is a death in their custody, it is clear that to ensure confidence there is nothing better than public scrutiny by a jury.

Another point that has not been mentioned is that although the provision is contained in the Counter-Terrorism Bill, my reading suggests that it is not restricted to cases involving allegations of terrorism, so it could be extended to any situation involving a death in police custody and so on.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Gentleman is entirely right. If he bears in mind that the Defence Secretary, for example, went to the High Court to try to prevent coroners from expressing a view on the equipment provided to soldiers who died in Afghanistan and Iraq, one may suppose that that could be used to prevent juries from inquiring into the death of servicemen abroad when there could be criticism of their senior officers.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I hear what the right hon. and learned Gentleman says, and I have read views along those lines. I do not think it is uppermost in the Government’s intentions at the moment, but he may well be right. What I am concerned about is this: let us say there is a violent incident in a pub, a couple of police officers are called and, during the mêlÃ(c)e, an individual is killed. That is a situation in which, now, the coroner would sit without a jury. I would find that extremely undermining of confidence in the police.

I speak as the son of a police officer, the brother of a police officer and the cousin of a police officer—we are a boring family, but there we go. I have a high regard for police officers. I prosecute, defend and do whatever is necessary, but I am not one of those who lines up to knock the police all the time. That has never been my way of thinking, and I believe that this could be extremely damaging to the police. If the provision is used routinely in the circumstances to which I have alluded, it will undermine confidence in the police to a huge degree, and that is the last thing that I—or, I am sure, any other member of the Committee—would want to see happen.

Let us look at the way in which the clause will work. The Secretary of State will decide, for whatever reason—hopefully not for political reasons, though it is not impossible that that may happen in the future—whether an inquest is to be held without a jury.

David Heath (Liberal Democrat, Somerton and Frome)

Has the hon. Gentleman noted that in this clause, unlike in previous clauses, it is the Secretary of State—the interchangeable Secretary of State who may be the Home Secretary or another departmental Secretary of State—and not the Lord Chancellor who is specified? Would he have any greater confidence if, at the very least, the words “Secretary of State” were replaced with “Lord Chancellor” so that we had somebody who had a responsibility to perform his duties in the interests of justice, rather than in the interests of the Government of the day?

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Yes, I think I would feel slightly more confident, but I would not feel cock-a-hoop about that either. I suppose I would feel marginally more comfortable. As it stands in the Bill, the decision is taken by the Secretary of State, whomsoever he or she might be, and it seems that the only potential challenge to that decision to hold an inquest without a jury would be our old friend judicial review in the High Court.

The purpose of a judicial review would be to challenge the legality of a decision not to allow a jury. Given that the grounds for the Secretary of State’s decision could be under the broad and non-specific public interest limb or, indeed, the national security limb, a decision might be very difficult to challenge in practice. The Bill is silent on whether interested parties, such as family or legal representatives, are also excluded.

The basis for deciding that a jury should be excluded is:

“the inquest will involve the consideration of material that should not be made public”.

Therefore, by implication, anyone who is not security cleared is likely to be excluded from proceedings in the same way that they would be from, for example, closed sessions in control order proceedings. Perhaps the Minister will correct me on that if I am wrong.

There are real concerns about this part of the Bill. There are questions about the compatibility of the proposals with the UK’s legal obligations. The European Court of Human Rights, in the case of Jordan v. UK, concluded that there were five essential requirements of the investigatory obligation arising from deaths that occur due to state action or while someone is in the care of a state body: independence; effectiveness; promptness and reasonable expedition; public scrutiny; and accessibility to the family of the deceased. That position has been upheld and confirmed as a minimum standard in domestic cases by the Appellate Committee of the House of Lords, but this exclusion could contravene that.

A more general concern is—I say this quite openly and without malice or anger—that this provision would seem to be tailor made for another Jean Charles de Menezes situation. In such circumstances, no jury would be involved. For the past few minutes, I have been trying to make the case that that will undermine public confidence, which will put us at a gross disadvantage. We always talk about legal niceties, but the bottom line must always be to ensure that justice is seen to be done. I am afraid, however, that the provisions in clause 64 will drive a coach and horses through that very important principle.

If the Minister said, “Well, it will only occur when there are very delicate and important national security considerations”, I might be quite prepared to listen and accept that. However, we must bear in mind paragraphs (b) and (c) of new section 8A(1), which I, like the hon. and learned Member for Beaconsfield, would prefer to vote on. Nobody would disagree on the point about national security, but public interest? Who decides the public interest? It must always be the Secretary of State, but, with great respect, Secretaries of State sometimes think mainly in political terms. The measure simply cannot be right. I support the amendment and hope that the Minister will give us some assurances.

Tony McNulty (Labour, Harrow East)

The hon. and learned Member for Beaconsfield knows that juries do not sit on Ministry of Defence cases. Coroners in such cases have been extremely robust in their findings, so I do not know how his point was evidence for opposing the Government’s intentions—the clause has nothing to do with such cases. The MOD was challenged on one particular aspect of law and the coroner’s criticism in one particular case. This is not the blanket, cover-all approach that he suggested.

The hon. Member for Meirionnydd Nant Conwy quite fairly invoked Jordan and our ECHR responsibilities, which is precisely what the clause is about—hopefully, hon. Members will have been aware of that from the seminar. It is not just about terrorism. The criteria are drawn broadly to catch not everything, but those cases that should be caught. I do not want to go into the specific case that has, in part, prompted the provision, but it would not be covered by paragraphs (a) or (b). It sits very squarely in paragraph (c) for perfectly reasonable reasons.

The public interest simply cannot be defined as whatever the Government or Secretary of State of the day fancy. There are plenty of tests for determining the public interest, and that relates to article 2 of the ECHR, Jordan and all the other aspects. As hon. Members know, it relates purely to the finder of fact provisions for the coroner and to giving families the closure and clarity that they require, which, for a small number of cases, we cannot give them.

There is no alternative to the provision in the Bill, although I have not read new clause 13, which might be proffered as an alternative. However, a small number of cases are in limbo, with all the incumbent stress and everything else entailed for the families concerned. That was what prompted this provision, not nonsense about Guantanamo Bay, extraordinary rendition and the other rubbish spoken about by the representative of the libertarian right at the back of the room. This is very germane to a small number of cases. It will afford coroners the ability to do their job under article 2 of ECHR and afford some respite to families whose cases are held in limbo.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The Minister is obviously engaging deeply with this subject, as I would expect. He said, for example, that families should have closure. My experience as an advocate in inquests, and also from sitting as a deputy coroner, is that families very often leave an inquest feeling aggrieved because they did not get the right verdict. I suggest to the Minister that they would probably be less likely to be aggrieved if a jury decided rather than a single person.

Moving on to a slightly different point, if the Minister is saying that this will apply to only a small number of cases, he does not gainsay the fact that this could be opened up and used as often as was liked. It could be used every time someone dies in police custody or every time someone dies with any peripheral involvement of the police. My point is that that could happen, and I hope that he will tell me that I am wrong.

The rest of the debate is in Hansard.