Counter-Terrorism Bill

Public Bill Committee, 15 May 2008.

Edward O'Hara (Labour, Knowsley South)

Welcome back. I trust today will bring a speedy and satisfactory conclusion to our proceedings.

Clause 68

Dominic Grieve (Conservative, Beaconsfield)

Regrettably, I do not think very much of clause 68, and do not understand at all the need to amend the definition in the way proposed. I cannot conceive of a circumstance in which a “racial” cause is not already encompassed within “political, religious or ideological”, because anybody seeking to carry out terrorism on the back of a racial motive would already be caught. For us to add yet another unnecessary category to this growing list seems to me bad legislation, and we should try to avoid it.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I agree with my hon. and learned Friend. In fact, I tabled an amendment—I can well understand that that is unnecessary, because we have a stand part debate—to delete the word “racial”. However, I agree with my hon. and learned Friend that we should be very cautious about extending the range of “terrorist offences”. We need to keep in mind that conviction for a terrorist offence attracts a whole range of penalties and consequences that go outside the normal range of criminal law. The Committee has already dealt with freezing orders and forfeiture orders, and we are conscious that terrorist-aggravated offences receive higher sentences. Therefore, we should not add to the classification of “terrorist offences” unless there is a very compelling reason.

Moreover, as the Committee will know, racially-aggravated offences already attract higher sentences under existing law. We are entitled to ask, as my hon. and learned Friend has asked, what the word “racial” adds to that which is already in the definition. My own belief is that its inclusion is simply for political correctness, and I suspect that there is absolutely no justification for it. I shall of course listen to the Minister explain his reasons, but my instinct is to vote against clause stand part.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I support those points. The present definition would not include matters of a racial nature, and therefore we are very suspicious of this change and of the need for it.

Tony McNulty (Labour, Harrow East)

Funnily enough, we start with consensus, in the sense that neither Lord Carlile nor I argue that the change broadens the offence. If it adds anything, it is clarity, because where “religious” is already utilised in our law, it has increasingly been the case that “racial” has been added as well. I agree broadly that anything that is racially motivated would be captured by the original wording. However, Lord Carlile says that the words are added only for clarity—not political correctness or any such nonsense—and to bring our definition in line with European and international ones, given that UN Security Council resolution 1566, which defines terrorism, includes the word “racial”, and the Council of Europe convention on the prevention of terrorism 2003/32 also uses that word. That is the only reason that the words are added.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The Minister seems to have said that he would expect such offences to be covered by the present definition anyway, and that the change is about adding clarity. Does he not agree that, as a general principle, shorter legislation is better than longer legislation?

Tony McNulty (Labour, Harrow East)

No, not necessarily. As a guiding principle, that is nonsense. What we seek is clarity: the clearest, most straightforward legislation possible. We do not legislate by counting the number of words, for God’s sake. We use the appropriate number of words and the appropriate phraseology for the Bill. Whenever we put matters relating to race or religion into law, not least in relation to aggravated offences as the right hon. and learned Member for Sleaford and North Hykeham suggests, they are invariably bracketed together. For that reason, there might be confusion. I am happy to have a further look at the clause, but I do think that it adds a degree of clarity in our European and international dimensions without adding to or broadening the definition. I commend it to the Committee.

None

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 197, in clause 69, page 49, line 31, leave out from ‘Forces’ to ‘useful’ in line 32 and insert ‘with the intention that it is’.

Edward O'Hara (Labour, Knowsley South)

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

No. 44, in clause 69, page 49, line 34, at end insert ‘and

(c) intends that the information should be useful to a person committing or preparing an act of terrorism.’.

No. 198, in clause 69, page 50, line 12, at end add—

‘(4) In section 58 of the Terrorism Act 2000 (c.11) (collection of information) in subsection (1) for “of a kind likely to be” substitute “with the intention that it is”’.

No. 235, in clause 69, page 49, line 36, after ‘prove’, insert ‘—

(a) ’.

No. 236, in clause 69, page 49, line 36, after ‘action’, insert—

‘(b) that at the time of the alleged offence he did not know and had no reason to know that the information or the disclosure of such information was of a kind that was likely to be helpful to a person committing or preparing an act of terrorism;

(c) that at the time of the alleged offence he believed that disclosure of such information was in the public interest.’.

Dominic Grieve (Conservative, Beaconsfield)

The next of these miscellaneous clauses deals with the creation of a new terrorist offence in relation to eliciting, publishing or communicating information about members of the armed forces. If I may say so at the outset, I am perfectly aware of the nature of the Birmingham plot, and that there has been clear evidence that individuals have been attempting to obtain such information for the purpose of doing harm to members of the armed forces.

My concern is about the wording of this new offence:

“A person commits an offence who—

(a) elicits or attempts to elicit information about a person who is or has been a member of Her Majesty’s Forces which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or

(b) publishes or communicates information of that kind.”

A moment’s pause makes one realise that that is rather broadly drawn. On the face of it, because we are concentrating on information which is,

“of a kind likely to be useful”,

the truth is that almost any information is covered. A perfectly legitimate attempt by a law firm to write a biographical note giving details about a serving member of the armed forces might, quite innocently, reveal material which might be “likely to be useful”.

Indeed, I recollect, going back to the days of terrorist offences in Northern Ireland, a number of occasions when individuals were arrested in this country, with information on them that made the security services and the police think that a terrorist plot might be attempted. A map of the area where a Government Minister lived was found. There were details from telephone directories. There was information—all of which was publicly obtainable—that, when put together as a package, clearly indicated the possibility of a malevolent intent. Indeed, a prosecution was based on that.

On the face of it, the provision is now so widely drawn that anybody who attempted to elicit that sort of information might find themselves committing an offence. I cannot believe that that is an appropriate way in which to draft a criminal offence with a sanction of 10 years’ imprisonment. I appreciate that it could be argued that the wording in amendment No. 197 would cause another problem, as we would have to show the intention from all the surrounding circumstances—undoubtedly a more difficult hurdle for a prosecutor to get over than the current wording. However, just because something involves an extra hurdle, it does not justify our creating an offence as widely drawn as that set out in the Bill.

I know the usual answer given by Ministers in such circumstances, because I have heard it before: the Committee should not worry because no one will prosecute a 10 or 11-year-old boy who tries to elicit information about a hero figure who has come back from Afghanistan; the Director of Public Prosecutions and the Attorney-General, in their wisdom, would not prosecute such a person.

On the whole, the law must maintain an element of certainty so far as it is possible, and the clause creates an offence that is extraordinarily uncertain in its scope. Anyone, however innocently, eliciting information for a legitimate purpose about somebody who is, or has been, a member of the armed forces could be caught by it. It would be easy to show that that information might be useful to a person who was preparing an act of terrorism. If the Minister can come up with an alternative view of the drafting, I shall listen carefully. New Labour used to say that there was a third way, but at the moment I do not see it. The clause is much too widely drafted. It might also worry journalists who want to carry out legitimate journalism.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Amendments Nos. 44 and 197 are similar. A few moments ago, the Minister spoke about the need for clarity. The amendments would clarify in what circumstances the law would be applied. My hon. Friend the Member for Somerton and Frome whispered in my ear that someone preparing material for Jane’s Fighting Ships might fall foul of the clause. Did the plane spotters in Greece have a reasonable excuse for what they were doing? Was the fact that they were plane spotters a sufficient safeguard? I hope that the Minister will go away and look again at the matter. Under the amendments, it would be necessary to show clear intent that the information procured will be useful to someone committing or preparing an act of terrorism. We need that sort of clarity in the Bill, and I hope that he will take that on board.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Having read the clause, we see that a person would have a defence if it were proved that he had a reasonable excuse for his action. However, proposed new section 58A will criminalise the collection, making or possession of a record of information that is likely to be useful to a person committing or preparing an act of terrorism. It goes further, using “eliciting”, which means that a person will commit an offence if they try to obtain information and make no record of it. Liberty, for example, argues that that might already be covered under section 1 of the Criminal Attempts Act 1981, which criminalises acts that are more than merely preparatory to the commission of another offence. I would be grateful if the Minister could respond to that point in due course.

I would like to raise one other point. Going back to reasonable excuse, which is important, proposed new section 58A(2) says that if a person charged can prove a reasonable excuse then section 118 of the Terrorism Act 2000 applies. The use of that defence means that, if the defendant produces evidence sufficient to raise an issue, the duty is on the prosecution to prove beyond doubt that the issue exists. That appears to strengthen the defence by placing the burden on the prosecution. However, there is also a restriction to the defence of reasonable excuse—that it will not provide protection to those who act thoughtlessly or carelessly. Would a person who was duped into eliciting information by others—others with terrorist intent—be unlikely to have reasonable excuse? My fear is that that person could thereby be convicted, even if that person carelessly or thoughtlessly had no idea that information was being used with that malicious intent. Will the Minister respond to that point in due course?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I, too, want to express my concern about the clause, and to speak briefly to my amendments Nos. 235 and 236.

There is already an offence under section 58 of the Terrorism Act 2000, which is drawn in pretty broad terms. It states:

“A person commits an offence if...he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or...he possesses a document or record containing information of that kind.”

Clause 69 is not an alternative; it adds to that. My first question is whether clause 69 adds anything to the law as presently stated in section 58 of the Terrorism Act.

Tony McNulty (Labour, Harrow East)

Section 103 of the Terrorism Act 2000 explicitly refers to members of the armed forces, among others. That has since been repealed, because it was directed only at Northern Ireland. The clause simply puts the armed forces focus of section 103 into the broader section 58. That is the only reason for it.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

When the right hon. Gentleman comes to reply more fully, I would be grateful if he will expand on that. Section 58 seems to cover the substance of what we would be seeking to cover under clause 69. The extent to which clause 69 adds to the substance covered by section 58 is still not clear. That is the first point on which I would be grateful for greater clarification from the Minister.

The second point develops that made by my hon. and learned Friend the Member for Beaconsfield. It is an anxiety that I had about section 58 itself. Section 58 seems to me to be drawn in sufficiently wide terms to cover journalists and whistleblowers. If they identify any defects in our security system—for example, at an airport—they would be liable to prosecution, subject to the statutory defence, under section 58. I agree that clause 69 is more narrowly drawn, but there is a genuine anxiety that whistleblowers and journalists might find themselves facing prosecution if they have identified faults relating to members of the armed forces and then sought to publish them. The point about Jane’s Fighting Ships is rather interesting, provided that it was specific to individuals, but I can well understand that, for example, one might identify errors in the procurement department that resulted in armed servicemen serving in Afghanistan and Iraq not being provided with adequate equipment, or defects in the warning systems. If that information were to be published and personalised, I would have thought that that would run the risk—a serious risk—of courting a prosecution under clause 69.

That takes me to my next point. I do not like reverse burdens of proof, and that is covered in part by amendment No. 236. Clause 69(2) states:

“It is a defence for a person charged with an offence under this section to prove that they had reasonable excuse for their action.”

Will that impose upon a possible defendant the persuasive and legal burden, or will it be merely an evidential burden? The Minister will keep in mind that the courts have applied a variety of approaches to this. Sometimes a clause of this kind does no more than impose an evidential burden so that the defendant has to produce some evidence of reasonable excuse, and it is then for the Crown to negate the reasonable excuse. That is the evidential case.

However, there is also a class of cases—section 91 of the Medicines Act 1968 is an example—in which the reverse burden of proof, which is actually couched in almost identical terms to this, constitutes a legal or persuasive burden. In other words, the defendant has to prove on the balance of probabilities that he or she comes within the defence afforded by the section. I do not know whether what is contemplated by clause 69 is what the courts call the evidential burden, or what they call a legal and persuasive burden. It is important that the Minister give us his opinion on that matter, if only for the guidance of the courts hereafter.

My next point is whether the persuasive burden is on the prospective defendant. I want to enlarge the category of the defences to include those set out in amendment No. 236—in effect, that the defendant had no actual or constructive knowledge that the information and/or disclosure of the same was likely to be of assistance to a terrorist, or alternatively, that at the time of the alleged offence he thought that the disclosure was in the public interest.

The public interest defence that I have incorporated in the amendment is basically intended to assist whistleblowers and journalists. It is right that in certain cases, subject to the views of the jury, a defendant should be allowed to assert, “I thought that there was a public interest in disclosing this information,” and claim that he thought he was identifying serious shortcomings in the armed services, of which the public needed to be aware. That is the explicit purpose of amendment No. 236. Incidentally, I also agree with amendment No. 197, tabled by my hon. and learned Friend, which would make it absolutely plain that the Crown has to prove intent. He is absolutely right to say that that amendment would make it more difficult for the Crown. Too bad, I say. We are not in the business of making it easier for prosecution authorities.

You will remember, Mr. O’Hara, that I did not have the pleasure of attending the Committee’s first sitting when it addressed the Bill. That was because I was involved in a case relating to the Medicines Act 1968, in which it was clear that the Crown had misused its powers and there had been a gross abuse of Executive authority. I fear that precisely that sort of situation could arise in this case.

Crispin Blunt (Conservative, Reigate)

As I understand it, the way that my right hon. and learned Friend has drafted his amendment would require the potential defendant to establish all three points. I cannot imagine that that is what he is trying to do.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. Friend is right, but if I have done so, it is the result of poor drafting on my part—I am not a very good draftsman—as that was certainly not my intention. These are separate, free-standing defences. There is the general, reasonable excuse defence, and then I have tried to spell out alternative, specific free-standing defences. If I have erred, I apologise, but it was not my intention.

Tony McNulty (Labour, Harrow East)

Rather as when we last met, although I cannot remember which particular clause we were debating, we are collectively guilty of looking at the amendments to this clause, not simply in isolation from the rest of the Bill and from the Terrorism Act 2000 in its full context, but completely in isolation from due process and the rule of law in this country.

The hon. Member for Meirionnydd Nant Conwy came closest to what we should be doing by relating the clause to section 118 and all other matters. The discussion about whistleblowers and journalists is abject nonsense in any terms, unless the researcher for Jane’s then tootles off to a terrorist and gives him the elicited information. That is simply what the clause is about.

Dominic Grieve (Conservative, Beaconsfield)

It is not.

Tony McNulty (Labour, Harrow East)

It is.

Dominic Grieve (Conservative, Beaconsfield)

As worded, I do not think it is. Anybody who

“elicits or attempts to elicit information about a person who is or has been a member of Her Majesty’s Forces which is of a kind likely to be useful to a person committing or preparing an act of terrorism.”

The next paragraph follows “or”. On the face of it, there is no need to show that somebody has tootled off to talk to a proto-terrorist at all. The problem is that the offence is made out the moment that that information has been elicited or attempts have been made to elicit it.

Tony McNulty (Labour, Harrow East)

In the context of terrorism; it will be part of clause 58 of the Terrorism Act, “Collection of information”. Case law is very clear on the matter too. Incidentally, the other small point, which I do not think was the import of any of the amendments, is that this particular offence, which people recognise the propriety of in terms of what we are trying to do for our armed forces, will be on a different footing from the broader issue of collecting information more generally in the Terrorism Act 2000. We will be saying that there is a higher bar, a higher test in terms of eliciting information about our armed forces than there is—as the hon. Member for Meirionnydd Nant Conwy pointed out—in section 58 of the 2000 Act more generally in the collection of information useful for terrorists. I am pretty sure that is not the intent behind the amendment, but that will be its consequence.

David Heath (Liberal Democrat, Somerton and Frome)

I must bring the Minister back to the point that somehow one has to offer or be engaged in some sort of discourse with a terrorist for this offence to bite, and that that is shown by its context after section 58 of the Terrorism Act 2000. Is the right hon. Gentleman saying that this new clause is qualified by other clauses within the Terrorism Act? If it is not, and if it is read as it stands, that is clearly not the case. That is why the amendments, tabled by the hon. and learned Member for Beaconsfield and my hon. Friend the Member for Carshalton and Wallington, are so important.

Tony McNulty (Labour, Harrow East)

Go away and read the Bill. Section 117 says very clearly that it is for the DPP to sanction a prosecution in the context of the Terrorism Act 2000 and all of its import and contexts. Then we come to the context of section 118 that the hon. Gentleman referred to, which deals with the reverse burden of proof point and, as the hon. Gentleman implies, the evidential burden is on the prosecution. If the defence says, “I was doing it simply for this reason,” as in our law generally, it is for the prosecution to prove beyond reasonable doubt that that defence is not a reasonable excuse and therefore should be put aside. This is why I told the Committee to read this amendment in the context of both the parent Act and the law more generally.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

May I give an example with reference to the earlier mention of the likelihood of a person being convicted when he was duped? Two or three years ago, a constituent of mine, an award-winning novelist in Wales asked me how many police officers and security people there are in the House of Commons. He was writing a novel about the House. Frankly, I ducked the issue. I know that he is not a terrorist, but let us say that, unbeknown to me, he had malicious intent and I had passed information on to him. Would I be caught by the measure?

