Counter-Terrorism Bill

– in the House of Lords at 4:59 pm on 4th November 2008.

Alert me about debates like this

Votes in this debate

Consideration of amendments on Report resumed.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 5:20 pm, 4th November 2008

moved Amendment No. 5:

After Clause 22, insert the following new Clause—

"Independent Commissioner for Terrorist Suspects

Independent Commissioner for Terrorist Suspects

(1) The Secretary of State shall appoint a person to be known as the Independent Commissioner for Terrorist Suspects (the "Commissioner") and such appointment shall be subject to the approval of the Lord Chief Justice, and shall be on such terms as to length of service and remuneration as the Secretary of State shall determine.

(2) The principal function of the Commissioner shall be to monitor the detention and treatment of terrorist suspects held under section 41 and Schedule 8 to the Terrorism Act 2000 (c. 11).

(3) In order to fulfil his functions under this section, the Commissioner shall be entitled to visit Paddington Green Police Station, and any other place of detention where terrorist suspects are held, so as to ensure that the questioning of suspects is being carried out diligently and expeditiously, and in accordance with the provisions of Schedule 8 and PACE Code H.

(4) Such visits shall take place at the discretion of the Commissioner and may be unannounced.

(5) The custody officer shall inform the Commissioner within 24 hours of a terrorist suspect being detained.

(6) The police shall give the Commissioner such assistance as he may reasonably require so that he can fulfil his functions under this section.

(7) The Commissioner shall be entitled to interview terrorist suspects with their consent, and may require such interviews to take place in the absence of the police and he may also attend interviews conducted by the police.

(8) The custody officer shall inform the Commissioner whenever the police are to make an application for the extension of the period of detention and the Commissioner shall be entitled to be present at the hearing before the judicial authority in order to give him such assistance as he may require.

(9) The Commissioner shall make an annual report to Parliament as to the carrying out of his functions under this section."

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I expect the House will know that if the police wish to detain a terrorist suspect for more than seven days, they must make an application to the judge, or the judicial authority as he is called in Schedule 8 to the Terrorism Act 2000. If the judge is satisfied that the police are getting on with the investigation in the way that they should, he may extend the time from seven to 14 days and thereafter from 14 to 21 days and ultimately to 28 days. That is fine as far as it goes; it is the judge who decides. However, there is a weakness in the system because the judge has very little to go on other than what the police tell him. No doubt the police will explain the difficulties that they are facing and say that they are getting on as fast as they can, but there is no way at present in which the judge can verify what he is being told. The object of the amendment is simply to fill that gap. It may seem a small gap, but I suggest that it is a serious and important one. There are a number of reasons for that. It is a fact that in terrorist cases a far higher proportion of suspects are released without charge than in other criminal cases. One wants to know why that is and what the reasons could be, and one wants to keep a watch on that. Even in cases where suspects are ultimately charged, up to a week will often go by before anything incriminating is put to them at all. During all that time they are left in doubt about why they have been arrested. There is anecdotal evidence that in the airline case, known as Operation Overt, there was sufficient evidence in relation to two of the suspects, who were charged only after 28 days, to charge them after 14 days, which is when, if that is true, they should have been charged. So there is indeed a job for an independent commissioner to do.

Before continuing, I should apologise for not having tabled an amendment to this effect in Committee, although I mentioned it at that stage. However, I do not think that the amendment will come as a surprise to the noble Lord, Lord West, because I mentioned it to him as long ago as last summer, or even perhaps the summer before—it is difficult to remember how these things proceed—when the Home Office was looking for material to put into its new terrorism Bill. Indeed, I raised it in the House and the then Leader of the House said that it was just the sort of idea that the Government were looking for. That is perhaps not a lot to be going on but it is at least something. The virtue of the amendment is that it is based on something that has already been tried and tested in Northern Ireland.

In 1992, the noble and learned Lord, Lord Mayhew, who was then Secretary of State, appointed Sir Louis Blom-Cooper to be the first independent commissioner for the holding centres in Northern Ireland. The holding centres were places such as Castlereagh, where terrorist suspects were then detained. Of course, there were differences in Northern Ireland, but everyone agrees that that appointment was a great success and that it actually worked. It continued year after year until after the Labour Government had taken office in 1997.

The amendment is based almost word for word on Sir Louis Blom-Cooper's terms of reference, but there are some important additions, which have been suggested by Professor Clive Walker of the University of Leeds, who is the leading academic authority on terrorism. Indeed, as long ago as 1998, he suggested extending the jurisdiction of the independent commissioner for the holding centres to England and Scotland. Incidentally, he also pointed out that there has been a commissioner for detainees in South Africa since 1982, so there is good precedent for what I am proposing.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, I am very grateful to the noble and learned Lord for giving way. What is the intended territorial jurisdiction of the amendment? Does it intend to cover Northern Ireland and Scotland as well as England?

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, that is a very sound question. I am proposing the amendment in relation to a single commissioner who would cover all three jurisdictions, but it may well be the position if the amendment were accepted that we would require separate commissioners for each of the jurisdictions.

What are the objections to the amendment? Two objections have been put forward by the noble Lord in his recent letter. The first objection was that there is already an independent reviewer of terrorism legislation, in the shape of the noble Lord, Lord Carlile, who is not here today. The new commissioner's job would be quite different. He would not be advising the Government on terrorism legislation; he would be making sure on the ground that the police were getting on with their investigation. Unlike the noble Lord, Lord Carlile, he would not be reporting to the Government after the event. He would be reporting before the event to the judge who was granting the extension on whether to extend the period of detention.

There is another reason why a new appointment would not duplicate the work of the noble Lord, Lord Carlile. Terrorist prisoners are often transferred from Paddington Green to prison after 14 days. The noble Lord, Lord West, says that that is all right because they would then be subject to the oversight of Her Majesty's Inspector of Prisons. With respect, that misses the whole point, which is to have someone who will follow the case right through from the moment the suspect is arrested to the moment when he is charged. To split the job between the noble Lord, Lord Carlile, and Her Majesty's Inspector of Prisons would not be a sensible way ahead, if indeed it would even be feasible.

The second point made by the noble Lord in his recent letter is equally wide of the mark. He said that the suspect's own lawyer would be present at the application to extend the time, and he could cross-examine the investigating officer to challenge the application "rigorously". I think that is the word that he uses. The short answer to that is that the suspect's own lawyer, however rigorous he might be, would not have access to the closed material without which effective cross-examination would not be possible.

I invite the House to accept the amendment, which would fill a small but important gap in the present scheme of things. It would also do more than anything to reassure ethnic minorities that when suspects are detained the police are complying with their obligations under the law. That must be a desirable objective. I beg to move.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs 5:30 pm, 4th November 2008

My Lords, we support this important amendment. The noble and learned Lord said that the gap may be small, but it is important. There is a lacuna in the current system of real-time monitoring. The noble and learned Lord mentioned that the noble Lord, Lord Carlile of Berriew, reports annually on the operation of relevant counterterrorism legislation, which is obviously an ex post facto activity. The importance of the amendment is that it would enable monitoring in real time. Real-time monitoring would result in the capacity for input into the way in which hearings are conducted and decisions to extend pre-charge detention are made.

There is currently no oversight of the practical operation of the relevant codes of practice, and the same is true of independent custody visitors. Given the significant concern about the nature of closed hearings which decide whether to extend pre-charge detention—and it should be remembered that in a closed hearing, there is no capacity for external consideration—an independent assessment and an assurance from an individual who would be entitled to have, and would have, intimate familiarity with the developing case would be particularly valuable.

The amendment has the advantage, as the noble and learned Lord, Lord Lloyd, said, of being based on practical experience of an extremely relevant kind in Northern Ireland. This is not an untried idea. Given that the extension of pre-charge detention from 14 to 28 days is already an exceptional power, it is important to put in place appropriate monitoring, because we are already facing an important departure from normal practice.

My final point is that the amendment would reassure the public, particularly minority groups, that suspects are not being held unnecessarily—the noble and learned Lord started with that point—and that the charge would come at the right moment. That would mean that the power would not be suspected of being used in an oppressive manner.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, anyone who heard the noble and learned Lord, Lord Lloyd, would not be surprised that I strongly support the amendment. He generously referred to my paternity of it. In a display of equal generosity, I must acknowledge that the paternity is shared, because when I started in Northern Ireland in 1992, I picked up a recommendation of the noble Viscount, Lord Colville of Culross, who is in his place, that there should be independent monitoring of the three holding centres in Northern Ireland. In the middle of August that year I asked Sir Louis Blom-Cooper to undertake a task of that character, which he generously accepted. In December that year, I appointed him, and was able to do that administratively by announcing it in an Answer to a Written Question.