Tony McNulty (Labour, Harrow East)

No, not as I understand it, because there must be a reasonable suspicion that the information was intended to be used to assist terrorism.

David Heath (Liberal Democrat, Somerton and Frome)

Where is that in the Bill?

Tony McNulty (Labour, Harrow East)

With the greatest respect, we do not start from year zero. The law has been on the statute book since 2000, and section 58 has amassed a good deal of case law. Section 103 has been utilised rather sparingly in the context of Northern Ireland. In our business we do not present a clause and then have a paper trail the size of a telephone book just to find the propriety and the roots and the other bits that go around it. That is not how we do business. That is a simplistic approach to Committee, which ill becomes the hon. Gentleman. Our business is to look at a new clause and the amendments in the context of the wider body of law from which it comes.

To pursue the point made by the hon. Member for Meirionnydd Nant Conwy, as soon as he offers up “I had no idea what he was” as a defence, the burden of proof falls on the prosecution to challenge the excuse that is being offered with good reason. It is not a reverse burden of proof either, as the hon. Gentleman himself highlighted in relation to section 118 of the 2000 Act. Section 117 goes to the provenance of which prosecutions should be brought under that case, and it does not have the broad sweep that hon. Members suggest. In R v. K it was shown that there must be reasonable suspicion that the information was intended to be used to assist terrorism. Funnily enough, that is why that provision is in a terrorism Act. That would apply equally to new section 58A—the information must be likely to provide practical assistance to a person committing or preparing terrorism. Case law has been built up since the Act became law.

Regarding one of the other points made by the right hon. and learned Member for Sleaford and North Hykeham, “communicate” is not covered by section 58 nor is “attempt to elicit”, because the provenance of the amendment is specific to section 103 of the 2000 Act, which was subsequently repealed because of the dismantling of the security apparatus and legislation in Northern Ireland. New section 58A will cover a person trying to get information from MOD staff, not to write another little novel or to elicit where nuclear sites are—as Duncan Campbell did in the ’80s. Eliciting information useful to terrorists from MOD staff is not governed by section 58. MOD staff giving a terrorist information about the armed forces is covered by new section 58A. On the broader point, there is only an evidential burden. Crucially, if the defence raises an issue about the individual’s purpose, the prosecution must disprove that beyond reasonable doubt. It says here, in my little note, which is very kindly headed “Welsh guy”, with all due apology to—

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Probably me.

Tony McNulty (Labour, Harrow East)

I think it means you. It says, “If duped, that is a reasonable excuse”. Depending as always on the circumstances of the case, that can be proffered as a reasonable excuse. There is only an evidential burden on the defence to prove the defence. It is for the prosecution to prove that he did not have that appropriate defence. In that context, all the amendments would undermine what we seek to do with new section 58A in reinforcing section 58. I do not doubt that there might be a substantive argument about section 58 and how that is drawn, but that is not for our deliberations now. Nor do I doubt that there is an argument that section 103, which related to the armed forces in Northern Ireland only, should either not have been repealed or should have been broadened to the UK or left aside totally. In that context, amendments Nos. 197 and 44 would undermine the effectiveness, or efficacitÃ(c), of the offence provided for in clause 69. The insertion of paragraph (b) by amendment No. 236 would add nothing to the statutory defence already included in the clause in terms of legal effect or clarity and is therefore unnecessary.

A person who can show that he did not know and had no reason to know that information or the disclosure of such information was likely to be helpful to a person committing or preparing an act of terrorism would be able to prove that he had a reasonable excuse for his actions. We should remember that, as the hon. Member for Meirionnydd Nant Conwy very kindly pointed out, section 118 of the 2000 Act places the burden on the prosecution to disprove the defence beyond reasonable doubt once an issue has been raised by the defence.

The proposed insertion of paragraph (c) under amendment No. 236 is unacceptable. It would allow the person in question to assert that he believed that the information that he communicated or published was in the public interest, regardless of what it was, regardless of the damaging effects of publishing such information and regardless of how reasonable it was for him to hold that belief. The courts are best placed to assess whether the disclosure was in the overriding public interest and whether an excuse is reasonable in the circumstances of the case.

Amendment No. 198 would undermine section 58 of the 2000 Act for the same reasons. That section has been in force since 2001. Section 5 of the 2000 Act already caters for preparatory acts that are carried out with the intention of assisting another to commit terrorist acts. Section 58 of the 2000 Act and clause 69 provide for wider offences aimed at combating the activities of those whose conduct is likely to assist terrorists. They do not require the prosecution to prove an intention to assist those involved in preparing or committing an act of terrorism. I am advised that the information itself must raise a reasonable suspicion that it was intended to be used to assist in the preparation or commission of an act of terrorism and to be of a kind that is likely to provide practical assistance to terrorist organisations. As we have discussed, section 58 of the 2000 Act and the clause include statutory defences to protect those who have a reasonable excuse for their actions.

As the hon. and learned Member for Beaconsfield said at the outset, there is good reason for clause 69, and we could go through recent cases where, sadly, members of the armed forces have been targeted. Other hon. Members will know that recent history is littered with such actions. On the basis of the operation of section 103 of the 2000 Act in Northern Ireland, it is perfectly reasonable that this provision is established as a UK-wide power because of the nature of the threat that we face. As we have already firmly established in this Committee, Northern Ireland is part of the UK and it would apply to Northern Ireland as well. Recent activities have shown that the power is still required in that context.

I resist the amendments and urge the Committee to support the clause.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has been remarkably emollient during the Bill’s passage, which is uncharacteristic, but it was noticeable this morning that he has rather ceased to be so. I do not know whether that is because he has not had his breakfast. When the emollience goes, one is always left wondering whether it is because he feels justifiably outraged at the slurs against the Government in relation to the drafting of the clause, or whether it is because attack is the only form of defence open to him.

However, the Minister has made some important points, the most important of which was the clarification of the requirement of the prosecution to disprove the defence once raised beyond reasonable doubt. I will go away and reflect on whether there is any better way of approaching the wording for this offence. As I said in my opening remarks, I entirely accept that such an offence is almost certainly required. It may well be, as my right hon. and learned Friend the Member for Sleaford and North Hykeham mentioned to me, that any necessary corrections should be made not to the Bill, but to the original section of the Terrorism Act 2000. For those reasons, I beg to ask leave to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I agree with what my hon. and learned Friend has just said. The Minister is quite right when he draws attention to section 118 of the 2000 Act, which makes it plain that the burden is evidential and not persuasive or legal, and that is very helpful. I accept that his criticism of paragraph (c) of my amendment No. 236 is well founded; belief by itself should not constitute a reasonable excuse. On the other hand, publication in the public interest should constitute a reasonable excuse. I am referring here to whistleblowers. The proper way forward, which was outlined by my hon. and learned Friend, is to consider amending section 58 of the 2000 Act. As the Bill amends that Act in many respects, it would be within the scope of a long title to make such an amendment. The best way for people such as myself to proceed is to consider whether we wish to amend section 58 of the 2000 Act on Report. At present, I am minded to seek to do so.

Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 164, in page 50, line 6, at end insert—

‘( ) Schedule 8A to this Act contains supplementary provisions relating to the offence under this section.’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following: Government amendment No. 165.

Government new schedule 3—Offences relating to information about members of armed forces: supplementary provisions.

Tony McNulty (Labour, Harrow East)

I apologise if I have lost my emollience. It is absolutely to do with not having had breakfast, not enough cigarettes and the fact that I had a bloody awful journey getting here. I did not think that I would get here by 9 o’clock at all because of the traffic. If there is a remote bit of rain in this country, the whole world stands still. However, I should not take that out on the Committee, so I apologise to everyone, including the Welsh guy. [Interruption.] It is not about—

David Heath (Liberal Democrat, Somerton and Frome)

Boris.

Edward O'Hara (Labour, Knowsley South)

Order. Please allow the Minister to be emollient.

Tony McNulty (Labour, Harrow East)

With respect, even I would not be so churlish as to blame the hon. Member for Henley (Mr. Johnson) who has been in post for about 11 days—not yet, anyway.

Dominic Grieve (Conservative, Beaconsfield)

Give him another couple of days.

Tony McNulty (Labour, Harrow East)

Another couple of weeks. I agree that although the Committee has dealt with a range of contentious matters, it has done so in very good spirits. I apologise most sincerely and I hope to have my breakfast soon.

Proposed new schedule 8A ensures that the proposed provisions in clause 69, which would insert the additional offence that we have been talking about, are consistent—this is not offered as a red rag to a bull to any Member—with the UK’s commitment under the e-commerce directive 2000/31/EC with regard to services provided by the internet industry. It is a legal requirement and not a change of policy. The schedule ensures that the providers’ information society services that are established in the UK are covered by the offence, even when they are operating in other European economic areas.

Paragraphs 4 to 6 of the new schedule provide limitations of liability for internet intermediaries, and amendments Nos. 164 and 165 and new schedule 3 simply reflect that as a matter of legal provision given our agreement with the directive. It is no more suspicious than that and I commend it to the Committee.

Clause 70

Dominic Grieve (Conservative, Beaconsfield)

I would be immensely grateful if the Minister would explain why the amendment in clause 70 is being sought. It looks completely innocuous—indeed in many ways it probably is—but equally I find it difficult to see how it makes any difference at all.

Tony McNulty (Labour, Harrow East)

Clause 70 is innocuous. It clarifies part 3 of the Terrorism Act 2000, which deals with terrorist property. Section 19 of the 2000 Act makes it an offence for an individual to fail to inform the police if they believe or suspect during the course of their work that a person has committed a terrorist finance offence—the offences in sections 15 to 18 of the Terrorism Act 2000. Our proposal makes it clear that the offence in section 19 applies to all people in any form of employment in its widest sense, including unpaid employment. The duty to inform the police will therefore apply to contractors, office holders such as trustees of a charity, individuals on a full work experience programme or training and people carrying out voluntary work. In so far as this amendment extends the definition of employment, clause 70(4) ensures that it will have no retrospective effect. There may be a concern about the inclusion of those undertaking voluntary work. However, the Committee will want to note that the Charity Commission considers that its members are already subject to section 19, and the measure simply puts that beyond doubt.

Other provisions in part 3 of the 2000 Act refer to the terms “employment” and “employer” and the new definition applies to all those. For example, section 20 allows for disclosure of a suspicion of a terrorist finance offence to be made to a constable or to an employer regardless of any restriction of the disclosure of information, such as the duty of confidentiality. “Employer” will now have the wider meaning given by new section 22A. The provision is fairly innocuous, and I commend it to the Committee.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My recent reading of the Terrorism Act 2000 made it plain that the measure is subject to an overriding provision that the offences were not committed by lawyers where the information was received in their confidential communication with their clients. It would be helpful if the Minister were to restate that, because he failed to mention that in his general statement of policy.

Tony McNulty (Labour, Harrow East)

I think that that is certainly the case, and I am happy to confirm it. I detected the same import in my reading of the provision.

David Heath (Liberal Democrat, Somerton and Frome)

I have a small point that I hope the Minister can help me with. Will this now apply to ministers of religion, whether employed or not employed?

Tony McNulty (Labour, Harrow East)

That is an interesting point. I think that it does in the sense that they remain employees. The amendment provides full clarity on that point.

Clause 72

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 229, in clause 72, page 52, line 22, leave out subsection (2).

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment No. 230, in clause 74, page 53, line 15, leave out subsection (4).

Dominic Grieve (Conservative, Beaconsfield)

In clauses 72 and 74, there are amendments to the Prevention of Terrorism Act 2005. It is not always easy to understand the reasoning behind the amendments themselves, but I am prepared to accept that the amendments may be necessary.

In the case of clause 72 on the meaning of involvement in terrorism-related activity, the words

“to be involved in terrorism-related activity”

are substituted by

“the individual concerned to be involved in conduct falling within paragraphs (a) to (c)”.

So, instead of relying of the definition of the words “terrorism-related activity”, in future it will rely upon the individual definitions contained in that part of the 2005 Act. I do not have a big issue with that, but then one sees the startling statement in subsection (2) that

“This amendment shall be deemed always to have had effect.”

This is a retrospective amendment to be carried back, presumably to the time when the Prevention of Terrorism Act 2005 was first enacted, which means that a person could not subsequently argue that because it was being suggested that the offence that they might have committed came in prior to this Act, they were not involved in a terrorism-related activity, even though it might have fallen within paragraphs (a) to (c).

The Minister will not be surprised to learn that I do not like that amendment. It is our task as parliamentarians to draft statute, and people are entitled to rely upon statute for their protection. When Sir Thomas More was confronted with the Act of Supremacy and with having to take the oath at Lambeth palace, he asked for a copy of the statute from which the oath had been drafted and pointed out to his interlocutors that he considered that the oath did not follow the terms of the statute. Much good did it do him, mind you, but it is an early example of the proper reliance that people in this country have been entitled to place upon the words that Parliament enacts.

We live in a society where you are entitled to do what you like unless Parliament prohibits it. This form of retrospective removal of a possible right that could be invoked by a defendant does not commend itself to me, and I need a lot of persuasion from the Minister as to why it should be included. It applies equally to the question of the application for anonymity for a controlled person where, again in clause 74, it says these amendments shall be deemed always to have had effect.

Will the Minister explain the scope of both the amendments of the Terrorism Act and also explain why, quite exceptionally it seems, that it is necessary that these amendments should be deemed always to have had effect?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I rise to support what my hon. and learned Friend has said. It is very important that this House, and thus this Committee, should not pass retrospective legislation. As I understand the intention of clause 72, it is either to define more clearly or to enlarge the class of activity that might trigger an application for control orders. Control orders are essentially penal in their consequences, although they are not treated as such by the Government.

I agree with my hon. and learned Friend that people should not be subjected to restrictions on their liberty as a result of retrospective legislation. If there is no powerful justification for what is being done, I hope that we will divide the Committee on this subject.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I have studied the notes on clauses, which do not refer to the provision. If it is that important, perhaps the Minister will explain why we need to make the provision retrospective.

Tony McNulty (Labour, Harrow East)

I understand perfectly the concerns, but I hope that I can allay them, because the measure is not meant to enlarge anything—it is meant to do the reverse. I understand the objections to retrospectivity as well. I am grateful to the hon. and learned Member for Beaconsfield for invoking one of my heroes, although I am not going to go down the road of the life and times of Thomas More.

The amendments seek to delete a similar provision contained in the two different clauses 72 and 74. It may help if I talk about the background. The purpose of clause 72 is to remove two potential ambiguities in the definition of terrorism-related activity in the Prevention of Terrorism Act. Section 1(9)(d) of the Act currently includes the phrase

“conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity.”

That could be read as including individuals who unknowingly provide support or assistance to those involved in terrorism-related activity. In other words, the definition could currently include an individual A supporting an individual B whom the Secretary of State knows or believes is a terrorist, even though A does not know or believe that B is a terrorist. That is the thrust of the definition as currently drawn, which was never the intention.

I assure the Committee that the current provision has never been interpreted in that way, but none the less the ambiguity is there. The clause therefore amends the Prevention of Terrorism Act 2005 to ensure that the definition includes only those who provide support or assistance to individuals who are known or believed by the individual concerned to be involved in terrorism-related activity. Rather than enlarge, it narrows the focus of the import of the original definition.

Dominic Grieve (Conservative, Beaconsfield)

I am delighted to learn that, but in the circumstances, and granted that the Minister has said that the power has not caused any problems in the past, why are we putting in a retrospective clause for its operation? I suggest that the measure is not necessary, and on the whole I would prefer not to see it.

Tony McNulty (Labour, Harrow East)

On balance, my advice is that it probably is necessary. I take the hon. and learned Gentleman’s points, as I said earlier, about the construct of the thing. The current definition also includes a potential circularity. Under the current definition, individual X could have a control order imposed on him because he was supporting individual Y, who in turn was known or believed to be supporting an individual Z who was involved in terrorism-related activity. There could be any number of links in this chain, all of whom could, in theory, have a control order imposed on them. The definition of those captured by the Prevention of Terrorism Act 2005 is not intended to be that wide and has never been used in that way, but the ambiguity is still there. Clauses 72 and 74 simply remove that circularity, ensuring that only those who provide support or assistance to someone directly involved in terrorism-related activity are included in the definition of terrorism-related activity. In the example given, only Y would be caught by the revised definition, not X.

Those paragraphs may be otiose and over-cautious, but my advice, which has persuaded me, is that on balance they are necessary. If we accept that—I know that it is terribly offensive—given that narrowing of the definition, notwithstanding the fact that it has never been interpreted in that way, it would be foolish and illogical not to return retrospectively to 2005 in terms of narrowing the definition. I know that that sounds terribly complicated, but I am assured that it is necessary and worthwhile.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Obviously, we have to be careful with retrospection, but I have found one sentence in the explanatory notes that sums up the situation:

“This amendment will be deemed always to have had effect, to reflect the original policy intention and current practice.”

That is not very persuasive—those are fairly empty words, to be honest. I am sure that if the Minister were on the Opposition Benches, he would feel equally concerned about retrospection in this context. He says that on the balance of probability it is necessary, but it is a rather huge step, is it not?

Tony McNulty (Labour, Harrow East)

I do not want the Committee to think that I have anything but the same aversion to retrospection in the law as the Committee does. I am not diminishing the importance of not being retrospective in legal practice. If, however, clauses 72 and 74 were not included simply because over the past two or three years they have not been interpreted in the way in which I have described, the provision might be interpreted with a definition that is too broad and that encompasses people in the net in a way in which the principal policy did not seek to do in the first place. Over-cautious or otherwise, it would be illogical not to amend the legislation and introduce retrospection.

If we were to try to achieve the same thing by another route—through the code of practice or whatever else—we could say, “From now on, this is what the Government clearly meant; we are very grateful that people have not interpreted the definition in the potentially wider context that they perfectly fairly could have done and from now on we’ll make sure that they won’t” If we were to do that, however, there would still be a chance—it would be remote—that the activities of someone who is up for a control order between 2000 and 2008 would come under the current broader definition of the Prevention of Terrorism Act 2005 as the grounds for the control order. Under clauses 72 and 74, however, the same person with the same network and the same behaviour would quite rightly be outside the net in terms of control orders, which was the original intention. On balance, I do not think that the change is over cautious. I appreciate that its presentation is terribly clumsy, as is the language, but on balance it is the right and necessary thing to do.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

There are two issues here. First, there is the principle. I am very much against retrospective legislation. I do not like seeing it in statute because it can be invoked later as a precedent. The basic principle against retrospectivity is a very important one to which we need to cling. The Minister has made a perfectly decent argument, but it has one fatal flaw. Applications for control orders—this is the triggering mechanism that we are debating—are within the exclusive control of the Executive. If the Executive, through the right hon. Gentleman, says that the interpretation he has given is correct and that they will not be seeking a control order in the future in the widest sense, we have safeguarded the situation. That is partly because an application will not be made. If it was made it would be contrary to the statement of Government policy and I should have thought that the courts would decline to support the making of the control order.

When one weighs up the undesirability of the precedent and the degree of risk that has been met by the Minister’s statement, I should have thought that the argument rested against putting this in the Bill. I suggest that the right hon. Gentleman reflect on the matter and that we do not press it to a Division at this stage. Subsequently, he might care to remove the clause but make a firm statement of Government policy, which would be binding on the Government in future matters.

Tony McNulty (Labour, Harrow East)

I am grateful that the right hon. and learned Gentleman suggests that he will not press the amendment. I will happily take this away to reflect on it. I already have done, by the by. If this can be achieved by a firm statement of Government policy, I am happy to look at that and report back to the Committee and the House on Report, but I shall retain the option to confirm clauses 72 and 74.

Dominic Grieve (Conservative, Beaconsfield)

I listened to what my right hon. and learned Friend the Member for Sleaford and North Hykeham said and there may be good grounds for withdrawing the amendments at this stage. However, the matter leaves me profoundly uneasy. I do not like the principle. The logic of the Government’s position is not entirely clear to me. I appreciate that the desire is not to widen the scope of control orders but to narrow them. In short, the Government have concluded that the current architecture of the control order system might lead to a result that the Government did not want, in that a control order could be granted in circumstances that they would regard as not being justified. Therefore they want to close that down and to do so in a way that deems that the closure dates back to the original control order architecture of 2005.

On the face of it, the Government’s justification for this is that it is entirely a matter that will favour the person who might be subject to a control order. There may be an alternative way of looking at this, although the Minister may wish to reassure me that I am wrong. Control orders, by their very nature, walk a delicate tightrope within the limits of acceptability under the European convention on human rights. If in the original drafting in 2005, the scope of the possible application of the power was placed too wide, it could be argued that that might be a ground on which a person made subject to a control order in the future might say that the scope of the entire control order system could not be upheld because it was too widely drawn and that that was an example of it. I do not know. These are recondite legal arguments, but I can see how it might happen. I cannot help but think that that is the Government’s more likely fear, than that they would try to seek a power that they are not comfortable with within the scope of the 2005 orders.

David Heath (Liberal Democrat, Somerton and Frome)

What the hon. and learned Gentleman says perfectly illustrates the fact that it is time that we revisited the control order regime to see how it could be improved and how some of its defects, which have come to light through legal judgments and elsewhere, could be addressed. I do not believe that this is the right time to do so and I look forward to this afternoon’s session, although we cannot possibly do the matter justice in the context of the amendment tabled for that purpose this afternoon, and it is entirely probable that we will not wish to enter into a debate on it. Does the hon. and learned Gentleman agree that it is time that we revisited the Prevention of Terrorism Act 2005 and looked at the matter in the round?

Dominic Grieve (Conservative, Beaconsfield)

I do agree with him. He will recollect that my party has supported renewal of the control orders on a number of occasions, but that we indicated on the last occasion that we hoped that this Bill might provide an opportunity for us to look at the matter again in some detail. I fear that that will not happen, partly because the Government themselves have not come forward with a series of amendments to trigger it and because the necessities of time make it unlikely that we can consider it in proper detail this afternoon.

I am mindful of the hon. Gentleman’s amendments. I saw that he had tabled them, and if he had not, I probably would have tabled some of my own. I doubt that we will have a better opportunity on Report, but this little matter of a flaw in the control order mechanisms that the Government have picked up on classically illustrates why an overview of the matter may be desirable—not in the sense of getting rid of control orders altogether, because we have always accepted that they may be an unpleasant necessity. We have held that opinion for some time, though we have been unhappy about them, as I am sure the Government are.

The basic issue is whether we should press the matter to a vote at this stage. I am slightly swayed by the opinion of my right hon. and learned Friend and I will seek to withdraw the amendment, but I am unhappy about the principle of retrospectivity and would be minded to return to it on Report if the Government cannot come up with a better formula for dealing with it. The Minister might like to note what I have said and, with regard to my anxiety about this being a possible loophole that a defendant could properly exploit to attack the principle of control orders, reassure me that that is not the Government’s main motivation, rather than clearing up an area where the Government think that they might use excessive powers, although of course in practice I am sure that they have no intention of doing so. Subject to that, I beg to ask leave to withdraw the amendment.

Clause 77

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 199, in page 55, line 7, after second ‘the’ insert ‘national security of the’.

This is really an issue of clarification. The clause applies where

“provision of extra police services at a gas facility in England or Wales is necessary because of a risk of loss of or disruption to the supply of gas connected with it, and...that the loss or disruption would have a serious impact on the United Kingdom or any part of it.”

The amendment seeks to emphasise the point that this is necessary for the purposes of the prevention of terrorism. I should be grateful if the Minister would respond.

Tony McNulty (Labour, Harrow East)

I understand the broad thrust of the amendment, and it is a difficult area in the sense that we seek to protect these key facilities and afford in statute an ability for the operators to recover their costs. We have already done this on a voluntary basis; this simply puts it on a statutory basis. Given the importance of these facilities for the economy and overall life of the UK, we want that done all the time, 24/7, on a regular basis. Yes, crucially, that will seek to prevent terrorist incursion to disrupt those facilities, but it would just confuse things if we simply included the reference to the national security of the UK, because we want protection all the time; yes, principally protection from terrorism, but also for the broader interest, economic and otherwise, of the facility.

I understand where the hon. Member for Newark is coming from in terms of trying to strengthen the anti-terrorist dimension of the clause, but the amendment will not achieve that. In fact, it will probably lessen and dilute the import of what we are trying to do to protect these facilities. The point where the national security elements of such key facilities stops, and their broader contribution to economic life begins is, by definition, incredibly blurred. I sympathise with his reasons for the amendment, but I do not think it works. The clause as written achieves exactly what he seeks to achieve, and I would ask that the amendment be withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

This was a probing amendment, so I am happy to withdraw it. We will come on to a couple of other areas where it would be quite useful if the Minister could tell us a little more about the discussions that have taken place between the Government and those within the industry who will have to bear these particular costs—which could be quite onerous—and whether they are in fact happy and content with the measures provided in the Bill. I beg to ask leave to withdraw the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 45, in page 55, line 17, after ‘State’, insert ‘or a police authority’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following amendments: No. 200, in page 55, line 17, leave out ‘in or around’ and insert ‘within a one mile radius of’.

No. 201, in clause 78, page 56, line 2, leave out ‘in or around’ and insert

‘within a one mile radius of’.

David Heath (Liberal Democrat, Somerton and Frome)

Before I address the amendment, it might be helpful to seek a definitional clarification, which is: what is meant by “gas”? It is not defined in the Bill. I attempted to table a probing amendment to seek to clarify that. I assume we are talking about hydrocarbons—gas intended for fuel use—but “gas” is a rather broad term, and I am quite surprised that it is not defined in the Bill. Perhaps there is a statutory meaning of “gas” which already provides this; if so, it surprises me.

Edward O'Hara (Labour, Knowsley South)

Order. I have been very generous, but the hon. Gentleman is speaking to amendments that have not been selected.

David Heath (Liberal Democrat, Somerton and Frome)

I apologise, Mr. O’Hara. Perhaps I went on at too great a length. It was a point that I would otherwise have raised in the clause stand part debate. I was trying to avoid a further debate at that point.

Amendment No. 45 introduces the words “or a police authority”. This may be a matter on which the Minister can very quickly reassure me. It is clear that when extra police services are provided for the security of gas facilities, they can come from two sources. They can come from the Ministry of Defence police, in which case no problem arises, or they can be provided under section 25(1) of the Police Act 1996, entitled “Provision of special services”, in which case they will of course be drawn from territorial police forces. All I am trying to ensure—[Interruption.]The Ministersays that I am wrong on that fact. If that is the case, I am very happy to take an intervention.

Tony McNulty (Labour, Harrow East)

I am mindful of your exhortations, Mr. O’Hara, and will wait until I respond to the debate.

David Heath (Liberal Democrat, Somerton and Frome)

That is the worst of all worlds: an intervention that did not give me the answer. The point is that if police are provided by a territorial force, it is appropriate that the police authority that has the responsibility for funding that force has the recompense from this levy back to their resources. I know when I was chairman of a police authority, there was very great resentment when the resources for policing national events or events with national security implications had to come from already overstretched police authority budgets. The end was willed by the Government, but not the means to provide.

Tony McNulty (Labour, Harrow East)

The Bill makes provision for either the MOD police or territorial police to provide that policing. Under current arrangements, in many of these cases, there is a central national pot that funds dedicated security posts. By and large, that money is from the centre, given that these are national provisions. I do take the point about abstraction from territorial forces, but that has not been the case thus far and is unlikely to be in the future.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful for that, which means I can abbreviate my further points. I would like to be satisfied that that is the case. I will give a direct example: the policing of Bristol airport at times of high terrorist activity was a significant drain on the Avon and Somerset constabulary. It meant abstraction from our local constabularies: police officers who were community officers in my area found themselves instead toting machine guns at Bristol airport. It does seem appropriate that, where local police authorities are having to carry the burden of a national security responsibility, they are properly recompensed for it. I hope and think the Minister is assuring me that that is the case. If he can give that assurance, I will be satisfied.

Dominic Grieve (Conservative, Beaconsfield)

I join in the comments made by the hon. Member for Somerton and Frome. In addition, there are a couple of amendments that we have tabled that are to be considered now. They are really definitional, as to what constitutes “in and around” a facility and whether that should be geographically defined. My question to the Minister is whether what constitutes the provision of extra police services in or around a facility will be a source of dispute if no further geographical definition is given. The amendments propose 1 mile; they are probing amendments and again I come back to the nature of the discussions that have taken place between the Government and the industry itself and the providers, in terms of resolving these matters. Will there be arguments over the interpretation of the text of the statute?

Tony McNulty (Labour, Harrow East)

I certainly can assure the hon. Member for Somerton and Frome that is not intended for this provision either to come out or be abstracted from territorial forces that just happen to have such a facility in their area. It is above and beyond that.

I will not quote the site but one example now has voluntarily 24 hours a day, seven days a week armed response coverage by the MOD police. Prior to them taking over the role, a small team from the territorial force involved, fully funded from the dedicated security post central pot, did that in its stead. We are trying to replicate that because I do take the point about abstraction.

Without incurring your wrath, Mr. O’Hara, the points about airports are entirely separate and different. The designated airports, that is the ex-BAA airports, do need to come to some arrangement with the local police—Heathrow, Gatwick and so on. The non-designated invariably do not or are always a matter of dispute, rather like Bristol. So the hon. Gentleman will give two cheers at least for the announcement among others yesterday of a transport security Bill, which is designed to implement that aspect of Stephen Boys Smith’s report that tries to restore the balance between that crucial infrastructure—local airports—and the burden on local police, simply because it happens to be in their area. I digress, for which I apologise.

While I am on my feet—because I do not think there will be a need for a clause stand part—if the hon. Gentleman turned the page gently to clause 81(4) he would see that all expressions used in the sections are defined in part 1 of the Gas Act 1986. That covers every aspect of what he referred to earlier in terms of definition, narrowly defined, too, by the reference in the Gas and Electricity Markets Authority, which is the interplay between those, and says what we want.

Edward O'Hara (Labour, Knowsley South)

Order. That is precisely why the amendments were not selected.

Tony McNulty (Labour, Harrow East)

Thank you, Mr. O’Hara, for that admonition for someone else through me.

I am not inclined to accept the point about geography, not least because in our discussions with Ofgem, the industry and the police, it is seen as an operational matter. These are distinct and very different facilities. In one case, to draw a half-mile radius might be more than sufficient to encompass all the security and policing dimensions but, given their nature, others might be far broader than that.

The broad intention would be—largely informally and voluntarily—to have that drawn up and agreed between the parties concerned. By their nature, some of these sites are very close to coastal areas and rely strongly on the road network and it is for the chief constable or the principals concerned to determine where the security and policing impact in terms terrorism or continued utilisation of those sites should be drawn. On balance, while 1 km or 1 mile might be sufficient in many areas, I do not want to restrict their hands in that context. There can be broad agreement by the parties concerned as to what the necessary curtilage around one of these sensitive sites would be.

This seeks to put in the Bill a statutory provision that is already carried out on some sites on a voluntary basis. Hon. Members will know that these are very important sites and we think that this is the way not to replicate the airport position that imposes an undue burden on the local constabulary simply because of the accidental geographical location of such sensitive sites. I hope that the amendment will be withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

That was an entirely satisfactory response. I beg to ask leave to withdraw the amendment.

Tony McNulty (Labour, Harrow East)

On a point of order, Mr. O’Hara. It is more a point of information. Members of the Committee will see that I have tabled a letter to you and to Mr. Bercow, your co-Chairman. I am glad to see that the hon. Member for Somerton and Frome has a copy, because, as I promised, it refers specifically to “noxious things”. There is also a reference to jurisdiction and the retrospective nature. But I draw the Committee’s attention to the comments on jurisdiction in relation to Northern Ireland: there is a remote possibility that such a transfer of jurisdiction could include the Diplock provisions. I do not want that to be the case, and nor does the Committee. I therefore draw the Committee’s attention to the part of the letter that says that I shall table an amendment on Report to ensure that that potential, however remote, does not occur in the context of the relevant clauses. I hope that that is helpful to the Committee.