I support the amendment, because it serves at least two desirable objectives. The first is the avoidance of any oppression or unfairness by police who are holding suspects of terrorist offences in exceptional circumstances. That has to be the first objective. The second objective is that the amendment would forestall, or go a very long way to forestalling, at a subsequent trial any bogus allegation raised to the effect that there had been unfairness in the rendering of a confession statement, which would be inadmissible evidence.

In Northern Ireland, although the same is true here, such allegations were very common; one might even say that they were standard in terrorist centres. On each occasion it was necessary thereafter to try that issue in a trial within the trial, which for some reason that, I dare say, is familiar to lawyers in this House—although I have never got to the bottom of it—was known by its Norman French name of a voire dire. That could typically take as much as 20 days to determine, with evidence and counterevidence going back and forth, which held up the trial and added considerable expense.

What was needed was some objective, impartial evidence to corroborate the evidence of the interrogating police which could not be gainsaid. There was strong judicial support for an innovation of that kind in Northern Ireland. That was why we went along the road that has been described. Sir Louis took on, and was assisted by, a deputy, Dr William Norris, who is a psychiatrist. Their terms of reference, as the noble and learned Lord, Lord Lloyd, said, are to a considerable extent replicated in this amendment.

I spoke to Sir Louis today. The proof of the pudding is that he confirmed to me that after his appointment, for the eight years that he held the post in Northern Ireland, there was made no single complaint of impropriety having occurred in the course of interrogation in the centres, which would have led to a voire dire during the subsequent trial. Questioning or behaviour alleged to have taken place in the police car after an arrest remained a very different matter. However, the lack of complaints was an extraordinarily effective consequence of the innovation. Video and audio recording were introduced later, and we shall deal with those matters in a later amendment. In his first report, Sir Louis recommended video and audio recording—it was possible to include them some time later—which were a much better vehicle for securing justice in the context that I have described.

I should perhaps have added a third beneficial objective: the reassurance of the public, who very properly are suspicious and anxious about the kind of powers that are necessarily conferred by the various anti-terrorism Acts. The public would be reassured that no unfairness characterised the detention of terrorism suspects before or after being charged in a detention centre, which, in England, is at Paddington Green.

Annual reports were laid before Parliament. Anyone who knows Sir Louis Blom-Cooper will not be surprised to learn that they were extraordinarily detailed, balanced, fair, diligent and impressive. Sir Louis very quickly secured in a series of unannounced visits, sometimes at 2 am or 3 am, the confidence of all concerned in the administration of this aspect of justice.

Therefore, there are sound reasons for following that precedent and I very much hope that the Minister will think again before he insists on opposing the amendment for the reasons mentioned by the noble and learned Lord, Lord Lloyd.

Photo of Viscount Colville of Culross Viscount Colville of Culross Crossbench

My Lords, I take this opportunity to recollect an unannounced visit that I made to Castlereagh with Sir Louis. At the time, I was the reviewer of the legislation and I reported to the noble and learned Lord, who at the time was the Secretary of State. There was a profound difference between my function and that of Sir Louis. I reported retrospectively after quite a long time had elapsed, whereas Sir Louis went while the investigation was still going on. That was the fundamental difference in our roles. He could see what was happening in the holding centre and, if anything was wrong, he would see it on the spot at the time. I could not correct it later in the annual report that I presented to Parliament any more than the noble Lord, Lord Carlile, can do today, and therefore I support what my noble and learned friend Lord Lloyd has suggested.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

My Lords, it is a privilege to follow two noble Lords with such experience in this area. I am taken back to the days of the voir dire, which led to a cottage industry in my profession. Particularly in Hong Kong, as I recall, six or seven weeks would be spent on the voir dire in determining whether a confession had been properly obtained.

The illustration of the point made by the noble and learned Lord, Lord Lloyd of Berwick, is as follows. When we discussed the 42-days issue, it emerged that no judge had ever refused an application by the police to extend the time allowed under the terrorism legislation. I think that there was one instance when a few days less than that asked for had been ordered by the judge but, by and large, the judge has nothing before him except the application from the police or security services saying that it is essential to continue the line of questioning. There is nothing to check at all. A person such as the commissioner, as the noble and learned Lord, Lord Lloyd, advocates, would be in a proper position not only to monitor the way in which the prisoner was being held, particularly in a police station, but to ensure that any interrogation was necessary, giving a second, independent voice to the judge, who has to make the decision on whether the period of time is to be extended. That is the value of the amendment and it is why we on these Benches support it.

Photo of Lord Dear Lord Dear Crossbench

My Lords, I should point out to noble Lords who are not familiar with Latin or Norman French that this is not another example of voir dire; the spelling is rather different.

I shall be very brief in supporting the amendment. The case has been admirably set out by my noble and learned friend Lord Lloyd. Three reasons for supporting him are present in my mind: the amendment obviates any suggestion of oppression; it obviates the false allegations, of which we have heard plenty already; and it is patently fair—almost transparent, one might say—and would give huge reassurance to the general public, not least to minority groups. In addition, the costs would be marginal compared with the gains that would be made. I support the amendment.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I am very pleased that the noble Lord, Lord Thomas, reminded the House that no judge has refused a police application. On the JCHR, we heard evidence of quite short periods of interrogation and of very long periods of languishing in cells during the extended time. I suspect that, if the amendment were accepted, the process could even pay for itself by speeding up the interrogation time, leading to either earlier charging or earlier release, because it would have the effect of making the police act more diligently. I am not criticising the police. If people are given chances to do things, they will always take them. That is part of human nature; it is how people behave. I support the amendment for that reason and, above all, because it would avoid allegations of people being beaten up behind a bike shed and so on, which people would undoubtedly make if there were not open and transparent supervision. It would make it easier to get convictions and proper interrogation, and it is in everyone's interests that the amendment is agreed to. We are not asking for a vast sum to be spent; we are simply asking for something which, I suggest, will make life easier for everyone.

Photo of Baroness Manningham-Buller Baroness Manningham-Buller Crossbench

My Lords, I support the amendment but I wish to make a couple of comments—one in defence of the police. It has absolutely not been my experience that they are in any way dilatory in interrogating terror suspects, which often involves the collation of vast amounts of information. They work at great speed under enormous pressure, doing hours that break every EU working time directive. Therefore, I should like to defend my colleagues. That said, I think that the amendment of the noble and learned Lord, Lord Lloyd, is useful.

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords, Home Affairs 5:45 pm, 4th November 2008

My Lords, the point made by the noble and learned Lord, Lord Lloyd, about restoring—or perhaps "building in" if "restoring" is inappropriate—confidence in ethnic minority communities is extremely valuable. We know that one particular community—the Muslim community—is, on the whole, the subject of much of the plethora of terrorism legislation that we have seen in the past decade or so, and deservedly so because that is where part of the problem lies. I do not think that anyone in this debate is inferring that the police are at all dilatory in carrying out their functions. In order to build in confidence on the part of the community in the criminal justice system and in this particular system, there should be transparency, and the people who are held for long periods without charges being laid against them should be aware that an independent person is keeping an eye on things as they unfold and they should know that they have access to that person should anything untoward occur. Of course, that does not imply that anything untoward would occur but it would build in a safeguard. On that basis, I add my voice to those of others on these Benches in supporting the amendment.

Photo of Lord Goldsmith Lord Goldsmith Labour

My Lords, I want to raise one issue. The noble and learned Lord, Lord Mayhew of Twysden, made some very powerful points but I think that there is an element of misunderstanding. The noble Lord, Lord Thomas, talked, as did other noble Lords, about the police making the applications and not acting swiftly enough. One thing that we did when the time was extended from 14 to 28 days was make it clear that applications for extra time should be made by the prosecutors. The prosecutors have a professional responsibility—although I am not saying that the police do not—to come to the judges to say, "This is necessary. This is being conducted with due diligence". They are the people who have to take responsibility and make the applications. That is one aspect of this issue. It does not meet many of the other points that have been made but, in fairness to those who made them and to the police, I thought that it was right to draw that to the House's attention.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, as I understand it, the purpose of the amendment is to introduce an independent commissioner principally to monitor the detention and treatment of terrorist suspects held under Section 41 and also to be present at police interviews, monitor their compliance with relevant safeguards, and interview suspects and so on during the proceedings.