Edward O'Hara (Labour, Knowsley South)

I shall treat that as a request to make a statement for the information of the Committee.

David Heath (Liberal Democrat, Somerton and Frome)

Further to that point of order, Mr. O’Hara. The Minister’s statement was extremely helpful. It is essential that we have sufficient time on Report to cover this now expansive range of issues. If there is any attempt to truncate the time available on Report, we will be in the same situation as we were with proceedings on the Criminal Justice and Immigration Act 2008.

Edward O'Hara (Labour, Knowsley South)

We must now return to our business.

Clause 79

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 202, in clause 79, page 56, line 19, leave out ‘negative resolution procedure’ and insert ‘affirmative procedure’.

We continue our consideration of gas transporters and utilities. The amendment raises the question of whether the designation of

“a person who is the holder of a licence”

as a “designated gas transporter” should be done by the affirmative or negative procedure. There are some serious financial implications to being so designated. I hope that we do not end up with someone challenging the designation and applying for judicial review. The provision might have serious financial implications for companies; I therefore believe that it ought to be given proper scrutiny by Parliament.

David Heath (Liberal Democrat, Somerton and Frome)

I tend to agree with the hon. and learned Gentleman. If anyone had any doubt about the deficiencies of the negative procedure, they would only have to have been at business questions this morning. My hon. Friend the Member for North Southwark and Bermondsey (Simon Hughes) pointed out how extraordinary it is that orders can be made that are subject to that procedure, and despite there being a prayer against such orders, they can come into effect and be in effect for some time prior to any debate taking place in the House. On Tuesday evening, a Minister agreed that an order was deficient and offered to come back with a new one, despite the fact that it had been in place for some time. Such procedural matters are not for the Committee, but they nevertheless need to be addressed in the near future.

Dominic Grieve (Conservative, Beaconsfield)

When I was a member of the Joint Committee on Statutory Instruments, I learned that although the Committee can consider an instrument and regard it as defective, it does not prevent the Government from going ahead and implementing it under the negative procedure.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Gentleman is absolutely right. These are not matters that we can consider now, but he underlines the point that the negative procedure is not satisfactory for making rules and regulations that could materially affect the interests of an individual or a company.

Tony McNulty (Labour, Harrow East)

It is an interesting debate, and one for which I have some degree of sympathy. Any number of times on Committee I have flipped from the negative to the affirmative in the interests of scrutiny, but I am not going to do so on this one. The matters concerned are of such importance that the sooner, for example, the police are deployed to a particular location, the better. The negative procedure approval mechanism is appropriate in this case. However, I do have a lot of sympathy for what has been said.

I never had the dubious pleasure of being on the Joint Committee on Statutory Instruments, but I am sure that it is very interesting. We have had some fun quite recently with a statutory instrument that it sent back about 10 times as deficient, and we did not lay it until we got it in order for the JCSI—that is the Home Office being cutting-edge as usual in terms of the primacy of parliamentary scrutiny.

On the substance of the amendment, notwithstanding the importance of the potential impact on a designated individual, the negative procedure is appropriate. While the Under-Secretary of State for the Home Department, my hon. Friend the Member for Gedling and I have anything to do with it, we will deal with the matter when and if such an order is prayed against. For all the reasons outlined, I would rather resist the amendment and stick with the negative procedure in this case, although I have some sympathy with the broader ideals.

Dominic Grieve (Conservative, Beaconsfield)

I will not press this matter to the vote. I suppose that if we ever get a situation in which the Secretary of State makes a designation, it is challenged by the gas transporter and the issue subsequently gets raised on the Floor of the House, I shall say to the Minister, “I told you so.” Subject to that, I beg to ask leave to withdraw the amendment.

Clause 80

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 203, in clause 80, page 56, leave out lines 38 to 40.

Edward O'Hara (Labour, Knowsley South)

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

No. 204, in clause 80, page 57, line 1, leave out paragraph (a).

Dominic Grieve (Conservative, Beaconsfield)

These are more in the nature of probing amendments. I do not find the implications of the clause particularly easy to follow. Will the Minister explain how the system will treat the payment or costs, and how he will be able to determine or designate them?

Tony McNulty (Labour, Harrow East)

I am very happy to do that and will, if I may, treat this as a clause stand part debate as well, effectively.

Clause 80 provides the means for a designated gas transporter to recover any payment or cost that he has incurred with respect to the provision of extra policing at gas facilities. A designated gas transporter will be able to recover any payments he has made or costs that he has incurred from consumers via the regulatory arrangements in place for the term of the gas transporter’s transmission charges. We wish to ensure that the recovery of any payments made or costs incurred by a transporter is without detriment to the transporter’s finances and is not at risk of a future change of view as to how those payments or costs are to be treated by the industry regulator.

In crafting the recovery mechanism, we have provided that the mechanism applies despite anything in the gas transporter’s licence, issued under section 7 of the Gas Act 1986, that would prevent the transporter from recovering such payments or costs.

Amendment No. 203 would remove the provision in subsection (3) which disapplies any licence condition that would hinder or obstruct the recovery of payment or costs made or incurred by the gas transporter. In addition, our consultations with the industry show that they desire certainty—quite naturally—and have agreed to this recovery mechanism on the assurance that there would be no obstacles to them being able to get reimbursement of the policing costs placed on them by the Secretary of State. As a result, removal of the provision could seriously impede the ability of the Secretary of State to recover the costs of extra policing.

Amendment No. 204 appears to attempt to restrict the Secretary of State’s means to implement cost recovery for police deployment. To facilitate the recovery of payments made or charges incurred by the gas transporter, subsection (4) of clause 80 provides a means for the Secretary of State to direct the industry regulator to allow the payments made and costs incurred by the gas transporter to be taken into account in determining the transporter’s charges, either in determining its current year charges or by allowing the designated transporter to take the costs into account as an allowable regulatory cost over an agreed longer period.

In short, the provision allows the Secretary of State to direct the regulator to ensure that the designated gas transporter is able to recover its costs for policing. The amendment removes the ability of the Secretary of State to direct the regulator to treat the costs of the designated gas transporter in a particular way—for example, as if they were operating expenditure for the purposes of the regular price control mechanism. That would negate the proposed recovery mechanisms of clauses 79 to 82, so I would ask that the amendment be withdrawn.

The difficulty is imposing a recovery mechanism on an industry that, quite rightly, already has a rather complex regulatory framework under Ofgem. I apologise for the clumsiness of the architecture, but we are trying to deal with existing law, the regulatory framework and the new elements, and that explains the complexity. In that context, I would ask that the amendment be withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has done a good job of explaining what was previously somewhat opaque, and I am most grateful to him. I beg to ask to ask leave to withdraw the amendment.

None

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 205, page 57, line 22, leave out ‘28 days’ and insert ‘6 months’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment No. 206, page 57, line 26, leave out subsection (3).

Dominic Grieve (Conservative, Beaconsfield)

I sense the desire of the Committee to make progress. Clause 81 states that

“the Secretary of State is not required...to take into account representations made after the end of the period of 28 days beginning with the day on which the person making the representations was consulted”.

The first question is: is that long enough? The amendment we suggest is to substitute six months. On the second matter, we considered whether we should leave out subsection (3) simply because I would like the Minister to tell me what subsection (3) actually means.

Tony McNulty (Labour, Harrow East)

Clause 81 places on the Secretary of State the statutory obligation to consult both the regulator—Ofgem—and the designated gas transporter before requiring the payment of any costs under clauses 77 or 78. In so consulting, the Secretary of State is not required by subsection (2)(a) of this clause to take into account, as the hon. and learned Gentleman says, any representations made after 28 days. In effect, this provision sets a 28-day cut-off date for representations to the Secretary of State, so that discussions of the details of the cost recovery mechanism can proceed quickly—which, I think, is in everybody’s interests—based on the issues raised by the affected main parties, namely the transporter and the regulator, during the consultation period. The hon. and learned Gentleman asked quite fairly whether that was enough: in our view, the answer is yes.

Amendment No. 206 seeks to remove the relevant subsection entirely. That would create a conflict between the principal objective and general duties of the Secretary of State and the authority in this area, and the exercise of the functions under clauses 77 to 81 of the Bill. The deletion of the subsection might prevent the Secretary of State and the industry regulator from using the powers under these provisions. The subsection allows the regulator to permit the cost of recovery arrangement for the specific purpose, without being in breach of its own obligations. As with the complexities we talked of earlier, we now have not only the law governing gas regulators but the provisions in this Bill; not only the regulatory framework that the designated transporter operates on, but the law and the statutory obligations that the regulator has. Despite its complexities, the provision is intended to afford the regulator the right to disapply its own obligations in the course of allowing the designated transporter to recover its policing costs. That sounded complex even when I said it, and the drafting of it is equally complex. I apologise for that, but it needs to be that way to allow choreography between the position and obligations of the Secretary of State and the regulator, and to allow their relationship with the designated transporter.

Dominic Grieve (Conservative, Beaconsfield)

I am most grateful to the Minister for his answers on amendment No. 206. To return to amendment No. 205, has he consulted the industry about whether 28 days is sufficient?

Tony McNulty (Labour, Harrow East)

As I understand it, we have certainly consulted about the overall architecture. I am not entirely sure whether we have consulted specifically on 28 days, but I shall provide the hon. and learned Gentleman with the answer before Report. As I have indicated, we have certainly consulted on the broad thrust of how the whole thing will work. I ask that the amendment be withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his replies on both matters. I look forward to hearing from him about the consultation period and to hearing his explanations of the operation of various sections of the Gas Act 1986. I beg to ask leave to withdraw the amendment.

Schedule 6

Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 77, in schedule 6, page 82, line 26, at end insert—

‘Terrorism Act 2000 (c. 11)

In Schedule 8, in paragraph 29(4)(a) and (c), the words “after consulting the Lord Chancellor”.’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss Government new clause 4—Pre-charge detention: minor amendments.

Tony McNulty (Labour, Harrow East)

Although amendment No. 77 is the lead amendment, it is simply a consequential amendment, giving effect to new clause 4, which rectifies an error in schedule 8 to the Terrorism Act 2000. Paragraph 9 of that schedule refers to

“the consequence specified in paragraph 8(5)(c).”

However—I am surprised that the Liberal Democrats have not noticed this, as they are usually good at such things—there is no paragraph 8(5)(c). It is a little over the top, since that paragraph was substituted by section 456 and paragraph 39(1) of schedule 11 to the Proceeds of Crime Act 2002. The purpose of the amendment is to rectify that appalling error, which was caused by the 2002 Act failing to make the necessary consequential amendment. That horrified me, as I am sure that it horrifies everybody else.

Proposed subsection (2) of new clause 4 is more substantive. Schedule 1 to the Bill amends the 2000 Act to provide for the new reserve power in relation to pre-charge detention in terrorism cases. The new provisions will require any application further to extend the period of pre-charge detention to be made to a senior judge. For England and Wales, that is defined as a High Court judge or a circuit judge designated by the Lord Chief Justice. For Northern Ireland, it is a High Court or county court judge designated by the Lord Chief Justice of Northern Ireland. That designation is because when we have discussed terrorism legislation and considered judicial oversight in the past, we have got rather hung up on judges’ status rather than their experience.

The Lord Chief Justice has written to us and said that it is not very useful to go for a circuit judge or High Court judge if their experience, such as it is, is in civil or matrimonial law, for instance. It is not their status that matters, but their experience. That, principally, is what we refer to in proposed subsection (2), which is why we think it more than appropriate that, yes, it should be a High Court or circuit judge, but it should be one designated by the Lord Chief Justice, who knows far better than the House about the experience of individuals. That is what new clause 4(2) does, and I hope that both measures are greeted with the equanimity that they deserve.

David Heath (Liberal Democrat, Somerton and Frome)

Mr. O’Hara, I felt I was chided by the Minister for not having spotted this, and I can only offer my most sincere apologies to the entire Committee for not having done so. Imagine my glee—imagine my smugness—had I spotted it. All that is now lost.

Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 78, in page 83, column 2, leave out lines 6 and 7 and insert—

‘Regulation 45E(3) and (4).

In Regulation 109— (a) paragraph (1)(g) to (i); (b) in paragraph (4)(a), the words preceding paragraph (i); (c) paragraph (4)(b) and the word “and” immediately preceding it.

In Regulation 115(2), “45E(3),”.’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following: Government amendment No. 79.

Government new schedule 2—Disclosure and the intelligence services: consequential amendments.

Tony McNulty (Labour, Harrow East)

These amendments reconcile the “disclosure and the intelligence services” provisions of clauses 19 to 21 with existing legislation through consequential amendments. Had this been done in the 2002 Bill, I would not have had to move the last amendment. That is by the bye.

The amendments alter the representation of the people regulationsfor England, Wales and Scotland, removing restrictions on the intelligence and security agencies for normal disclosure, as these will now be covered by clause 19. They also preserve all rights conferred on the intelligence and security agencies to obtain information from the electoral register under the regulations.

Section 9(2)(a) of the Anti-terrorism, Crime and Security Act 2001 is removed, because there will be no need for a special information gateway for regular departments to pass information to the intelligence and security agencies once the new provisions are enacted.

Section 38 is removed from the Immigration, Asylum and Nationality Act 2006, which I took through and lovingly know as “IAN”, as there will be no need for a special information gateway to the intelligence and security agencies for immigration and nationality purposes.

Subsection 67 and subsection 39(4)(g) of the Statistics and Registration Service Act 2007, both of which I have been assured exist, are removed, as there is no need for a special information gateway there, either.

In essence, these are technical amendments to ensure that the provisions in clauses 19 to 21 have their intended effect, and I commend them to the Committee.

David Heath (Liberal Democrat, Somerton and Frome)

I will not move amendment No. 49, because it and the amendments with which it is grouped deal with the reform of the control order regime. I have given careful thought to this, and I think that we could usefully devote an hour and a half to two hours to that subject. Given that it is something that needs debating and that, in this last sitting, we still have to deal with very important issues under the new clauses, it is not appropriate for me to move the amendment, and therefore I do not intend to do so.

Clause 90

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 223, in page 60, line 4, at end insert ‘subject to subsections (7) and (8).’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment No. 224, in page 60, line 7, at end add—

‘(7) Section 22 (period of pre-charge detention) and Schedule 1 (amendments relating to period of pre-charge detention), shall not come into effect until codes of practice under section 66 of the Police and Criminal Evidence Act 1984 regulating such detention shall have been approved by a resolution of each House of Parliament.

(8) Section 23 (period of post charge questioning) shall not come into effect until the codes of practice under section 66 of the Police and Criminal Evidence Act 1984 and referred to in section 23(4) shall have been approved by a resolution of each House of Parliament.’.

Dominic Grieve (Conservative, Beaconsfield)

These amendments concern the commencement orders in clause 90 and the opportunity it gives to us here to consider whether we wish to introduce any impediments to those commencement orders. Both amendments are designed to do that. Although I have moved the lead amendment, perhaps it would have been more proper for my right hon. and learned Friend to have done so. Without in any way wishing to object to the generality of the provisions, particularly with regard to pre-charge detention, in relation to which the Minister knows our views, it seems to us that in the case of both pre-charge detention and post-charge questioning, it would be wrong for the power to come into operation, unless new codes of practice under section 66 of the Police and Criminal Evidence Act 1984 regulating such detention are approved by a resolution of both Houses of Parliament.

I wonder whether it is possible for the Minister to accept that, because in practical terms I do not see how either could be properly implemented unless those rules have first been approved. It is therefore a fairly simple issue. As I have said, that does not in any way diminish our objection in principle to the changes on pre-charge detention, and although we are in favour of post-charge questioning, both ought to be subject to a provision so that they cannot operate until we have resolutions from both Houses of Parliament in favour of the regulations. That will be absolutely key to whether this works properly, as we debated earlier.

David Heath (Liberal Democrat, Somerton and Frome)

These amendments, particularly as they refer to post-charge questioning, are entirely in line with our earlier debate. The Minster made it perfectly plain that the amendments to the PACE codes of conduct were needed and that it would not be possible for the measure to be implemented until they were in place. Indeed, he suggested that he would make every endeavour to ensure that the draft PACE codes of conduct were available to us before Report. He resisted the view in the first instance that the Bill should include an explicit requirement with regard to the PACE codes, but he undertook to consider it in the period between the Committee’s proceedings and Report.

We did not have identical undertakings with regard to pre-charge detention, because the debate on pre-charge detention took a rather different course and there were more substantive issues to be discussed, but exactly the same arguments apply in both cases. Therefore, I entirely support the right hon. and learned Member for Sleaford and North Hykeham. His amendments seem to have been hijacked by his Front-Bench colleague, but he will nevertheless have an opportunity to speak in a moment.

Dominic Grieve (Conservative, Beaconsfield)

The only reason why they were hijacked was because I was unaware that my right hon. and learned Friend the Member for Sleaford and North Hykeham had metamorphosed behind me at that moment, and I wanted to ensure that they were discussed.

David Heath (Liberal Democrat, Somerton and Frome)

The right hon. and learned Gentleman has most certainly metamorphosed, or at least appeared, and will no doubt wish to add his comments in just a moment. The amendment is sensible. In material terms, it probably makes little difference, because I think that the Minister will give a clear undertaking in any case, so that there cannot be implementation until the PACE codes have been amended. That being the case, given that he has reassured Members on this side of the Committee and that it is the last sitting of the Committee, the Minister might be predisposed to accept the amendments as proposed, although I have a nagging doubt that that will not be the case.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am grateful for the support of the hon. Member for Somerton and Frome, and indeed for the hijacking by my hon. and learned Friend the Member for Beaconsfield. It is important to have the codes of practice enforced before the relevant parts of the Bill are enacted and come into force, because clearly the powers that are being taken are far-reaching, and it would be quite wrong for those powers to be in existence without the codes that will prevent the abuse of detained people.

The Minister has said on a number of occasions that he intends the codes to be passed before the relevant parts of the Bill become law. I hope he will forgive my observing that parliamentary time is not at his exclusive disposal. Ultimately, the Leader of the House and the usual channels will determine when the codes will be subject to affirmative procedure. Today, the Leader of the House explained that she did not know why a statutory instrument had not been debated long after it had been brought into force. I therefore think that the Minister ought to accept that the relevant parts of the Bill will not come into force until the codes have received the approval of both Houses, as prescribed by amendment No. 224.

Tony McNulty (Labour, Harrow East)

We are in danger of confusing ourselves on the issue of pre-charge detention. There is a well established PACE regime for pre-charge detention, not much of which will need to be substantially changed if schedule 1 becomes law. There may be some minor matters under code H regarding the protection of detained persons in matters such as transfers to prison and access to solicitors. Much of the paraphernalia is already in place for the 28-day regime. The changes might be so minor that they do not even require a statutory instrument.

We must not confuse and conflate the two arguments. There is a substantive argument before the Committee on post-charge questioning, but hon. Members will remember that I am deciding whether we can attach sufficient safeguards through the PACE codes or whether they need to be included in the Bill. Because I have not had much time, I have not reconciled myself to which option is best. It would be rather curious if I were to adopt an amendment committing to amendments to PACE but agree on Report with the thrust of our debate on post-charge questioning and the view of Liberty that the safeguards should be in the Bill. At the least, the first part of the amendment referring to pre-charge detention is unnecessary and the second is precipitate.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister is saying what I expected. However, he is not entirely right that amendment No. 224 pre-empts the decision that he is considering. Even if his view was that there should be safeguards in the Bill, there would still need to be revisions of the PACE codes, which would still have to be brought forward by statutory instrument. Therefore the argument that implementation should not take place until the PACE codes are published would still hold.

Tony McNulty (Labour, Harrow East)

No, it would not. There is a substantive debate—I hesitate to say in the real world—outside this House that post-charge questioning will work only if there is a statutory model of safeguards in primary legislation, entirely outwith the PACE regulations. I do not know whether that is where we will end up, but if it is and the amendment is passed, we will be saying that having determined as a House that the post-charge questioning regime is better put in primary legislation completely separate from PACE, we cannot commence that part of the Bill until the PACE regulations have been suitably amended.

If I satisfy the House, as I expect that I will, that PACE is the principal instrument—although perhaps not the exclusive instrument—for oversight and safeguards on post-charge questioning, the subsequent statutory instruments will be passed by affirmative procedure, as they always have been. We should be able to capture the concerns of hon. Members at that point, rather than now.

The first part of the amendment relating to pre-charge detention is not necessary at all; if, subsequent to investigation after the Bill has been passed, or if, during our deliberations it seems that there have been more substantive changes to PACE from what after all is an extension to an existing regime already covered by code H, that is something that we would have to return to. It is a little premature to insist on PACE provision for post-charge questioning, because in the end that may not be the route that we collectively decide to take for oversight and safeguards. On that basis, the amendment should be withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I am not persuaded by the Minister’s argument. He makes a good point when he says that in reality an extension from 28 to 42 days may require only minor amendments to the existing code. It will certainly require some amendments, I think, but I accept that they may be of a minor nature. Nevertheless, they will have to have been done before the change starts. I was therefore puzzled by his comments about post-charge questioning not being handled under PACE at all. I suppose that it is possible that a separate set of rules could be introduced for it, but I would have thought that it would be sensible for it to be dealt with as an amendment to PACE and have never envisaged otherwise. It is essential that those codes are in place.

If the Minister is prepared to give me an undertaking that he can give assurances to the House on Report that there will be codes in place prior to any introduction of the measures, I will withdraw the amendment. If he is not, I shall press it to a vote to mark the point that many on the Committee are concerned about this matter.

Tony McNulty (Labour, Harrow East)

I can, with a degree of confidence, give that undertaking. I was not suggesting that post-charge questioning, whatever regime we settle on, should be all outwith PACE; I am merely saying that there is a debate about whether that is the way to deal with the problem for the security of the defendant, rather than through PACE. That is not my view, but it is a view that is out there.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I express a word of caution? If I have correctly understood the right hon. Gentleman, it is at least possible that his Department will conclude that the safeguards in respect of post-charge questioning should be the subject of future legislation. I am not saying that that will be the case, but that it is a possibility. I may have misunderstood him.

Tony McNulty (Labour, Harrow East)

No, what I was saying was that if—it is a remote if—the Government decided that post-charge questioning needed its own new statutory model totally outwith PACE, that would be forthcoming during the parliamentary proceedings of the Bill, and not in subsequent new legislation.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am glad, because I was going to say that if I had correctly understood the right hon. Gentleman, we could see quite a long delay before post-charge questioning came into effect, which would be regrettable, but it appears that I had misunderstood and I am sorry for that fact.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful for those comments from the Minister and I will withdraw the amendment. Before I do so, I should say that although he has clarified the point, one of my concerns is that while we have argued there should be a degree of judicial supervision for the post-charge questioning process, even if there were judicial supervision, we would still need regulations for covering how it is carried out. I never saw that issue as being a case of either/or, and I see the Minister nodding so I think that we are on the same wavelength on that point. I beg to ask leave to withdraw the amendment.

Clause 91

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I want to refer to a point that I have already made, namely that the Bill applies to every part of the United Kingdom. The debate has conducted largely by hon. Members who represent constituencies in England and Wales, and it is of course true that those parts of the UK are perhaps the most primarily affected, but I am uneasy about the fact that so far as I am aware, we have had no contribution of any kind from the Northern Ireland Office. While I acknowledge that there is an hon. Member—[Interruption.]—no, my hon. Friend the Member for Reigate is not a Northern Ireland spokesman. While I acknowledge the fact that there is a Scottish member of the Committee, that hon. Member has not played a huge part in the debate, and I am uneasy about that. We are legislating without input from other parts of the United Kingdom. I therefore suggest that as a matter of general practice, we should invite written evidence from the relevant Departments—in this case the Scotland Office and the Northern Ireland Office—with regard to the clauses that bite on Northern Ireland and Scotland. It is unsatisfactory that the Committee has had no substantive input from those two Departments, when the Bill affects them.

Tony McNulty (Labour, Harrow East)

I certainly do not agree with that in the case of Scotland. We had, by common consent, a very productive and illuminating session with the Lord Advocate, who more than adequately covered most of the Scottish dimension. I am not, on this occasion, offending the hon. Member for Reigate, but the usual channels were asked by the Democratic Unionist party, “If your side would give up one place for the DUP because of the Northern Ireland dimension—” [Interruption] They were asked, because they made the same recommendation. It worked for Plaid Cymru, so I ask the right hon. and learned Gentleman look to the mote in his own eye.

New Clause 4

New Clause 6

New Clause 1

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move, That the clause be read a Second time.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following: New clause 12—Intercept evidence: regulations —

‘(1) The Secretary of State must, by 31st July 2010, make regulations which make provision for the use of “intercept evidence” and “metering evidence” in criminal proceedings.

(2) The regulations made under subsection (1) shall be made by statutory instrument which are subject to the affirmative resolution procedure.’.

New schedule 1—Intercept evidence—

David Heath (Liberal Democrat, Somerton and Frome)

We now come to the big missing segment of the Bill—the use in criminal trials of intercept evidence and the admissibility of such evidence. This is a matter which has been raised repeatedly over the years and which many of us feel very strongly ought to be part of the apparatus available to prosecutors in order to bring successful prosecutions. That certainly applies in terrorism cases where there is a strong argument for it, but I also believe that it would make a significant contribution to the fight against organised crime.

Hitherto, Governments have always been extremely reluctant to accede to such requests. That reluctance has been because of strongly held views from the security services about the effect on the operability of their systems in the event of disclosure. I understand those concerns and the reservations that have been expressed but I have always felt that it is not impossible to create a legal architecture that would allow for the admissibility of evidence in some cases that would be of benefit to the prosecution of those offences. Although it is always very comforting to look at the experience of other jurisdictions and to say that if they can do it we can do it, I recognise that that is not necessarily as simple as it seems. Very few jurisdictions approach such subjects identically. Nevertheless, my party’s view, and I believe that of the Conservative party, has been for some time that that is something for which we must make arrangements for the security of our country and to ensure that the police, the intelligence services and our prosecutors can do their jobs in the most effective way.

The new clauses are not of my own construction but are taken from new clauses or amendments tabled by Lord Lloyd of Berwick and debated in another place in the context of previous Bills. I thought that they would be a useful platform on which we could hold this debate. Since I tabled the new clauses we have had an extremely useful seminar. Can I say again how grateful I am to the Minister for arranging that seminar and for the clarity and openness of the senior officials who attended and spoke to us about the issues that they face? I found it illuminating as, I suspect, did other members of the Committee.

We also have the new clause and schedule in the name of the hon. and learned Member for Beaconsfield. There is a substantive difference between his and mine in that he seeks to provide a timetable for the implementation of the admissibility. That has a lot to commend it. I will not steal his thunder by speaking to his new clause before he has the opportunity to do so but, when I look at his proposal and my proposal, I think that his has more merit, in that it means that the Government stick to the assurances given.

The difference between the situation now and the situation when these or similar new clauses and amendments were first tabled is that we have had the Chilcot review, which was extremely useful because it addressed these issues seriously. For the record, that was the Privy Council review of intercept as evidence under the chairmanship of Sir John Chilcot with his colleagues Lord Archer of Sandwell, Lord Hurd of Westwell and my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith). They looked in considerable depth at the operational and legislative obstacles to the adoption of new procedures which the Prime Minister has now indicated that he wishes to see.

I remind the Committee that when the Chilcot review considered the matter in detail it came to the conclusion that there were risks to the strategic capability of the UK’s intelligence agencies but that they could be overcome by appropriate legislative and operational measures. It set out in very clear terms the requirements for intercept as evidence to be operationally workable, not why it could not be implemented but how it could be implemented and how the difficulties which they recognised could be circumvented. It set out:

“The intercepting agency shall decide whether a prosecution involving their intercepted material shall proceed”—

not whether the prosecution should proceed but whether a prosecution involving their intercepted material should proceed.

Secondly, it said:

“Intercepted material originating from the intelligence agencies shall not be disclosed beyond cleared judges, prosecutors, or special (defence) advocates, except in a form agreed by the originator”—

a proposal that one would expect in that context.

“Material intercepted (by any agency) through the use of sensitive Sigint techniques shall not be disclosed unless the Secretary of State is satisfied that disclosure will not put the capability and techniques at risk.”

That is an important safeguard for the operational integrity of some of the processes used.

“No intelligence or law enforcement agency shall be required to retain raw intercepted material for significantly more or less time than needed for operational purposes (which may include using the material as evidence).”

That recognises the huge churning, the turnover of this sort of material, and the fact that the intelligence agencies have a specific purpose in looking at that intercept material. It is not for some archiving purpose; it is to see whether there is evidence of criminal activity, either now or envisaged in the future. Therefore, it is not normally retained, and nor should we expect vast quantities of material to be retained.

The next point is:

“No intelligence or law enforcement agency shall be required to examine, transcribe or make notes of intercepted material to a substantially higher standard than it believes is required to meet its objectives (which may include, but are not limited to, using material as evidence)”—

again, a practical point to ensure that we do not put a bureaucratic burden on our intelligence services that they cannot possibly meet.

“Intelligence and law enforcement agencies shall be able to carry out real time tactical interception in order to disrupt, interdict or prevent terrorist and criminal activity, as effectively as they do now.”

We would all hope that that is the case, as it is essential that the security services are able to do their work, particularly when it is possible to prevent a catastrophic event happening. We do not want them looking over their shoulder to consider what we have passed in this Committee, or elsewhere, and that getting in the way of their work.

“Law enforcement agencies shall be able to use interception to provide strategic intelligence on criminal enterprises, and retain the intelligence sometimes for a number of years, regardless of the progress of specific criminal cases. Interception from the same lines may serve both tactical and strategic purposes; if it does, it shall be handled in a manner appropriate to both.”

Again, that is perfectly sensible.

“Intelligence agencies must be able to support law enforcement by carrying out interception, for “serious crime” purposes, of targets nominated by law enforcement, and to provide the product or reports on it to those agencies. Anything so provided shall be subject to the same disclosure obligations as other intelligence intercept.”

Again, that goes beyond the activities of a limited number of people who are engaged in terrorism, into a wider field of serious crime.

Lastly, the review stated:

“At trials (whether or not intercept is adduced as evidence) the defence shall not be able conduct successful ‘fishing expeditions’ against intercept alleged to be held by any agency.”

That is a major concern for the security services, but it is one that can be prevented by appropriate rules for the use and disclosure of the material in court.

The Chilcot review set out clearly the parameters in which the work should go forward. In the seminar, we heard that that work is going forward, and I was encouraged by that. I take what we were told at face value: that very serious consideration has been given to find an appropriate legal model, and that having designed such a legal model, it would be tested, and provided that it was tested and found to be appropriate, it would be implemented through the legislation.

We are well down the road, both in terms of intention and the work that has already been commissioned, in achieving our objective to ensure that intercept evidence is available as a further tool for investigation and prosecution. What remains to be determined is the time scale in which that work will proceed, and the legislative vehicle which will be used and whether that involves further delay.

The glib comment would be that we have a criminal justice Bill every year so there is certainly no problem in finding the legislative vehicle. It is a very rare year indeed when we do not have an array of Home Office and Ministry of Justice Bills to deal with, so I am certainly confident that there will be legislative vehicles. But I do need assurances from the Minister that a time scale is both envisaged and will be kept to for this. This is a very serious matter for many Members on both sides of the House, who really cannot understand why we should forgo such an effective evidential tool if there are ways of getting around the undoubted operational difficulties.

We need a very clear understanding that that work is not only proceeding but will reach a rapid conclusion, and that it is the clear intention of Ministers to make sure that that does happen rather than find ways for it not to happen—I am reassured on that. We need to be clear that there are no agencies who effectively have the veto on this process and can stymie what has been recommended, not just by those who consider it from the point of view of securing convictions, but those who are directly involved in gathering criminal intelligence—certainly on the police side—and can see the advantage of it. We need to set aside the reservations apparently expressed by the Metropolitan Police Commissioner, and his view that this was going to be years hence, which, I have to say, was a very discouraging statement, and not in keeping with what we heard from the Home Office.

Dominic Grieve (Conservative, Beaconsfield)

I would say that it is mystifying when one compares it with the briefing we then had at the Home Office. It left me slightly with the sense that the Metropolitan Police Commissioner sometimes seems to say whatever comes into his head at the time.

David Heath (Liberal Democrat, Somerton and Frome)

I must say that it is not the first time that I have been puzzled by evidence provided by the Metropolitan Police Commissioner. He does seem to occasionally shoot from the hip and make comments which have not been fully considered. It worries me that he is not party to the work that is going ahead—at high speed—and that he is not aware that Ministers’ clear intention is to proceed in that way. If he is not party to that, then someone should take him aside and say “This is what is going on, Commissioner. Perhaps next time you make a public utterance on this issue, you might be a little more helpful to our processes, rather than suggesting quite the reverse of what we were told was the case in the seminar we attended.”