I step into this debate somewhat nervously, bearing in mind that we have had a triumvirate, if not a quadrumvirate, of noble and learned Lords, many of whom seem to have been involved in setting up this apparatus for Northern Ireland at some time in the past. I bear in mind that in 1650 on this day HMS "Black Prince" was burned by parliamentarians, and so it is not an auspicious day in that sense.

I think that there is already very adequate independent scrutiny of those detained before charge. I should like to run through what is in place because it is important. It is true that the amendment would have significant cost implications and that there would be an increase in bureaucracy. Almost certainly because of jurisdictions, there would be three independent assessors, plus the noble Lord, Lord Carlile, and no doubt they would want some staff. Therefore, I think that there would be some considerable costs. However, these things can be got round and, if it is really important, it can be done.

It is worth stating what is already done to look after those who are held in custody awaiting charges on a terrorism offence. It is important to get that into Hansard. As has been said, some of the minorities might feel that they are not looked after well. Section 61 of the Police Reform Act 2002 already provides for independent custody visiting of persons held in police detention, including all detainees held under terrorism provisions. Under the Act every police authority is required to make arrangements for detainees to be visited by persons who are independent of the police and the police authority.

The Act formalised independent custody visiting, formally known as lay visiting, which had been established following the Scarman report into the Brixton riots in 1981. Not surprisingly, the independent custody visiting process developed with a clear and strong focus on public confidence. The reason why I make this point is that the key strength of independent custody visiting is the way in which it is founded on the engagement of the local community. Members of the local community are given access to the detainees in their local police station.

I wish to strengthen, rather than dilute, that important aspect. As we made clear in the PACE review consultation paper published on 28 August this year, we are looking to strengthen community engagement in custody and are working with the Association of Police Authorities and others to look at how best to raise the status of independent custody visitors and other community members and draw on their knowledge and expertise to inform local and national change. Alongside that, we continue to work closely with the Association of Police Authorities and the Independent Custody Visiting Association in the provision of national guidance, training and support materials for independent custody visitors and police authorities who administer the schemes in their area.

Independent custody visitors can visit suspects, and their visits are random, unannounced and normally conducted out of hearing of an escorting officer. A report is completed after each visit and copies are provided to the police, the police authority and the Home Office. Those reports provide a vital source of information on the environmental and welfare conditions in which detainees are held. Although independent custody visitors cannot sit in on interviews with suspects, safeguards are already in place, in addition to the right to legal advice, to ensure that juvenile, mentally vulnerable—

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords, Home Affairs

My Lords, I thank the noble Lord for giving way. Could he share with us the statistics on the number of independent custody visitors who come from the same ethnic minority or religious group as most of those who are detained under these provisions?

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I do not have those statistics with me but shall certainly inform the noble Baroness of them in writing.

Taken together with the post of the independent reviewer of terrorism legislation and the other safeguards which I will come on to in a minute, I believe that we already have sufficient safeguards in place to ensure that detainees have appropriate support and that that supports effective community confidence in policing and engages the local community in scrutinising the detention of persons held in police custody. That is an important little strand of our prevention strategy and we must ensure that we reinforce it and make it even stronger.

Safeguards on the detention and treatment of terrorist suspects are set out in Schedule 8 to the Terrorism Act 2000. In addition, Code H of the codes of practice issued under the Police and Criminal Evidence Act 1984 covers the detention, treatment and questioning by police officers of persons under Section 41 of and Schedule 8 to the Terrorism Act 2000. This makes clear the need to ensure that appropriate and respectful treatment is provided to all detainees. Appropriate action is required to be taken to support the person; to help minimise any additional risk arising from their situation or vulnerability; and to provide appropriate facilities or materials to meet any specific requirements. Detained suspects have the right to legal advice; must be held in cells that are adequately heated, cleaned and ventilated; have the opportunity for exercise; may be visited by friends and family; have access to writing materials; are allowed the opportunity to practise religious observance; and are medically examined daily. As has been said, continued detention is subject to the authorisation of a senior judge at least every seven days.

In February 2006 the Home Office and the Association of Chief Police Officers, in conjunction with Centrex, now known as the National Policing Improvement Agency, published Guidance on the Safer Detention and Handling of Persons in Police Custody. The guidance identifies the standards expected in the handling of persons who come into contact with the police. It outlines the framework within which the police and other agencies must operate and sets the strategic mechanisms which should be in place to deliver the required outcomes. It aims to provide the practitioner with practical support, advice and direction in raising the standards of custodial care and enhancing the treatment of persons in custody. Implementation of the guidance in each force area is subject to oversight by the National Policing Improvement Agency, the Association of Chief Police Officers and the Home Office. In January 2008, an accompanying training package for custody officers was published.

Her Majesty's Inspectorate of Constabulary and Her Majesty's Inspectorate of Prisons jointly carry out inspections of police custody. The inspection process aims to provide a regime of planned inspections on the efficiency and effectiveness of police forces and the provision of custody facilities. Up to nine inspections will be carried out during 2008, and thereafter there will be a programme of inspecting custody suites in 10 force areas over the next five years.

As the noble and learned Lord, Lord Lloyd, said, suspects held beyond 14 days are generally transferred to prison where they are subject to oversight by Her Majesty's Inspectorate of Prisons. The purpose of HMIP is to provide independent scrutiny of the conditions for and treatment of prisoners and other detainees and its role includes unannounced inspections. The noble Lord, Lord Carlile of Berriew, in his capacity as the independent reviewer of terrorism legislation, also reports annually on the operation of counterterrorism legislation, including pre-charge detention.

The amendment proposes that part of such a commissioner's role would be an entitlement to attend extension hearings to give the judge such assistance as he may require. The noble and learned Lord, Lord Lloyd, mentioned ex parte hearings. They are not closed hearings and only a very small part is ex parte. They are also extremely rare; I think there have only ever been two such cases. I do not believe the provision is necessary because the suspect is entitled to his own legal representation. I attended one of these events and it was quite a ding-dong battle. The CPS, which is expert in investigatory proceedings, gave the judge all the information that it felt he required about how the investigation was proceeding and why further detention time was necessary.

The noble and learned Lord, Lord Lloyd, spoke about anecdotal evidence concerning a trial where people could have been charged much earlier than after 27 days had elapsed. I think that it is dangerous to use such anecdotal evidence and I do not believe that it is true at all. I have great faith that our police service proceeds as fast as it can to get to a charge. Although I can see that that view is not necessarily held by some noble Lords, my feeling is that the service does try to push forward as quickly as it can.

The information provided during extension proceedings through representations and evidence is extensive. The suspect's lawyer is able to cross-examine the investigating officer to challenge the application vigorously, as happened in the one that I attended. A senior judge oversees the proceedings and ensures that the tests for further detention are satisfied before any extension is granted. That also was done in the one that I attended. I also have faith in our senior judges. Maybe that faith is ill-placed, as a number of people seem to think that that is not sufficient, but I was very impressed by what I saw.

I have now listened to a large number of noble and learned and very experienced lawyers speak on this. Although I was originally minded to resist the amendment absolutely, I think that I might now like to take it away. I cannot give a timescale, but there may be merit in going down that route. I have talked with the noble and learned Lord, Lord Lloyd, about this in the past. He sort of convinced me about 12 months ago, but I sort of became unconvinced again. As I say, however, it is important to put on the record how amazingly well we take care of these people and look after them. I do get fed up with people when they have a go at the police and our judiciary about what they do and how these people are looked after. I find it really quite dreadful, and it comes out again and again. I shall not resist the amendment, but I should like to see how it could be implemented in timescales. There is clearly a feeling that the provision is necessary. The Government want to do their best in looking after people, but also their best in looking after the security and safety of our nation. Sometimes that is an extremely difficult balance. If I may, therefore, I shall move ahead on that basis.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I am grateful to all noble Lords who have spoken and who have made many new points. I am particularly grateful to the noble and learned Lord, Lord Goldsmith, for correcting me on the important point that the prosecuting authorities make the application, not the police. However, that does not undermine the main point that the judge still needs more to go on. That is besides all the other points.