I do not want to go through the arguments in support of intercept evidence because both sides of the House have already agreed that this is where we intend to go. What remains are the legislative hurdles and the architecture of rules that need to be developed, tested and implemented. Our concern is that there is not yet any clarity about the timetable—thrown into sharp relief by the words of the Metropolitan Police Commissioner. I therefore hope that we will hear clear assurances from the Minister in that respect.

If those assurances are not forthcoming, I will be tempted to support not my own new clause, which I do not intend to press to a Division, but the proposal from the hon. and learned Member for Beaconsfield, which provides a clear timetable for implementation, which is what everybody wants to see.

Dominic Grieve (Conservative, Beaconsfield)

As the hon. Member for Somerton and Frome rightly said, there is in reality very little difference between his amendment and my own. In its scope, it is to all intents and purposes identical on the schedule, and the only difference is the question whether it should be implemented now or later. I am on record on numerous occasions as saying that I wish to see intercept evidence introduced as soon as possible in terrorist cases. I agree with him that using it in cases of serious crime might also be beneficial. Even confining my remarks to the question of terrorism and terrorist cases, I see a powerful argument for wanting to have it introduced immediately, particularly because I have this sense of silence from the Government’s side about whether there was a serious intent to implement the Chilcot report.

In fairness to the Minister and to the Government, I found the briefing we received at the Home Office both illuminating and heartening. It seemed to me we had a clear indication that there was a strong desire to implement the recommendations, that work was taking place to bring about implementation and that we were dealing with a time frame rather than anything else. I recollect—I hope I remember this properly—that at one stage of the briefing we were told that a time frame of about a year to 18 months was being worked to.

For that reason, I selected 31 July 2010 as the date by which the regulations ought to come into force to implement the use of intercept evidence. I toyed with the idea of deferring it until 1 January 2011, but thought that that was probably too far away and wanted at least to stimulate debate on the feasibility of moving forward at a reasonable pace.

We are in danger of missing an opportunity in the passage of this legislation if we do not do something about this area. After all, the Government have already, in the legislation, done something about inquiries and inquests in relation to the use of intercept evidence. As the Minister acknowledged, that is in many ways a major step forward in the use of intercept material.

I accept that the problems associated with using intercept material in inquiries and inquests in the new form wanted by the Government are rather different from those that arise in the context of a criminal trial. However, I remain firmly of the view that the difficulties that undoubtedly exist are not insurmountable, and I have a compelling feeling of regret that this was not tackled properly four, five or six years ago when it became clear that the rise of a new kind of terrorism was going to require us to take sensible steps to try to ensure that we can bring to justice the perpetrators of outrages and those who are planning appalling offences.

The longer we delay doing it, the more we are forced to rely on administrative sanctions, whether it be control orders or the Belmarsh detention regime—all of which, as I think the Minister acknowledges, are flawed and unsatisfactory even if they may be necessary. That necessity should not blind us to the equal necessity of trying to do everything to get rid of those systems.

I am the first to accept that intercept evidence is not a panacea, because human intelligence—which is of course a very separate thing from intercept evidence—may often be the source of information that tells the Government what is going on. It remains a very difficult area to adduce in court, and therefore there may still remain cases where intercept evidence does not solve the problem. But the Government would be on much stronger ground in arguing for the administrative alternatives that they have put forward over the last five or six years if they were in a position to say that they had done everything in their power to bring within the umbrella of the criminal justice system powers to get convictions and there still remained a problem rather than the current position where they are unable to give that reassurance to the public or Parliament. For that reason, I strongly commend the introduction of intercept evidence.

There are very few western democracies where intercept evidence is not used. There are other common law jurisdictions where it is used. There is no compelling evidence from those countries that the use of that material is leading to serious problems for the intelligence and security services in collating and obtaining material. We live in a sophisticated age. If one wants to understand how intercept is carried out, there are all sort of places on the internet where one will find a mine of information. Some of it will be inaccurate, but some will be accurate. My feeling has always been that those who dabble in the fields of terrorism and serious crime are probably very well aware of where their communications are likely to be intercepted. Doubtless, as technology advances, there is always a hope from the intelligence services that they will keep one step ahead of their quarry.

We need to move forward and I hope that the Minister can give us some positive responses this afternoon so that we are in a better position on Report to evaluate some of the other difficult areas that the Government are arguing about. Whether or not we go down the road of 42-day pre-charge detention, to which I remain utterly opposed, the sooner intercept evidence can be used in court, the better.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The first rule of advocacy is that one should not put a question to the witness unless one knows what answer will be received. When I put a question to Sir Ian Blair, I was flabbergasted at the response, not just at its content, but because it was delivered almost as if I was wasting everybody’s time in talking about intercept evidence. That contrasted dramatically with the Home Office briefing. I add my thanks for that facility having being made available to us. We had a candid and full exchange about the progress and the difficulties that need to be dealt with.

Like other Committee members, I feel that intercept evidence is vital. I, too, find it difficult to comprehend why other common law countries can use it without compromising sources. That is an important matter, which I have no doubt is uppermost in the minds of Home Office officials. I appended my name to new schedule 1 before we had the briefing and I take it that the hon. Member for Somerton and Frome will not press it to a vote because I would be slightly embarrassed, having heard from the Home Office officials.

The preferable proposal might be new schedule 4, which would impose a time frame. I echo what the hon. and learned Member for Beaconsfield said on that. Lord Carlile in effect said that this is not a silver bullet, but part of the armoury. It will help in many cases, but not in all. We should have it in the armoury because of the seriousness of the threat. I was encouraged by what I heard in the Home Office and I have no reason to doubt what was said. I hope that in applying what the officials candidly described to us, the Minister will look favourably on new schedule 4. It allows a longer period than was anticipated by officials, within which pilot schemes and the necessary investigations will have been concluded. I support the idea advanced by the hon. Member for Somerton and Frome, but it has been somewhat overtaken by events. I encourage the Minister to look carefully at new schedule 4.

Tony McNulty (Labour, Harrow East)

I am grateful to hon. Members for their appreciation of the seminar, which was clearly illuminating. I shall be having words later with officials. If they were far too candid and open, they will not be doing it again. In all seriousness, I am grateful to them for making it so open and candid that people could understand what is happening. None the less, I should make clear where we are.

A cross-party group deliberated extensively on the matter and reported to the House last summer. The Prime Minister fully accepted what the Chilcot report said. As hon. Members will have heard, fairly soon thereafter an implementation group, or whatever it is called, was set to work on the not inconsiderable barriers to which Chilcot referred. It was a long and daunting list, but the starting premise was that if we could get there, we should.

I cannot accept the reheated amendment of Lord Lloyd of Berwick tabled by the hon. Member for Somerton and Frome because, counter to Chilcot, it relies upon public interest immunity. Chilcot clearly said that he was not convinced—actually, he went much further—that PII in its current form was appropriate. He spoke of a PII-plus system, which is part of what is being worked upon. There must be something about Berwick: we had the right hon. Member for Berwick-upon-Tweed (Mr. Beith) on the Committee and Lord Lloyd of Berwick in the other place. The amendment is premature, to say the least, and it should be resisted. If permitted and implemented, it would result in a far worse position than that which Chilcot, the right hon. Member for Berwick-upon-Tweed and others have suggested is the position that we need to get to. In that context, I would also resist the new schedule.

I hope that it was made clear at the Home Office seminar that, in discussion with Chilcot, the 2009-10 Session is precisely when we hope to legislate on the matter. However, that rather presumes that all the work will have been done and that all the areas that we hope to have dispatched, and all the road blocks and obstacles that we need to have overcome are overcome and dispatched. I do not know when that will be; nor, with respect, does the hon. and learned Member for Beaconsfield. I do not want to hold the Government to a date, as I simply do not know whether it can be met.

I am not entirely sure what formulation will be put in place to ensure that the House is kept broadly up to date with the progress of the Chilcot advisory group. I shall certainly take that matter away and explore it. It is a sensitive and serious issue. The Prime Minister has made a significant statement on it. We have set up the group. It is not necessary to let the House know every nook and cranny, every detail, of its work and deliberations, but it is only fair to have a system in place to tell the House what level of progress is being made.

Martin Salter (Labour, Reading West)

Does the Minister agree that there is a danger of hon. Members appearing churlish, given the growing consensus about intercept evidence in the House and the Committee? The Home Affairs Committee recommended it, and in evidence to that Committee, Assistant Commissioner Hayman said that he believed that there is a case for its use. We do not need to overcomplicate the matter. Policy is moving precisely in the right direction.

Tony McNulty (Labour, Harrow East)

I entirely agree. I have never known my hon. Friend to be churlish, so there was no need for him to make that qualification at the start of his intervention.

We are on course. As I said—I happily repeat it—the work programme now under way will be consistent with legislation if the operational tests can be met. I do not diminish the seriousness of those operational and legal tests, but we expect to debate the matter during the 2009-10 Session. We believe that the issues raised by Chilcot should be capable of resolution, but there is no guarantee that they will be met without a significant further reworking of the model—or met at all. As my hon. Friend the Member for Reading, West implied, the new clause would completely pre-empt that, being inconsistent not only with the Government’s position or that of the respective select committees, but also with the cross-party Chilcot report itself. It is unnecessary either to lock us into a date that no one in this House or Committee knows whether we can keep——I repeat the assurance that we seek to achieve it by 2009-10, all going well—or into what is clearly, according to Lord Lloyd of Berwick, an inferior model that relies on a PII system that Lord Chilcot has traduced himself.

David Heath (Liberal Democrat, Somerton and Frome)

Not “Lord”.

Tony McNulty (Labour, Harrow East)

Oops—maybe I have given something away there.

It is not a sufficient legal framework to build such a process on, if all the operational matters do come to fruition. But let us be very clear: the points—not made churlishly—about Blair were relevant. Actually, Blair has been one of the loudest and most vociferous proponents of intercept as evidence, as in his Berlin speech about six to nine months ago, which at the time was much to my annoyance, but with which now, of course, I wholeheartedly agree. If he was confused at our session, then that was a lack, but an uncharacteristic lack. He has made very clear, as did Andy Hayman, the previous head of anti-terrorism, as my hon. Friend the Member for Reading, West pointed out, that they favour intercept evidence.

Let us be very clear. It is not the panacea. On the closest parallel we have had, and I think Lord Chilcot referred to this, in US and UK cases that were roughly comparable in their use of intercept, the highest arrest to conviction rate as a result of interception between 1996 and 2006 in the US was 56.4 per cent. In the UK, a Metropolitan police study of operations carried out in 2006-07 involving intercept intelligence only, found there was an 88 per cent. charge to conviction rate of completed cases.

The argument put that somehow we are lacking in our prosecutorial system because we do not use intercept as evidence is not as black and white as people imagine. Because we do not use intercept as evidence, there is far, far more that our intelligence and law enforcement people do together in the pursuit of crime, and terrorist crime in particular, that they would not do if intercept as evidence were introduced. I am not offering that as an objection to bringing intercept evidence in; I am simply saying it is not the black and white position people imply.

The Chilcot report itself highlighted that, in a review of nine current or former control order cases conducted by independent senior criminal counsel, the ability to use intercept material in evidence would not have enabled a criminal prosecution to be brought in any of the case studies. I am not saying this of the hon. and learned Member for Beaconsfield or the hon. Member for Somerton and Frome—though there are plenty in his ranks—but there are those who have said that, with intercept evidence and post-charge questioning, there would in an instant be no need for pre-charge detention or control orders. That is simply far too simplistic. I do not want to cast aspersions on anyone in particular in the hon. Gentleman’s ranks, but he need look no further than his right hon. Friend the Member for Sheffield, Hallam (Mr. Clegg), who has made that point on a number of occasions. It completely misconstrues the import of what we are discussing. Will it help? It may. I would put it no stronger than that.

People need to understand very clearly the distinction between communication data, bugging and the use of intercept evidence, which I am sure everyone here does. I do not think the distinction between those is quite so clear-cut out in the real world, and that adds to the confusion.

Let us take a simple bug put in a car or in somebody’s room. All of a sudden, when the court case comes, we get the transcript and hear the tape, and people will say “I thought we did not use intercept evidence.” It goes to the provenance of the location of the intelligence. A bug in a car is easily dealt with in terms of going back to the source, but some elements of intercept, and how we got it, will not be. That will not be fixed by Chilcot either, by the way.

Communications data are used all the time as well. In court cases, we see the police have gone through people’s phone records and everything else, linking who people have been talking to—not the substance or detail of any of the conversations, but simply the traffic. The same applies to e-mail.

The closer we get to the implementation of Chilcot——not on the back of this Bill, I hasten to add—the more there needs to be further discussion about what we mean by intercept as evidence. I would not want to diminish what especially US law enforcement can do but while more often than not, they are very enthusiastic about it, they tell you in the next breath that in most of the serious crime cases—terrorism, less so—they have cracked using intercept as evidence have involved intercepted evidence right from the beginning of the process. This is why cases are run increasingly on a sting basis and why much of what gets through the Racketeer Influenced and Corrupt Organisations Act and other legislation uses intercept as part of the investigatory process rather than simply as part of the discovery.

The Chilcot review discussed all that. I say that to reinforce the point that it is not the panacea that people suggest. Cases have been studied—including the one referred to by the hon. and learned Gentleman—as part of a review of intercept as evidence. I cannot say, hand on heart, in every significant case of terrorism over the last five to eight years intercept as evidence would not have been of use. Intercept has been of enormous use but it is not fair to imply that we have fought and disrupted those plots in a deficient way because of the absence of intercept as evidence. One cannot claim that causality given what has come to court and the success we have had through the courts.

Will it, like all the other elements of this Bill, add to the array of devices and activities we have in the fight against terrorism? It will. The sooner we get there, the better. At the very least, the sooner we get to see whether all that Chilcot describes as impediments can be overcome and then legislate, the better. We are at one with that.

These new clauses and schedules are premature given the processes that are unfolding and I ask that they be resisted.

David Heath (Liberal Democrat, Somerton and Frome)

This is an important issue. The Minister is right that this is one element among a range of tools that should be available. No one has ever suggested that it is the one tool which is going to be efficacious when nothing else is. It is part of an array which we have been assembling in order to fight terrorism effectively. It is reasonable that we argue that when we have all the elements in place we can question whether other less satisfactory suggestions are required. That is the basis of the argument on 42 days or any other extension of pre-charge questioning but that is a debate we have had and will have and not the one we are engaged in now.

The Minister is also right to say there is widespread confusion about what we mean by intercept evidence. That is one reason people are very confused; not because they think all intercept evidence is not admissible but because they know that some is. They question why when one bit of electronic kit picks up evidence it can be put in front of a court but when another bit of electronic kit picks up the same conversation it cannot be. That has added to the confusion and the sense that this is not a sensible position to be in.

I said earlier that the matter has ramifications beyond terrorist cases. It is also an important weapon in fighting serious organised crime. An Italian Government official recently asked me, unofficially, why on earth we do not allow intercept evidence, as it is a crucial part of the fight against organised crime in his country. Of course, they have some experience of fighting organised crime. There are anomalies, such as allowing some types of intercept evidence to be admissible in court but not others, or the fact that other democracies, including those with a common law jurisdiction, can apparently get round the problems that prove so difficult for us to deal with. There is a nagging suspicion that although this is not a panacea or silver bullet—one could use all the clichÃ(c)s that can be adduced—it is nevertheless an important tool within the array, and it should be possible to deploy it. For a long time, all those arguments hit a brick wall. There was simply no question of the admissibility of intercept evidence because important and highly placed officials within the security services advised against it. We are entitled to take that into account when assessing the present progress, which I agree is entirely to be welcomed.

Tony McNulty (Labour, Harrow East)

Lord Goldsmith conducted a considerable review of that in the not-too-distant past, and although I cannot remember the names involved, I am pretty sure that there has been, at least under the Thatcher Government, some exploration of utilising the two. Even though those have not gone on to fruition or been as public as the Chilcot review, it is unfair to say that previous Governments have not explored in some detail the potential use of intercept evidence.

David Heath (Liberal Democrat, Somerton and Frome)

If I gave that impression, I will quickly dispel it. I know that previous Governments, and indeed this Government, have looked carefully at that issue in the past, but they have always concluded that it cannot proceed, and that is why the Chilcot review and the work that has come from it is now welcome. However, I do not think that it is entirely right to use that right parliamentary expression, “churlish”. When do we ever say “churlish” outside of the House? Never, but when one expresses the mildest disagreement with any other Member, one is accused of being churlish. It is not churlish to say that although the progress is now welcome, it has been a long time coming and we have been pushing this case hard for a long time. Among those pushing for that case has been Lord Lloyd of Berwick, along with many noble Members in another place who have been completely convinced of the merits of the case but who have so far been repulsed.

I am confident that we are making progress, and the Minister has said he has a clear timetable in mind. I understand that he cannot commit to that because it is a work in progress and new difficulties might be discovered. Members of the Committee are entitled to ask for those commitments, and the Minister said earlier that he must find a way of telling the House how progress is being maintained, which will be very important. It would reassure many Members who feel strongly about that if a factual report on progress could be presented to the House in some form that is yet to be devised.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Might I suggest that a good way for the Minister to keep us informed would be an undertaking to give an oral statement before the House rises for the summer recess?

David Heath (Liberal Democrat, Somerton and Frome)

I am not sure that it is entirely within the gift of a Minister of State to give that undertaking, but it would be extremely helpful. The Minister might want to refer that back to the Home Secretary as something that would be of value. Given that I anticipate that we will reach Report stage before the summer recess, we need to find an opportunity on Report for the sort of report that the Minister gave today to be updated to take into account work between now and then. I hope that we are in any way overplaying our hand on this issue, given the agreement on all sides to try to make progress, if we find a vehicle through amendment that would enable that report to the House to be made.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Does my hon. Friend agree that when the Minister reports, in whatever form he chooses to do so, he should also update us on cost? That was one of the factors that the Committee briefing identified as a possible obstacle to the use of intercept evidence.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to my hon. Friend and I am glad that he is now freed of the requirement to speak on anti-Semitism in the Chamber and can rejoin the Committee. He has touched on one of a number of points that were addressed in the seminar about which it would be useful to hear progress, but let us do so in the spirit that we are now making progress and that hon. Members on all sides now wish to see the measure put in place—at least that is the assumption that I make from the tenor of today’s debate.

I do not intend to press the new clause because it has been overtaken by events. The Minister is right that the formulation used by the Lord Berwick, which was useful and has served to enable the debate, is likely to be superseded by a more sophisticated model in the work that he has already indicated is going ahead. That being the case, I shall seek to withdraw the new clause, but it is important that we have had this debate and that we commit ourselves to adding the measure to the armoury of weapons available to the investigating and prosecuting authorities in terrorism cases. Until we have it on the statute book, whatever the Minister says about the limited application, we are deficient in what is available and that is regrettable. On that basis, I beg to ask leave to withdraw the motion.

New Clause 5

Dominic Grieve (Conservative, Beaconsfield)

I beg to move, That the clause be read a Second time.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss

New clause 11—Proscribed organisations (No. 2)

‘(1) Section 3 of the Terrorism Act 2000 (c. 11) is amended as follows.

(2) In subsection (5) after paragraph (d) insert—

“(e) has been involved in support or acts of terrorism and has not unequivocally renounced support of terrorism.”.’.

Dominic Grieve (Conservative, Beaconsfield)

The Bill’s passage offers us an opportunity to look at other aspects of previous terrorism Acts, particularly the Terrorism Act 2000, in respect of proscribed organisations. The Minister will be aware that there has been some anxiety expressed in the House that, in the past, Ministers, including the last Prime Minister, indicated the necessity, or desirability at least, of proscribing certain organisations that were linked to terrorism, but having the told House that action would be taken, nothing has happened and it has gradually emerged that there are doubts about whether the organisations concerned fit the bill for proscription. In one case the arguments advanced in the Commons have centred around Hizb ut-Tahrir and its association with terrorism. The concerns expressed about that have not, however, led to it being banned.

It seems that when one considers the wording of the Terrorism Act 2000, it is at least arguable that it does not deal adequately with organisations that have in the past supported terrorism—and in some circumstances actively carried it out—but have successfully stepped to one side for the purpose of maintaining their public credibility and maintained a stark ambiguity as to their present status. For that reason, we thought it right for the purposes of stimulating debate to table two possible models for dealing with the problem, one of which would allow the proscription of an organisation that has been involved in support or acts of terrorism—new clause 5. Having tabled that, I was concerned about it because it seemed to me that it was capable of drawing the net too widely, particularly because it would, for example, catch organisations such as Sinn Fein which have undoubtedly supported terrorism in the past but have now unequivocally abandoned it.

The better model we might therefore choose to follow is that in new clause 11 which adds—this is my preferred model—to the words of new clause 5

“has been involved in support or acts of terrorism and has not unequivocally renounced support of terrorism”.

If we were to adopt such a model it seems that organisations that have, in many cases, a proven link with terrorism, but have not acquired an ambiguous status which often appears to be entirely deliberate, could, if necessary be put on the proscribed list by the Government.

I am aware that arguments are sometimes advanced that it is better not to proscribe organisations because it keeps them out in the open. There are some intelligence and policing advantages from doing so, but nevertheless we have a number of organisations, some of which are located in this country, with agendas that appear to be extremely closely associated with terrorism.

In seeking to put this forward, I do not in any way wish to suggest that it is not possible for organisations to change their spots. After all, the Government have just lost a case concerning an organisation linked to Iran. I have taken the view over the past two years that there was quite compelling evidence to suggest that it was no longer associated with terrorism at all, and it appears to have satisfied a court of that fact, although the Government remain unhappy about that and are appealing the matter. I shall not touch on that further; I simply put it forward as an illustration of one of the sorts of areas that we have to look at.

Leaving that particular example to one side, the amendment in new clause 11 would be neutral in that case. If an organisation can show that it has unequivocally renounced terrorism, is not actively supporting it, or carrying out acts of terrorism, there would be no grounds for its proscription. But if it could still be shown that they have displayed a continuing ambivalence when, in the past, they have either supported terrorism or perpetrated acts of terrorism themselves, it would provide the Government with an extra weapon by which it could, if necessary, bring a motion for proscription before the House of Commons.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The hon. and learned Member for Beaconsfield was right to say that new clause 5 was too widely drafted. However, perhaps some of the concerns we have about new clause 5 are equally applicable to new clause 11 in terms of an organisation being able to demonstrate that it

“has not unequivocally renounced support of terrorism”.

I do not know whether there is a legal definition for unequivocally renouncing something. I assume that there is not. Therefore to be able to demonstrate that, for example, the leading lights of an organisation have unequivocally renounced support for terrorism but individual members have not, just as with new clause 5, there are concerns about the drafting of that and how broad it is. Because of our concerns about being able to demonstrate how an organisation has unequivocally renounced support of terrorism, should the hon. and learned Gentleman be minded to press the matter to a vote, we will not be supporting him.

Dominic Grieve (Conservative, Beaconsfield)

The purpose of this new clause is not only to stimulate debate and to listen to what the Minister has to say; it goes beyond that. I took the words “unequivocally renounced” because those were the words used in the context of the Northern Ireland peace process about the IRA and Sinn Fein. Although it can clearly always remain a subject of debate and polemic, there came a point where it became fairly apparent that there had been an unequivocal renunciation. That seemed to be as good a term as I was likely to find.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I thank the hon. and learned Gentleman for explaining that. He made a good choice. However, what is also illustrated is that in arriving at the point where it was agreed that Sinn Fein had unequivocally renounced support for terrorism, there were a large number of staging posts along the way where some argued that it had, and others that it had not. Because of the problems about agreeing where the point of unequivocal renunciation arises, we are not inclined to support the measure.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Does not the new clause have one great advantage? If, for example, the Government were minded to proscribe an organisation, and that organisation considered that it fell within the exemption as it had renounced terrorism, the process of proscription would enable that organisation to demonstrate that it had indeed renounced it. To that extent, it would be a helpful process.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

From a sedentary position my hon. Friend the Member for Somerton and Frome says that it widens the scope rather than narrowing it.

David Heath (Liberal Democrat, Somerton and Frome)

It worries me that this widens the possibility of proscription. I rarely say that Ministers should be given the benefit of the doubt, but when they are in possession of the intelligence reports and the advice of the police agencies, they can make an assessment about whether an organisation is engaged in terrorism or is a supporter of it. The new clauses do not add anything other than encouraging the view that a national clamour through the press, or through MPs, can apply pressure on Ministers to proscribe an organisation that their intelligence tells them should not be proscribed.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

My hon. Friend and others have demonstrated that the official Opposition spokesman has achieved his aims in terms of engaging in a debate about this matter, and we will all listen carefully to what the Minister says in response.

Tony McNulty (Labour, Harrow East)

I want to thank two Conservative members who approached me on this matter some time ago, asking whether this might be an appropriate occasion to explore it. I am grateful to them, particularly—without being invidious and naming names—to the hon. Member for Lancaster and Wyrewho spoke to me some time ago, and fair play to him. The only problem was timing—not his, but timing more generally.

The hon. and learned Member for Beaconsfield quite fairly pointed out that we have just had a recent judgment from the Proscribed Organisations Appeal Commission with regard to the People’s Mujahedeen Organisation of Iran, on which we are appealing. As a result of both the Court of Appeal judgment, which we now have, and the original POAC judgment, we may seek to make some changes to the law on proscription in the Bill on Report. New clause 11, rather than new clause 5—as the hon. and learned Gentleman rightly said—might be worthy of consideration. I agree with him that even if the wrong organisation is captured, were this to be part of such an amendment on Report, the process would be that organisation’s opportunity to renounce as fully as possible. [Interruption.] I know that we lost the appeal, I have worked that out. I was referring to reviewing the Court of Appeal judgment as well as POAC’s original judgment. I am painfully aware that we have lost. We are at an appropriate stage to review both elements of those documents and the entire architecture of the proscription legislation, and as part of that review process, I undertake to take the import of new clause 11 away and, if appropriate, to come back on Report with a conclusion to our deliberations on what is a very serious new clause. Again I am grateful that it has been tabled, but I should like it to be un-tabled.

Dominic Grieve (Conservative, Beaconsfield)

I shall satisfy the Minister by un-tabling it, if that is the correct terminology, although I have some slight doubt about that. The Minister’s demotic adds richly to the proceedings of the Committee. This is an important issue. New clause 11 could well provide the basis of a formula that could be of considerable assistance to the Government in dealing with some organisations on the fringes of terrorism, in cases where there seems to be a considerable amount of evidence that they are fellow travellers with terrorism, even if they have found it convenient for their own purposes to step to one side and claim that their hands are clean. For those reasons, I very much hope that the Minister’s assurance is that the issue has not been lost sight of and can be returned to, and I beg to ask leave to withdraw the motion.

New Clause 8

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move, That the clause be read a Second time.

I rather regret that my hon. Friend the Member for Newark is not here, because this was very much his new clause. I have not discussed new clause 8 with him, so I do not entirely know what was in his mind, and these are rather more my observations than they are his.

Subsection (2) is of course in accordance with judge-made law as it is, namely that defendants who plead guilty at the earliest possible opportunity can achieve a discount in their sentence. In my view, that is wholly right. The maximum is about one third for the earliest possible indication of a plea of guilty. I think that that is right and should apply to terrorist offences as to any other.

Subsection (1) could apply not just to a terrorism Bill, but to any criminal justice Bill, because there is considerable merit in allowing pre-trial plea bargaining. As a matter of fact, pre-trial plea bargaining has existed for a very long time and still exists—and a very good thing too. There is very frequently discussion between defence and prosecution counsel as to what plea might be acceptable. Very often, too, one can go to the judge and gain an indication as to what would be the appropriate sentence on the basis of an agreed set of facts.

There probably is merit in some statutory or quasi-statutory framework, and there are one or two things that have to be provided for within such a framework. First, there must be some provision whereby a defendant’s interests cannot be prejudiced. I have known of a number of cases where defendants have been advised of the desirability of pleading guilty, have indicated a willingness to do so, and then start ratting on the deal. Everybody is rather shafted by that process, so one does have to address it so that the defendant is not misled and, incidentally, other people are not prejudiced by the defendant subsequently ratting.

It is also very important to ensure that there is an agreed basis for the plea, and the process has to be worked out. If necessary, there may have to be what is referred to as a Newton trial or a Newton process to determine the basic facts. That needs to be provided for in the regulations, as does a process whereby the judge is brought into the discussion so that he can give a fairly binding indication of what the appropriate sentence would be. Those matters all have to be addressed by the regulations, and other criteria too may need to be incorporated, but that there should be a process of pre-trial plea bargaining seems quite plain. I see no reason why it should be confined to terrorism, and it is probably a good thing to give it a quasi-statutory basis, and I commend the motion to the Committee.

Tony McNulty (Labour, Harrow East)

I, too, am rather disappointed that the hon. Member for Newark is not here because I know that this is a subject that exercises him. There may be some merit in exploring it further, but not in the context of this new clause. As the right hon. and learned Member for Sleaford and North Hykeham has said, either it rather lamely describes what already prevails, in circumstances such as R v. Goodyear, or—I am not sure whether this is in the mind of the hon. Member for Newark—if it aims to allow prosecutors to accept a plea on a lesser charge than is justified by the alleged offending, the new clause is objectionable in principle. If he is trying to go for the full-on American-type system, as I described earlier, we object to it in principle.

The right hon. and learned Gentleman will know that we are looking closely at the results of a plea negotiation framework for fraud cases, which is quite separate from this Bill. If that comes up with any ideas in the area of plea negotiation that we think will be useful in combating terrorism, we will take them forward. He quite reasonably says that there is already a plea negotiation process in our due process and I am not sure how much beyond that the hon. Gentleman was seeking to go.

I will explore the idea further, taking into consideration the framework for fraud cases. I do not know whether I will be able to say anything further on the matter on Report, but it may well be in the Committee’s interests for the motion to be withdrawn. Perhaps the hon. Gentleman will be allowed to enlighten us on Report. I have some sympathy with the thrust of the new clause, but I do not agree with the intent as it has been perceived in the hon. Gentleman’s absence. I ask that the motion be withdrawn.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I shall withdraw the motion and I hope that my hon. Friend the Member for Newark will have an opportunity on Report to deal with the matter. I will, however, make two brief comments. First, I do not dismiss as rapidly as the Minister the proposition that one should be able to accept a plea for an offence less than that which the evidence discloses. There is sometimes merit in accepting pleas for lesser offences. Never forget that by doing so one is sparing witnesses the trauma of giving evidence and saving a huge amount of money. It is sometimes pretty artificial whether a person is charged with A or B. There is a discretion and sometimes there is merit in not charging for the maximum offence. I hope that the Minister will not be quite so dismissive of that proposition.

Secondly and differently, while I welcome the fact that plea bargaining considerations are taking place in the context of fraud cases, I hope that the Minister will not turn his face from widening the scope of any changes that are brought forward to include offences other than fraud. Truth to say, while fraud is a recognisable category, the issues revolving around fraud, other than the evidential problems, are not in any sense sui generis. I would have thought that if one was going to approve a process for plea bargaining in relation to fraud cases, it is very difficult to see why it should not be extended across the spectrum of criminal law. I hope that he will take a rather more flexible approach than his intervention indicated. Subject to those two observations, I beg to ask leave to withdraw the motion.

New Clause 13

Dominic Grieve (Conservative, Beaconsfield)

I beg to move, That the clause be read a Second time.

This is the last of the new clauses that we have to consider. It follows on in many ways from the debate that we had on Tuesday so I need not take up too much of the Committee’s time. It offers the Government the opportunity to look at a formula that provides, by relatively minor tweaking of the Bill, for the Secretary of State to make an application to the Lord Chief Justice for an inquest to be held without a jury rather than a certificate being issued, as is proposed by the Government. I hope that in the 48 hours since we last debated this matter, the Minister will have been tempted into a greater understanding of how important it is that any changes to the coroners inquest process to allow the use of intercept and intelligence evidence should be subject to judicial discretion.

If the Government are right—and the Minister made a powerful case on Tuesday—as to the necessity in some cases of abandoning the current inquisitorial system with a jury because of the advantage of putting material in front of a coroner that will be conclusive and very helpful, at least to the coroner coming up with the right answers to what happened, then persuading a court of the necessity of departing from the current practice, appears to be the absolute foundation for doing that.