If the noble Lord is accepting the amendment, subject to further discussion on how it should be framed, of course I will withdraw it. However, I am not clear whether he is accepting the substance of the amendment.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I would like to accept the substance of the amendment, but I want to look at exactly how we phrase it. I cannot set a timescale and would like to see how it is done. There is also the issue of jurisdictions.

Amendment, by leave, withdrawn.

Photo of Lord Geddes Lord Geddes Conservative 6:00 pm, 4th November 2008

My Lords, before calling Amendment No. 6, I must advise your Lordships that if it is agreed to, I shall not be able to call Amendments Nos. 9 to 13 inclusive, or Amendment No. 29, due to pre-emption.

Clause 23 [Post-charge questioning: England and Wales]:

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

moved Amendment No. 6:

Clause 23, page 16, line 33, leave out subsections (2) to (5) and insert—

"( ) A judge of the Crown Court may authorise the questioning of a person about an offence—

(a) after the person has been charged with the offence or been officially informed that they may be prosecuted for it, or(b) after the person has been sent for trial for the offence,if the offence is a terrorism offence or it appears to the judge that the offence has a terrorist connection.

( ) The judge—

(a) must specify the period during which questioning is authorised, and(b) may impose such conditions as appear to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out.

( ) The period during which questioning is authorised—

(a) begins when questioning pursuant to the authorisation begins and runs continuously from that time (whether or not questioning continues), and(b) must not exceed 48 hours.

This is without prejudice to any application for a further authorisation under this section.

( ) Where the person is in prison or otherwise lawfully detained, the judge may authorise the person's removal to another place and detention there for the purpose of being questioned.

( ) A judge must not authorise the questioning of a person under this section unless satisfied—

(a) that further questioning of the person is necessary in the interests of justice,(b) that the investigation for the purposes of which the further questioning is proposed is being conducted diligently and expeditiously, and(c) that what is authorised will not interfere unduly with the preparation of the person's defence to the charge in question or any other criminal charge."

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, the government amendments in this group seek to address the concerns raised in Committee in respect of the post-charge questioning provisions. The amendments remove the ability of a police superintendent to authorise post-charge questioning about the offence charged. Rather than authorisation by the police, all questioning will need to be authorised by a Crown Court judge in England and Wales, a sheriff in Scotland and a district judge in the magistrates' courts in Northern Ireland.

We have selected the district judge following consultation with colleagues in Northern Ireland. They advised that it would be the most appropriate judicial tier for authorisation in Northern Ireland as they are legally qualified and have full case-management responsibilities for all cases, including terrorism cases, before they go to trial. They also commit cases for trial, which requires them to determine whether there is a prima facie case by examining written evidence in preliminary inquiries and by means of hearings involving the examination of witnesses in preliminary investigations.

As I have already said, authorisation in Scotland will be by a sheriff. Scottish colleagues advise us that this is broadly equivalent to the Crown Court judge of England and Wales and that this would be the appropriate level for authorisation.

The amendments limit the period for which post-charge questioning can be allowed to a maximum of 48 hours before further authorisation must be sought. This 48-hour period would run continuously from the commencement of questioning and would include time for meal breaks, sleep and consultation with legal advisers.

The amendments ensure that questioning would be authorised only if the judge deemed that it would not interfere unduly with the preparation of the defendant's defence to the charge, or any other criminal charge, that he may be facing. In effect, this would prevent questioning close to or during a defendant's trial.

The amendments allow the judge to authorise questioning for an offence not specified in terrorism legislation if it appears that the offence with which the person has been charged has a connection to terrorism; for example, a judge could authorise post-charge questioning for the offence of murder if it appeared to them that it was connected to terrorism. This is instead of the original proposal where questioning for a non-terrorism offence would have been allowed if the judge had made an order under Section 29 of the Criminal Procedure and Investigations Act 1996 for a preparatory hearing to be held on the basis that the offence was connected to terrorism. It is no longer necessary to make reference to a hearing under Section 29 as the judge authorising questioning will be seized of the matters and so will determine whether there is a connection of a general criminal offence, such as conspiracy to murder, as part of the authorisation for questioning. This has an advantage over the previous position as there was a potential gap between charging and when the order for a preparatory hearing was made, where it would not have been possible for post-charge questioning for general criminal offences to have taken place.

Finally, the amendments allow the judge authorising questioning to impose conditions on the questioning, such as the location or length of the questioning, as they deem necessary in the interests of justice. They do not, however, specify that the judge could determine the scope of questioning, unlike the amendments tabled by the noble and learned Lord, Lord Lloyd, and the noble Baroness, Lady Neville-Jones.

We had considered including in the Bill a provision that allowed the judge to impose conditions as to the matters in respect of which questioning was authorised. However, following further consultation with the Crown Prosecution Service, the police, and Crown Office & Procurator Fiscal Service in Scotland, we do not believe that it would be appropriate to for a judge to determine the exact scope of police questions.

While the pre-trial phase has certainly been started after charge, the Government do not accept that this should give a judge a role in directing or limiting any continuing police investigation. The defendant may be under the protection of the court, but he is not under the control of the court. There is an overlap with case management responsibilities that are certainly within the judge's remit, which come into play the later in the proceedings the application is made. However, the new clause contains a provision that the judge can refuse questioning if it would interfere unduly with the preparation of the person's defence.

It is important to remember that following a sudden terrorist event, people may be charged on the threshold test before all the evidence in what may be a very complex web of facts, circumstantial evidence and contacts has been gathered or analysed. At that stage, the investigation is very much still under way and may be at an early stage in respect of some, if not all, lines of inquiry. Court proceedings will not be in full swing in the sense that any trial is remotely imminent.

Any decision to allow post-charge questioning is therefore squarely part of the police responsibility, over which they have a very wide discretion, to conduct a proper investigation following up reasonable lines of inquiry pointing towards or away from guilt. If they act inappropriately in any way, they may be sanctioned and the judge may rule out any evidence at trial. These principles are well established in relation to pre-charge interviews.

We also believe that if we were to specify that a judge could impose limits on, and identify closely, the scope of questioning, it could start to take their role a little way towards that of examining magistrates in France. We do not want anything that might start to take us down that route, something I know the Joint Committee on Human Rights has looked at in detail.

In addition, practical problems may arise if the judge determines the scope of questioning. For example, if unforeseen issues arose from any answers to an authorised line of questioning, the police might be hampered in their ability to question further without first returning to the court to seek a fresh authorisation. The implication for any subsequent trial would be that if there was any deviation from the line of questioning authorised, this would prompt an objection to the admissibility of those questions and any answers. There would likely be extensive arguments in court as to whether the individual questions were within the scope allowed by the judge. We therefore believe that the admissibility of the post-charge questioning as a whole is a matter which should properly be determined at trial with reference to the principles of admissibility and fairness.

We believe that the rights of a defendant subject to questioning are adequately protected as the judge can specify how long the police would have to question them. The judge would need to be satisfied that the questioning was in the interests of justice and in practice, if the police only had a small amount of additional evidence on which to question the suspect, they would grant only a short time for additional questioning. Finally, the fact that the judge has authorised post-charge questioning does not require the accused to answer those questions. He will have the same right to silence, in relation to any and all questions, as in any other situation and is certain to have a solicitor present to advise him. I beg to move.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, the House may have gathered from what the Minister has said that in Committee there was no support for the Government's proposals on post-charge questioning. The noble Lord was given an extremely difficult hand to play but, in truth, subsections (2) to (5) of Clause 23 were indefensible. They have now been scrapped. The question for the House today is: what should be put in their place?

Perhaps I may be forgiven for describing the sequence of events as they concern me. During the evening of Tuesday 28 September, I heard from the noble Lord, Lord Thomas of Gresford, that the Government had caved in and that post-charge questioning would be authorised not, as had been proposed, by the police but by a Crown Court judge. On Wednesday 29 September, I asked if I could see the government amendment, which sounded good. It had already been printed. I was told that there was some urgency as the amendment needed to be tabled as soon as possible. When I saw the amendment—not the one that is now before your Lordships—I realised at once that it was good, and I rang the Home Office the next day to say so.

However, when I rang again on Thursday, I was told that the Home Office was having second thoughts. The amendment that I had seen, which I have here, would not be tabled after all. There had been opposition from the police and the Crown Prosecution Service in England and from the procurator fiscal in Scotland. They wanted certain words deleted. If noble Lords look at the Marshalled List, they will find the relevant provisions set out at line 12 of Amendment No. 6. The judge,

"may impose such conditions as appear to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out".

In the original version the clause continued,

"and the matters in respect of which the questioning is authorised".

Those words have now been deleted at the behest of the police, and my argument is that they are vital words. The sole purpose of my amendment is to restore them in the Government's amendment.

Why are the words vital? It is easiest to give an example. Let us suppose that after charge the police come across an altogether new piece of evidence on which they wish to interview the defendant—he is by then a defendant. They want to put it to him, and it is right that they should be able to do so. So they go before a judge, and he authorises further questioning for, let us say, 48 hours—the maximum allowed under proposed new subsection (2). Now let us suppose that the police have finished asking the questions about the new evidence after a few hours. What happens then? Are the police really free to go back during the remainder of the 48 hours over old ground about which the suspect, because he was then a suspect, has already been questioned for 28 days? Clearly, they cannot. If that were possible, there is a real danger of the court holding that the defendant had not had a fair trial. However, there is nothing in the government amendment before the House to prevent that happening. That is why it is so important for the judge to be able to limit the further questioning in the example I have given to the new evidence about which he has been told. Yet those are the very words that have been omitted. It seems almost self-evident that if the judge is going to authorise the further questioning, as everybody now accepts, he should be able to say what he is authorising—in other words, the matters in respect of which he is giving his authority—and those are the very words that are now missing.

Why do the police and the prosecuting authorities in England and Scotland want those words removed? It is not for me to speculate, and I am afraid that the noble Lord has not yet explained to me why they need to be excluded. One reason might be that the police do not like judges looking over their shoulders, but that is an important part of the judges' task. Indeed, it is part of the judges' duty, which was formulated in the Judges' Rules at the request of the then Home Secretary nearly 100 years ago to oversee the manner in which interviews are conducted by the police. Another reason might be that the police would feel inhibited in following the questioning where it led. However, the judge would not dictate the questions; he would only circumscribe the subject matter. Within the limits of the subject matter authorised by the charge, the police could ask whatever they wanted.

This is a case where the Government's first thoughts were clearly best. If the noble Lord now feels able to accept this amendment and restore the vital words that are missing at the moment, as they were deleted, apparently at the behest of the police, I would be more than happy to support his amendment. On the other hand, if those words were not restored, I would oppose it. I beg to move.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs 6:15 pm, 4th November 2008

My Lords, we welcome the Government's acceptance that post-charge questioning should be authorised by a judge of the Crown Court or his equivalents in Scotland and Northern Ireland. That move by the Government is very welcome, but we take the view that the concession is too limited. The Government's amendment allows the judge to,

"impose such conditions as appear to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out".

The noble and learned Lord, Lord Lloyd of Berwick, eloquently set out the limitations of that concession. We on these Benches consider that post-charge questioning will be helpful and useful, but we also believe that the process must have integrity. It is difficult to see how judges will be able to exercise proper judicial supervision, which is what we are seeking, if they are not able to have any authority in relation to the scope of the questioning. The concession seems to vitiate the core that one would like to see there. It is a move in a direction that does not go far enough.

I want to link this point to the revised draft PACE codes that the Minister sent us on Thursday. We had a look at them; to my surprise, they are much less detailed than the previous versions, which is not what I was expecting. It would be helpful if the Minister could explain why. It is important that the PACE codes list the safeguards that will guide post-charge questioning to prevent it becoming oppressive, but in doing that they need to make a clear statement, as the Act will, that post-charge questioning must not take place near or during the defendant's trial. That is not there. Can the Minister say that he intends that those safeguards will apply to post-charge questioning as they already apply to pre-charge questioning? I think his answer will be yes, but I would like confirmation of that.

More generally, we are not entirely happy with where we now seem to be coming out, because the Government are proposing two things simultaneously: disallowing the judge from determining the scope of police questioning, and curtailing the guidance in the PACE codes about the rules under which the police would conduct such questioning. I have to say that that move is in precisely the wrong direction. I am certain that the aim of this House is not to hamper the police in their duties, but to create public confidence in the way that they carry them out. I therefore support the amendment of the noble and learned Lord, Lord Lloyd.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I am reminded of the biblical quotation, "What the Lord giveth, he taketh away". I fear that that is what the noble Lord, Lord West, has done. On the Joint Committee on Human Rights, we heard an awful lot about post-charge questioning. We went into it very carefully. It must be obvious that if a judge has to be asked for permission to interrogate, he must be asked for direction about what can be interrogated. The two must be linked. Without that link, the Lord hath taken away, as opposed to the Lord giveth; and I wish that he could go on and giveth because he is by nature a generous and gallant Lord.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

My Lords, I am glad that my noble friend tabled Amendment No. 6. It seems to me a worthwhile response, as far as it goes, to the anxieties about the Bill's provisions on post-charge questioning expressed in Committee, most notably by the noble and learned Lord, Lord Lloyd of Berwick, but also by others of us.

As the House knows, I support the provision of a contingency power for the Home Secretary within tightly defined conditions to extend pre-charge detention of terrorist suspects. The delicate but always pragmatic balance of liberty and security may properly be recalibrated in circumstances of major terrorist threat. However, if that is done, there is an absolute duty on us to ensure that procedures for questioning people who are detained and trying people who are accused are such as to secure justice. I welcome the safeguards that my noble friend has proposed in response to our debate in Committee to provide for judicial oversight of post-charge questioning; but I also hope that he will reflect carefully on the merits, which seem very great, of the further safeguards proposed by the noble and learned Lord, Lord Lloyd, in his amendments and in his speech.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, this worries me. Let us take the scenario where the police wish to continue to question after arrest and charge and go to the judge to say, "We want to do this for this reason. This is the information that we have and we need to ask the defendant these questions", and the judge says, "Yes". Under the government amendment, having done that, they are perfectly free to go back to ask any question they choose on any matter about which the judge has not been asked at all.

That drives a horse and cart through the whole idea of having protection for a defendant in a post-questioning period. I cannot understand why the Government have left out the other words, which the noble and learned Lord, Lord Lloyd of Berwick, has asked to be put back—which the Government themselves put in—unless it is the view of the procurator fiscal, the CPS and the English police that they want a chance to have a second bite at the cherry, although they do not want to be honest about that.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, as the noble and learned Lord, Lord Lloyd of Berwick, said, there was a lot of dissatisfaction in Committee about the structure of the Bill at that stage with regard to post-charge questioning. It is necessary to acknowledge the steps that the Government have taken to address those criticisms. Although in the Bill as it stood, in Scotland it would be a sheriff from whom authorisation was sought, there was concern that in England and Northern Ireland it would be lay justices. The fact that they will now be professional justices, judges, is very welcome. There was also concern that, for the initial 24-hour period, questioning could be done at the behest of any senior police officer. There was criticism of that from all sides, and I very much welcome the fact that the Government have thought better of that and that, from the outset, there will be judicial authorisation. The amendments I have tabled in this group are superseded by the comprehensive amendments that the Government have tabled.

It is also fair to recognise that one of the amendments that I proposed in Committee was to limit the period for questioning to 72 hours, as opposed to five days. I welcome the fact that the Government have come back to be even more restrictive on the length of questioning.

I listened carefully to what the noble and learned Lord, Lord Lloyd of Berwick, said about his amendment to the amendment. I have cited before in the context of post-charge questioning the principle of Scots law as enunciated by the then Lord Justice-General Normand in 1938:

"When an accused person has been committed, he comes under the protection of the court and it is the court's duty to see that nothing is done by the police that will prejudice his trial".

That principle is consistent with the amendment moved by the noble and learned Lord, Lord Lloyd.

I listened carefully to the Minister's answers. Simply to assert that the police, the CPS, the procurator fiscal and the Lord Advocate do not like it is not answer enough. We want to know why they do not like it. The amendment is limited, in that the judiciary is not determining which questions will be asked but rather the scope or subject matter of the questions. That is an important distinction. I therefore want to learn from the Minister why the amendment is being resisted.