I am perfectly satisfied that the Government may be able to tell me, even today, that the new clause is flawed in a number of technical respects—for which I can only apologise, I did my best to redraft it as I could—it nevertheless allows for such a model. If that model were also linked to the obvious safeguards—which we were asked for but which I have not sought to tackle in new clause 13—needed for the appointment of coroners themselves, that will already start to go a very long way indeed to meeting some of the anxieties expressed. I obviously reserve my position on this as to whether we would have to continue our opposition.

I am aware that there is one area in the course of the passage of this Bill—42 days pre-charge detention—where I suspect that a meeting of minds will remain absolutely impossible for a variety of reasons. But I have to say that on this matter, which in a sense took us by surprise, there is a danger of there being substantial disagreement leading to us seeking to remove this part of the Bill entirely on Report. Certainly I wonder whether it will survive in the other place in its present form—I think it most unlikely. The Government will have to take urgent steps to persuade the House of Commons, and ultimately to persuade the House of Lords, that the changes they are bringing about have adequate safeguards and will not prejudice the complete review in the course of the coroners Bill, which, since the Prime Minister’s announcement yesterday, we now know we are going to be getting next year. It would be much better if all of this could be put off until the coroners Bill, particularly in light of what the Government have said. In that case, I would urge the Minister not to go down the road of new clause 13, but simply to take the opportunity on Report to remove the references to inquests in the Bill with an assurance that the House will return to the matter in the course of next year. That would be my preferred course. I have been trying to show the Minister a common road that we can follow, because I am mindful of the fact that the Minister has raised an important issue here, and the Home Office briefing made me realise its importance. At the same time, the protections afforded by coroners inquests and juries should not be allowed to be forfeited or removed lightly.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I rise to support new clause 13. I really have only three observations to make. First, I agree with what my hon. and learned Friend the Member for Beaconsfield said about the coroners Bill. The changes in this part of the Bill are much better placed in the context of a coroners Bill and I would be content if we did not deal with it in this Bill at all.

Secondly, and differently, for the reasons that I previously advanced earlier, I do not believe that the public will ever be content with a process whereby the Secretary of State, acting alone and through certificate, can prevent a hearing before a jury. I do not think that the public will accept that, and I think the public would be right not to accept it. That being so, if we are going to go down this road at all, we have to find some other process whereby the certificate is issued.

I believe—it was in my amendments that we discussed some time ago—that the role of the Lord Chief Justice would provide the necessary reassurance. I think my hon. and learned Friend the Member for Beaconsfield is to be congratulated on the way in which he has drafted his new clause, subject to the third point that I am going to make.

I find it very difficult to believe that I will ever be persuaded that the phrase “otherwise in the public interest” should form part of the criteria. We debated this some time ago when I set out the reasons why I am against it and I will not repeat them today. It is far too wide.

Dominic Grieve (Conservative, Beaconsfield)

I agree with my right hon. and learned Friend. Having tabled the new clause, I rather regretted that I had not sought further to change the original text.

There are strong arguments, particularly in the context of this debate, for the criteria to be either the interests of national security or some other overwhelming reason, given the need to allow intercept evidence to be adduced. The criteria should include nothing else, and certainly not the interests of the relationship between the United Kingdom and another country, which has always struck me as one of the more bizarre aspects of the proposal.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am grateful to my hon. and learned Friend for making that point. We are as one on this matter.

I hope that the Minister will take the matter away and examine whether another formula can be arrived at, either for this Bill or the coroners Bill. I, and I suspect most of my party, have enormous difficulty with any proposal that allows the Secretary of State to issue the certificate or which allows such criteria.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I remind the Committee that the Attorney-General’s general guidelines in respect of every prosecution contain a public interest element. Why do we need the provision expressly in the Bill? It seems unnecessary. Are we to take it that there are different sets of public interest considerations from the ordinary ones of the Attorney-General’s guidelines?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I suspect that the answer is that once the provision is in the Bill it is capable of a wider interpretation. The point is fairly raised, but I do not know the answer. Perhaps the Minister does. The phrase is very wide and, as it has such dramatic consequences, I would be reluctant to give it any kind of tacit support.

David Heath (Liberal Democrat, Somerton and Frome)

I was going to say that we had already debated this new clause and therefore it was unnecessary to replicate the arguments, save for a reservation, which the right hon. and learned Member for Sleaford and North Hykeham has now expressed. I still cannot be doing with subsection (1)(b) and (c)—I regretted that it was included in the new clause, but apparently the hon. and learned Member for Beaconsfield does too, so we are at one.

As the hon. and learned Gentleman has said, we are capable of finding a resolution on this issue if the Government are so disposed. If we do not, it is unlikely that the provision will make it through both Houses. There is still the option of using the coroners Bill as the vehicle, which will occasion a delay, but perhaps not an insurmountable one.

If we want to go ahead now, two issues need to be addressed. One is the certification by a Secretary of State that a matter can be held without a jury without judicial oversight or involvement. The second, which I find reprehensible, is the suggestion that a Secretary of State should appoint a special coroner, rather than the appointment being subject to judicial independence.

If we can deal with both issues—the hon. and learned Gentleman’s new clause deals with one of them—then we are a long way towards a meeting of minds. I hope that the Minister will accept the spirit of the new clause as proposed and supported from the Opposition Benches, and that he will find a suitable resolution.

Tony McNulty (Labour, Harrow East)

No, I do not accept it, but I appreciate that this mini-debate and our debate on Tuesday have shown that the Committee recognises the need for a resolution. I said then that I would take away part 6 and have a look at its architecture, and that must continue to be my refrain. I take very seriously the notion that we should be able to move forward on a consensual basis. I am told that there is at least one and possibly other compelling cases that mean that we should do this now rather than wait for the now publicly flaunted coroners Bill in the next Session.

I also made the point—I am not sure whether it was in Committee or outside it—that were something of that order to pass in part 6, a very strong link would be made to it eventually being subsumed into the coroners reform Bill. That is perfectly logical. I am up for getting us all to a stage where, having agreed that there is an issue, we can overcome it. I will reflect on this and other sections of part 6 and potentially discuss them further with Committee members before Report.

In that context, I ask that the new clause be withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I look forward to hearing in due course how the Minister intends to tackle this difficult problem. I beg to ask leave to withdraw the motion.

New Schedule 2

New Schedule 3

Tony McNulty (Labour, Harrow East)

I beg to move, That certain written evidence already reported to the House be appended to the proceedings of the Committee.

That is another contentious move, but it gives me the opportunity to thank you, Mr. O’Hara, for your time as Chair. Your patience and indulgence—not least of me as the Minister—have been very well received, and I am very grateful for them. May we, through you, send our best wishes to our other Chairman, Mr. Bercow, who, when he was with us, was just as excellent? I am sure that the entire Committee would endorse that fully, especially the hon. Member for Reigate. We also wish Mr. Bercow well because, on the days when you have been chairing our proceedings, he has been enjoying paternity leave with the third addition to his family, and we wish him the very best with that.

I apologise again to the Committee for my little breakfast tantrum, because the hon. and learned Member for Beaconsfield was entirely right. Despite the import, substance and, sometimes, contention of our proceedings, they have been carried out in a very temperate and well-mannered fashion, for which I am enormously grateful to everybody. The hon. Member for Somerton and Frome has shown that he is a deadly loss to the Liberal Democrat Front Bench. He has done a very good imitation of a Front Bencher and a Back Bencher during our deliberations, while his hon. Friend the Member for Carshalton and Wallington has done a very good imitation of a no Bencher, since he has not been with us for much of the deliberation. [Interruption.]

Edward O'Hara (Labour, Knowsley South)

Order. The Minister is trying to be nice.

Tony McNulty (Labour, Harrow East)

That was perfectly deliberate and nothing to do with the absence at lunch at all, and I stand by that remark entirely.

I am grateful to the Welsh guy, as he shall now be known, for his short, pithy, good-humoured and overwhelmingly productive contributions. It is a great credit to his micro-party—[Interruption.] I do not mean on local government in Wales.

During our deliberations, the most significant role that the hon. Member for Gravesham played was as a Tory splitter. He defied the Whip and decided that the future of British politics lies with the right hon. and learned Member for Sleaford and North Hykeham, rather than with his Front Bench, and I wish him well in that judgment. It was such a memorable and significant split that I cannot remember what the headlines were, but I remember the no vote. I thank the hon. Gentleman for his subsequent no vote—I am sure that that pregnant pause between the “no” and the “vote” will not be reflected in Hansard as meaning quite what it did to the Committee.

I thank the other two ex-soldiers, who are not with us today—the hon. Members for Lancaster and Wyre and for Newark—for colouring our deliberations with their contributions. Perhaps unusually for politicians on Committees, they made significant contributions when they could and shut up when they had nothing to say, which we were grateful for—the first point, not the second. That was good of them.

The rather strange contributions made every now and then by the hon. Member for Monmouth were entertaining, although not as informative as those of his Welsh confrère. We now understand that the Tory policy, at least in Monmouth, is to have a Taser in every household and compulsory target practice for the under-60s, or something of that order. I am not entirely sure, but maybe he was making a bid to replace the outgoing right hon. Member for Maidstone and The Weald (Miss Widdecombe) with regard to toughening up the law and order team on the Conservative Front Bench. I wish him well in that endeavour, because the notion that he might adorn the Conservative Front Bench as a law and order and Home Office spokesman cheers us up enormously. The sooner that can happen, the better.

Let me say to the Conservative Front Bench that things have been done in an overwhelmingly effective and efficient fashion through the usual channels. The hon. and learned Member for Beaconsfield has given an excellent display, once again, of his knowledge, good manners, astuteness, erudition, and of course his efficacitÃ(c) as a member of the Conservative Front Bench. I thank him for his courtesy and kindness. It is always a pleasure to appear opposite him.

Although the Under-Secretary of State for the Home Department, my hon. Friend the hon. Member for Gedling was not called upon much, I am grateful in many different ways that he was here, because it helps enormously. It almost helped this morning, and perhaps it should have done, given my fit of temper. I am grateful that he was here to be called upon should the necessity arise. When someone asked me why there were two Ministers on the Committee, I said rather unkindly that it was better than being fitted with a catheter, and that is at least part of the reason—nature calls at the most inappropriate times, although not terribly much in this case. I am also grateful to him for all his background work on the Bill before it came to Committee.

I am grateful to all my hon. Friends for their contributions, not least during the evidence sessions. The questioning of witnesses was done well by everyone concerned, and it collectively gave us a good deal of information, for which I am enormously grateful. With as much grace and courtesy as I can, I thank everyone on the Committee for their contributions and deliberations. I hope that we stay as courteous, and move towards consensus—which I certainly remain convinced should not escape us—in terms of every single aspect of the Bill.

My last point is quite deliberately left to the end. I thank very much my hon. Friend the Whip—if I do not, he will kill me—who has kept us in order and has done it very well and in substantial fashion. Apparently—this is getting like a wedding now—I am supposed to thank the photographers—[Interruption.] I thank my officials, and I will thank them in another way once they get the whole Bill through—not now. I thank the police, Hansard and everybody else who has helped us with our deliberations.

Dominic Grieve (Conservative, Beaconsfield)

I am happy to support the motion and I shall not dwell on it at any length at all. I echo the Minister’s appreciation of yourself, Mr. O’Hara, and also of Mr. Bercow, for chairing our Committee proceedings. I also echo the Minister’s thanks to all the officials and the Clerk of the Committee, who have helped to make these proceedings so easy. This is the first time that I have served on a Committee with evidence-taking sessions, and the first time that I can recall having had departmental briefing sessions during the Bill’s passage. All those seemed to me to be useful and productive, and also provided an opportunity for the involvement of all members of the Committee in its proceedings, which has not always happened in the past.

I would also like to thank the military contingent who have backed me up from the Back Benches in the course of these proceedings—my hon. Friends the Members for Gravesham, for Newark and for Lancaster and Wyre, who came on to this Committee precisely because they wished to provide their specific experience—particularly in security matters—for which I am very grateful.

I am also grateful to my hon. Friend the Member for Monmouth. I remind the Minister that there was once a time when, for the security of the realm, particularly in counties such as Monmouthshire where Welsh archery originated, it was compulsory to practise at the butts with one’s bows and arrows—so substituting Tasers may only be a technological development, and nothing more. They started them young.

I also thank my right hon. and learned Friend the Member for Sleaford and North Hykeham, who has brought his legal expertise and long experience as a Member of this House to bear on the proceedings of this Committee, and my hon. Friend the Member for Reigate, for helping facilitate the proceedings.

I hope I will be forgiven if I do not do a round. I am grateful to the Liberal Democrats and to the hon. Member for Meirionnydd Nant Conwy for his input. I was greatly cheered during the course of the proceedings when the hon. Member for Nottingham, East, of whom I have long experience as the silent person in Committee when he was a Whip, succeeded in showing us that being deprogrammed from being a Whip is a very difficult thing, when his instinctive reaction to the suggestion that anybody might be voting aye to an amendment was to object to it automatically, thereby showing that his ability to keep abreast of the proceedings and to intervene at the right moment before something terrible happened has not been lost at all on his return to the Back Benches. With those remarks, Mr. O’Hara, and again with thanks to yourself, I am happy to support the motion moved by the Minister.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I would of course like to support the Minister’s motion, which we are debating in a round-about way. I would like to thank you, Mr. O’Hara, and Mr. Bercow, for your roles in ensuring that our proceedings have been conducted in a fair and considered manner. I also welcome the fact that it is possible for Mr. Bercow to go on paternity leave: that is a positive development in itself.

The Minister has dispatched the Bill with efficacitÃ(c)—an oft-used word—and he has displayed some emollience, although there was a lapse this morning followed by another this afternoon, which I thought uncharacteristic of him.

I have a word of advice for the Under-Secretary of State for the Home Department, the hon. Member for Gedling, who has played a supporting role. If my children are getting tetchy after a long day at school, a chocolate biscuit and a drink usually do the job, so I recommend that he comes armed with those in future. [Interruption.]He should ensure that he has those on his person in future.

I have watched with admiration the Labour Whip, who has managed to contain any Back-Bench rebellions with such ease. It was clearly a real struggle. There was no hand-picking of the Back Benchers who sat on this Committee.

A consensus has emerged on certain issues, such as post-charge questioning and intercept evidence. However, it is very clear that we will have to return to the issue of pre-charge detention because no common ground has been identified. We will organise in support of the official Opposition, other parties and Labour Members who are not represented here to ensure that the right thing is done on the argument of 28 versus 42 days.

I am very pleased with how our proceedings have been conducted, Mr. O’Hara, and that we have finished on time.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Briefly, on behalf of my micro-party, which is in government in Cardiff, I congratulate you, Mr. O’Hara, and thank you for shepherding the Committee through the last couple of weeks. I also express gratitude to Mr. Bercow.

On the Minister’s profuse apology for his alleged behaviour this morning, I tell him that I have seen far worse. I once had a colleague who was very badly affected by lack of food on occasion, such that he ended up with the unfortunate nickname of Nosebag. I caution the Minister against making any public utterances about that again.

Our debates have been informed and both sides have consistently tried to engage constructively. That is not always the case in Public Bill Committees. Despite the vehement differences of opinion on various provisions of the Bill, they were expressed in good part, with good humour and hon. Members were genuinely respectful of other people’s views. This has been a worthwhile experience, which is often not the case in such Committees.

Edward O'Hara (Labour, Knowsley South)

In making my remarks from this end of the floor, may I say that my co-Chairman, Mr. Bercow, has taken a major share of the chairmanship duties in terms of time and the difficulty of the business, a distribution of duties that was entirely dictated by his happy family circumstances, and I will pass on the remarks that have been made to him.

Starting at this end of the Floor, I thank Hansard, which I am sure has kept a correct record of the occasional spoonerisms that Chairmen commit. I thank the Clerks at my elbow for their constant assistance. On my right, those who are seen but not heard have conducted themselves with exceptional dignity and propriety in this Committee, unlike in other Committees sometimes.

In referring to the members of the Committee, I run out of complimentary adjectives. This has been a very impressive Committee to chair in terms of the general mastery of the briefs on both sides—disciplined, restrained, with an avoidance of repetition, succinct, constructive, courteous, respectful, with give and take, and constant good humour. That has led to a high level of debate, as befits the seriousness of the subject matter before us, and has made it easy for me to conduct the efficient dispatch of our business.