Photo of Lord Goldsmith Lord Goldsmith Labour

My Lords, it is a bit of an evening for admissions of parentage. In government, I think that I was the first to press for post-charge questioning, although I confess that that was very largely to meet the argument that there was a need for an extension of the period of detention pre-charge, but it always seemed important that post-charge questioning should be subject to proper safeguards. I, too, welcome the way that my noble friend has produced the amendment.

There is much merit in what the noble and learned Lord, Lord Lloyd, said about the ambit of the questioning, but one aspect of it troubles me, and I want to hear what my noble friend says about it. That is the balance between the need for safeguards and operational requirements. I suspect that it very much depends on how one reads the words, "the matters". Looking at how the safeguards are drafted, that relates to questioning about the offence itself. The judge must be satisfied under what I think will become subsection (6) that,

"further questioning of the person is necessary in the interest of justice", and, what is more,

"that what is authorised will not interfere unduly with the preparation of the person's defence".

So one would anticipate that the prosecutors will have to state why they want to question. That is fine.

What would worry me is if the interpretation of the words in the noble and learned Lord's amendment,

"the matters in respect of which the questioning is authorised", amounted in effect to the drawing-up by the judge of a list of permissible questions. That is not how questioning takes place.

I see the noble and learned Lord, Lord Lloyd, shake his head. It will be very interesting to know how that is dealt with, but I see circumstances in which, if I were a prosecutor, I would be concerned that the effect of the amendment might be to do just that, to limit how questioning takes place. Therefore, I want to hear what my noble friend says about how the Government view the concerns about the amendment and how they intend to deal with the particular concern which the noble and learned Lord, Lord Lloyd, has put forward.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench 6:30 pm, 4th November 2008

My Lords, I respectfully suggest that there is not a world of difference between the amendment proposed by the noble Lord, Lord West, and that proposed by the noble and learned Lord, Lord Lloyd of Berwick. Both come from the same direction and starting point: that is, the horror with which English law has over the centuries looked on the prospect of a person who, after all, is in the care of the court, after being charged, having further questions put to him. As I understand it, there have always been very narrow exceptions. There are narrow exceptions in Code C to the Police and Criminal Evidence Act 1984, which broadly applies at the moment. They apply where it is necessary to put questions in the hope of minimising or avoiding loss to a person, in the public interest, or where a further statement made by another person has come to light or has been referred to in an interview by another person. Those are the limitations that apply at the moment.

There are two avenues in Clause 23. One might be described as the police path of questioning. The other is the judicial path, and it is a great improvement on the part of the Government to want to drop the police path and concentrate on the judicial path. The difference now is whether the judge should sit in essence as an examining magistrate, which would be the probable effect, although not the intention, of the amendment of the noble and learned Lord, Lord Lloyd, or whether the judge should be at large. I believe that the judge should be trusted. I have served for some 18 years as a circuit judge. Circuit judges very often have to face very difficult choices and can maintain a proper and just balance in such circumstances.

The difference might be that, under the amendment proposed by Her Majesty's Government, this application would be made ex parte but the defendant would not be represented. I am sure that that can be cured either by further amendment or by some administrative decision. On the other hand, there is a danger, which was properly expressed by the noble and learned Lord, Lord Goldsmith, that if one begins to spell out exactly what the question should be, one is in very difficult waters.

The noble and learned Lord, Lord Lloyd, has argued that the judges' rules—of 1904, if I remember rightly; I will be corrected if I am wrong—allowed the judge to oversee the questioning, but only post the event. There was no question of the judge being able to draft the area of questioning. He was obliged to consider whether any information or evidence had been extracted unlawfully and was therefore inadmissible. The oversight was limited to oversight long after the event. I know of no other instance where a judge in our law is entitled beforehand to set out the detailed parameters of the questioning.

I appreciate that the noble and learned Lord, Lord Lloyd, is not saying that; he is saying that we should set out the area of investigation. That is why there is no world of difference between the two amendments. The area of investigation is bound to be affected by the provision in the Government's amendment, which says that,

"further questioning of the person is necessary in the interests of justice".

If you say that questions in that area are necessary but that questions in another area are not, you are drawing a proper boundary between the two. On the other hand, if you say that this is the type of question that can be asked only up to that point but not beyond it, you are making the position of the questioning police officer almost impossible. There can be compromise where the area of questioning can be adequately delineated without over-circumscribing the content of the question.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, the particular paragraph (b) in the Government's amendment that is the subject of the amendment in the name of the noble and learned Lord, Lord Lloyd, says:

"The judge ... may impose such conditions as appear to be necessary in the interests of justice".

That allows the judge, if he wishes, to circumscribe the area of questioning. The only reason for my slight doubt about this interpretation is that apparently the Crown Prosecution Service and the procurator fiscals in Scotland—I think the Lord Advocate was also mentioned—objected to the further provision in the clause. They are not infallible, of course, and what is left may be sufficient for the purpose of securing the basic idea that the noble and learned Lord, Lord Lloyd, has in mind.

It occurs to me that so much in the development of questioning depends on the answers. At the stage at which the judge authorises this questioning, he will not have a very full idea of what the answers may be. I am sure that the noble and learned Lord has, in his long experience, occasionally come across surprising answers, even to questions that he has asked. The scope of the questioning may depend on how the answers develop. This is a developing theme. At the moment, I am prepared to leave this on the basis that the judge may impose conditions that appear to be necessary in the interests of justice on the questioning that he has authorised. If he thinks it necessary to specify the matters on which that questioning should proceed, he could certainly do so.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

My Lords, if the Crown prosecutor—I accept the noble Lord's earlier rebuke—makes an application to the judge for post-charge questioning into a certain area, it is quite simple; the judge permits the application as it is drafted. If further matters arise in the course of the questioning into that area, as applied for, there is nothing to stop the Crown prosecutor going back to the court and seeking to delineate a further area in which he wishes to question the accused person. This will not make a great deal of difference from a practical point of view. I follow the noble and learned Lord, Lord Mackay of Clashfern, when he says that the interests of justice must decisively come first, because if the judge thinks that it is the interests of justice that questioning should be allowed only in one area and not in another, he can make that order under the clause.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, that was quite an interesting dialogue. The noble and learned Lord, Lord Lloyd, had a good run at explaining exactly how we have been involved in detailed consultation, which, as I have said, I like to try to be. I am not sure that it helps to say when certain things were given, certain things were changed and other things were done, because that is part of life when one is consulting. It may lead one not to consult, which would be a bit unfortunate because consultation is clearly very important. Phrases such as "caved in" are not very helpful, either. I should like to think that I listen to debates in this Chamber and then consult people.

A number of noble Lords have asked why the Crown Prosecution Service, the police and the Crown prosecutor said all these things. I have not only asked them but have taken other advice. I have talked to a number of other senior judges about this, and it is by no means clear cut. Indeed, a number of them, rather like the Crown Prosecution Service, are nervous about the direction in which we are going. They feel that we should not move towards a judge having a role in placing and directing questions in what should be the investigation stage of post-charge questioning. They genuinely feel that there is a real risk that this might lead us to go down the route of having examining magistrates, as France has.

This is finely balanced, as a number of noble Lords have mentioned. Setting out the area of investigation, as the amendment does, allows the judge to take the right decisions and set broad parameters. We all know that people say amazing things sometimes when they are questioned. So, as the questioning goes ahead, to have to stop to ask for more permission and to open up all the potential in the case for this to be challenged by the defence later is very risky.

Lots of safeguards are in place. The suspect has a right to legal representation throughout post-charge questioning. His man will be there. The solicitor will be present. He will stop abuse and will protect the interests of the defendant. The trial judge can refuse to admit any evidence that was obtained inappropriately. I do not believe that the police have any incentive to abuse their power, but in terms of the investigation and of protecting us, they have the opportunity to move quickly down a route when things come out suddenly during the questioning. It makes absolute sense to do that.

On the PACE code issue raised by the noble Baroness, Lady Neville-Jones, it is less detailed. With post-charge questioning now authorised by a judge, we do not need the parts of the code about police authorisation. The judge must consider the proximity of questioning to the trial, which he will do. Therefore, it will not impinge on the trial and will not move in that direction.

I have touched on the practical problems that this amendment would raise and on the danger that the judge would become an examining magistrate, which I do not think will help. I believe that within the amendments there are protections to look after the person who is being questioned, but there are not the risks of these other things, which will not help justice. Certainly, we look after the individual and make sure that he is protected by having a solicitor and by the fact that the evidence could be inadmissible at the trial. Therefore, I should like my amendment to stand.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I am not suggesting—I am sure that no one really imagines that I am—that the judge in these circumstances should sit as an examining magistrate. Nor do I suggest, and nor would the effect of this amendment be, that the judge could spell out what the questions should be. When my noble friend Lord Elystan-Morgan says that there is perhaps not a great deal of difference between what I am contending and what the noble Lord is accepting, I venture to disagree. There is a great deal of difference. It seems to me still to be essentially important that the judge should indicate the areas—I am perfectly happy with that word—in which the further questioning should take place. I thought that the word "matters", the original word and clearly intended to cover areas proposed by the Government, was a sensible word. I still think that "matters" is a sufficiently sensible word, but it means areas rather than individual questions. On that basis, I should like to test the opinion of the House.

On Question, Whether Amendment No. 7, as an amendment to Amendment No. 6, shall be agreed to?

Their Lordships divided: Contents, 130; Not-Contents, 130.

Division number 2 Private Parking: Ports and Trading Estates — Counter-Terrorism Bill

Aye: 128 Members of the House of Lords

No: 128 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Photo of Lord Geddes Lord Geddes Conservative 6:56 pm, 4th November 2008

My Lords, there being an equality of votes, in accordance with Standing Order 57, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such an amendment, I declare the amendment disagreed to.

Resolved in the negative, and Amendment No. 7, as an amendment to Amendment No. 6, disagreed to accordingly.

[Amendment No. 8, as an amendment to Amendment No. 6, not moved.]

On Question, Amendment No. 6 agreed to.

[Amendments Nos. 9 to 14 not moved.]

Clause 24 [Post-charge questioning: Scotland]:

Photo of Lord Geddes Lord Geddes Conservative

My Lords, I should remind the House that if Amendment No. 15 is agreed to, I will not be able to call Amendments Nos. 18 to 20 inclusive due to pre-emption.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

moved Amendment No. 15:

Clause 24, page 17, line 45, leave out subsections (2) to (6) and insert—

"( ) On the application of the prosecutor, a sheriff may authorise the questioning of a person about an offence—

(a) after the person has been charged with the offence, or(b) after the person has appeared on petition in respect of the offence,if the offence is a terrorism offence or it appears to the sheriff that the offence has a terrorist connection.

( ) The sheriff—

(a) must specify the period during which questioning is authorised, and (b) may impose such conditions as appear to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out.

( ) The period during which questioning is authorised—

(a) begins when questioning pursuant to the authorisation begins and runs continuously from that time (whether or not questioning continues), and(b) must not exceed 48 hours.

This is without prejudice to any application for a further authorisation under this section.

( ) Where the person is in prison or otherwise lawfully detained, the sheriff may authorise the person's removal to another place and detention there for the purpose of being questioned.

( ) A sheriff must not authorise the questioning of a person under this section unless satisfied—

(a) that further questioning of the person is necessary in the interests of justice,(b) that the investigation for the purposes of which the further questioning is proposed is being conducted diligently and expeditiously, and

(c) that what is authorised will not interfere unduly with the preparation of the person's defence to the charge in question or any other criminal charge."

On Question, amendment agreed to.

[Amendments Nos. 16 and 17, as amendments to Amendment No. 15, not moved.]

[Amendments Nos. 18 to 20 not moved.]

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

moved Amendments Nos. 21 and 22:

Clause 24, page 18, line 24, leave out "subsection (2) or (3)" and insert "this section"

Clause 24, page 18, line 25, at end insert "(or had appeared on petition)"

On Question, amendments agreed to.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat 7:00 pm, 4th November 2008

moved Amendment No. 23:

Clause 24, page 18, line 25, at end insert—

"( ) The Lord Advocate shall publish guidelines about the questioning of a person by a constable in accordance with this section."

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, the amendment intends that the Lord Advocate should publish guidelines about the questioning of a person by a constable in accordance with the clause. In the previous debate, the noble Baroness, Lady Neville-Jones, referred to the draft code issued last week under the Police and Criminal Evidence Act, and how she very much regretted its vagueness and lack of definition compared with the previous code. In England and Wales, however, at least there is a code that proceeds on a statutory basis. In Scotland, not only have we not seen any draft protocol or guidelines; there is no statutory basis for such guidelines to be issued.

This issue was raised in Committee and the noble and learned Lord, Lord Boyd of Duncansby, a former Lord Advocate, indicated that he wanted the Lord Advocate to issue a protocol or guidelines. In his letter, the noble Lord, Lord West, indicated that the Lord Advocate has confirmed that she intends to issue guidelines on post-charge questioning in the same way as for the detention, treatment and questioning of persons arrested under Section 41 of the Terrorism Act.

I welcome the fact that such guidelines are to be issued, but noble Lords will recognise that there is a world of difference between the statutory provisions that safeguard the way in which post-charge questioning takes place in England and Wales and the promise by the Lord Advocate to issue guidelines in Scotland. The amendment seeks to put this on a statutory footing. I have not yet been given a good reason why there should be a difference between how post-charge questioning provisions are implemented in Scotland and how they are implemented in England and Wales. I do not think that I need to elaborate further on this. Good intentions are fine and welcome, but I have not yet had a good explanation of why the provisions cannot proceed on a statutory basis, as is the case in the parts of the Bill dealing with England and Wales and Northern Ireland. I beg to move.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, as the noble Lord, Lord Wallace, has said, and as I made clear in Committee, the Lord Advocate has confirmed that she intends to issue guidelines on post-charge questioning and that they will be similar to those that the Lord Advocate issued on detention, treatment and questioning of persons arrested under Section 41 of the Terrorism Act 2000. These were issued despite there being no statutory requirement to do so.

We have made a legislative requirement that codes of practice must make provision regarding post-charge questioning in England and Wales and Northern Ireland because in these jurisdictions codes of practice are a statutory requirement—for example, in England and Wales, under Section 66 of the Police and Criminal Evidence Act 1984. As for why that should not be the case in Scotland, the answer is that Scotland is different. It is not the case in Scotland, and it is a matter for the Lord Advocate to determine whether it is appropriate or necessary to issue guidelines. We therefore do not believe that a statutory requirement would be helpful or appropriate, and the Lord Advocate supports us in this view.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, I hear the argument that Scotland is different, and it can be a compelling argument. Will the Minister undertake to ensure that when the Lord Advocate issues these guidelines, a copy will be placed in the Library of the House?

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I would be happy to do that. I shall have to check with the Lord Advocate, but I cannot see any difficulty whatever in doing so. Assuming that she has no issue with that, and I cannot see that she would, I will certainly agree to do it. On the basis of there being a difference, as we know there is, and that she will be issuing guidelines, I ask the noble Lord to withdraw the amendment.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, it is always worthwhile to challenge and test these matters. When legislation is making provision for all parts of the United Kingdom, we should ensure that at least some equivalence of protection is given to those affected by it. I hear and accept what the Minister has said. Given his willingness in principle, subject to consultation with the Lord Advocate, to place the guidelines in the Library of the House, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 [Post-charge questioning: Northern Ireland]:

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

moved Amendment No. 24:

Clause 25, page 18, line 29, leave out subsections (2) to (4) and insert—

"( ) A district judge (magistrates' courts) may authorise the questioning of a person about an offence—

(a) after the person has been charged with the offence or been officially informed that they may be prosecuted for it, or(b) after the person has been committed for trial for the offence,if the offence is a terrorism offence.

( ) The judge—

(a) must specify the period during which questioning is authorised, and(b) may impose such conditions as appear to the judge to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out.

( ) The period during which questioning is authorised—

(a) begins when questioning pursuant to the authorisation begins and runs continuously from that time (whether or not questioning continues), and(b) must not exceed 48 hours.

This is without prejudice to any application for a further authorisation under this section.

( ) Where the person is in prison or otherwise lawfully detained, the judge may authorise the person's removal to another place and detention there for the purpose of being questioned.

( ) A district judge (magistrates' courts) must not authorise the questioning of a person under this section unless satisfied—

(a) that further questioning of the person is necessary in the interests of justice,(b) that the investigation for the purposes of which the further questioning is proposed is being conducted diligently and expeditiously, and(c) that what is authorised will not interfere unduly with the preparation of the person's defence to the charge in question or any other criminal charge."

On Question, amendment agreed to.

[Amendments Nos. 25 and 26 not moved.]

Clause 26 [Recording of interviews]:

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, the House will recall that the Bill included an order-making power which allowed the Secretary of State to disapply the compulsory requirement for post-charge questioning to be video recorded with sound, which caused some amusement at the time. The power had been included because there are police stations in some parts of the United Kingdom which do not have the facility to video record interviews with sound. The inclusion of this order-making power raised concerns at the previous stage and the Government concede that that power should be removed. That is the effect of the amendment.

All post-charge questioning under these provisions will now be video recorded with sound in all parts of the United Kingdom. The effect of the amendment will be to prevent post-charge questioning in certain police stations until the necessary facilities are available. We do not anticipate that this will be a significant problem as a suspect could be transferred for questioning to a police station which does have the facilities, and in time these facilities will be available in other police stations. I beg to move.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, I welcome what the Minister has just said. Is there a programme to equip the police stations where the facilities are not available? It would be a good idea to avoid having to shift people around because the necessary facilities are not on the spot.

On Question, amendment agreed to.

[Amendments Nos. 28 and 29 not moved.]

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

moved Amendments Nos. 30 and 31:

Clause 26, page 19, line 37, leave out "An order or" and insert "A"

Clause 26, page 19, line 42, leave out subsection (6)

On Question, amendments agreed to.

Clause 28 [Meaning of "terrorism offence"]:

[Amendment No. 32 not moved.]

Clause 29 [Jurisdiction to try offences committed in the UK]:

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

moved Amendment No. 33:

Clause 29, page 21, line 24, after "may" insert ", with the written consent of the relevant law officer,"

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, we now move to Part 3 of the Bill. The amendments relate to the clause which allows that where an offence to which the section applies is committed in the United Kingdom, proceedings for the offence may be taken at any place in the United Kingdom and the offence may, for all incidental purposes, be treated as having been committed at any such place. The clause then indicates the offences which would be covered by this, with provision as to how the offences might be amended.

Nothing in the Bill indicates the criteria or procedure which might be followed to establish that a particular place in the United Kingdom will be where the proceedings take place. The amendments do not seek to set down criteria. I can foresee possible difficulties if criteria were established, as they would no doubt create a breeding ground where lawyers could pour over them to find ways in which certain criteria had not been met. However, we should perhaps at the very least expect a formal basis of agreement between the prosecuting authorities in two distinctive jurisdictions; otherwise there could be confusion and challenge.

When the Lord Advocate appeared before the Public Bill Committee in the other place, and when I raised this matter with the Minister in Committee, the response was that the present Lord Advocate wishes this and that she thinks that everything will work fine and that she and the Attorney-General get on well. I have never thought of that as a sound basis for a constitutional legal framework. I have no doubt that the Attorney-General and the Lord Advocate get on well, but it is not impossible that future holders of the two respective offices might not get on so well. Some formal recognition that a transfer of jurisdiction has taken place would at least ensure some certainty in the proceedings.

In addition, and this is why one of the other amendments in this group seeks to establish some protocols, there are a number of practical consequences that can arise from a transfer of jurisdiction. As I pointed out before, in Scots criminal law procedures there are certain time limits to be followed with regard to the serving of an indictment, or the time when a trial should start—140 days after committal. If a person is then moved from Scotland to England to stand trial in the Old Bailey rather than in the High Court in Glasgow, what happens to those time limits? Are they just arbitrarily dismissed because we have moved into a different jurisdiction? If the transfer was in the other direction and someone was transferred from England to stand trial in the High Court in Glasgow, that person would lose the right to habeas corpus. Should that really be done by administrative fiat without any background explanation being given?

Then there is the point about what happens in circumstances where a case with a substantial Scottish component is to be tried in the English courts but the Attorney-General decides, no doubt with good cause, not to proceed with a particular charge. Will the Lord Advocate be able to bring separate proceedings on a separate occasion in Scotland on a charge that has not been proceeded with in England? I do not know the answer, but if we are legislating on an important issue such as this it is reasonable that there should be some guidance on the public record that would indicate whether the Lord Advocate would be able to bring a charge in separate proceedings in such circumstances.

In Committee the Minister said:

"It had been said that the general principles would be articulated with the Attorney-General and Lord Advocate, and ... there has been mention of a protocol. Having thought about it, I believe it would be absolutely correct for a protocol to be seen by people, because there are technicalities that could cause problems and those little things can make quite a difference sometimes. If I may, I should like to go away and confirm when that is to be done. As I said, the Lord Advocate very much pushed for it to be done and I think that it makes sense to go down the route of a universal jurisdiction".—[Hansard, 15/10/08; col. 779.]

He said that he would look at the issue of the protocol. This is his opportunity to indicate, having looked at it, what is to be done about the protocol and when we are likely to see it. It could cover a number of important issues, and it would provide some reassurance, in putting this clause on to the statute book, that these understandings are there in the public domain. I beg to move.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I thank the noble Lord, Lord Wallace, for his amendment because it is important that we give this matter some exposure. I hope that my explanation will cover the points he has raised.

Clause 29 gives UK-wide jurisdiction for specific terrorism offences, irrespective of which jurisdiction they were committed in. The amendments seek to alter the provisions in two ways. Amendments Nos. 33 and 35 would make it a legal requirement for the law officer of the jurisdiction in which the offence was committed to give written consent to the transfer of cases from that part of the UK to another part of the UK for prosecution under the jurisdiction provided by the clause. Amendment No. 34 would require the Attorney-General, the Lord Advocate and the Director of Public Prosecutions for Northern Ireland to jointly issue, and from time to time revise, a code of practice regarding the operation of Clause 29. That code of practice would first have to be issued in draft, consulted on and laid before Parliament under the affirmative resolution procedure. Once final, it would be binding on anyone exercising an investigative or prosecutorial function in relation to the clause.

Noble Lords will recall that the Lord Advocate, Elish Angiolini, gave evidence to the Commons Public Bill Committee, saying that she did not think an express provision of consent would be helpful. We agree that the addition of a requirement for written consent would be unhelpful. Dominic Grieve spoke about this very issue at the previous Report stage of the Bill, saying:

"Given what the Lord Advocate has said so emphatically, I would be loth to interfere. I appreciate the hon. Gentleman's anxiety, and perhaps I can reassure him by saying that if there were to be a serious difference of view on an issue of the kind we are discussing"— that is, which jurisdiction a prosecution should take place in—

"it would create a mini constitutional crisis and the House would have to return to the issue. The smooth running of constitutions depends on more than our getting a series of rules right. If an established relationship is so clear and self-confident—at both ends—that no one has ever seen a problem on which there has not been a meeting of minds, I would be loth to interfere with it".

He also discussed the disadvantages of including a requirement:

"The disadvantage would be that where a relationship works well without such a requirement—and is therefore seen perhaps as a pillar of the good working of our Union, which I support—I would not wish to see its having to be qualified with even the suggestion that it would require some statutory clarification in certain circumstances".—[Hansard, Commons, 10/6/08; col. 228.]

The Government are with Dominic Grieve on this issue. As we have said previously, experience shows that where jurisdictional issues arise, the Lord Advocate and the Attorney-General, in conjunction with the Director of Public Prosecutions and the DPP for Northern Ireland, would be engaged immediately in discussions to resolve issues arising from concurrent jurisdiction. The relevant law officers and independent directors, with their role in prosecutions, and acting in the public interest, will consult on the decision about the most appropriate place for the prosecution to take place. We believe that this practice, which is already in place, provides sufficient protection.

This is not simply about the personal relationship between the current Lord Advocate and the Attorney-General, good as it might be. That was suggested a bit in the previous debate on this matter. The good relationship we are talking about is between the offices of relevant law officers, as evidenced by the good co-operation and collaborative approach shown between successive office-holders down the years when dealing with cross-border issues.

We also believe that the decision on the appropriate jurisdiction is likely to be taken early on in an investigation during the evidence-gathering stage—indeed, it needs to be. Introducing a bureaucratic requirement for written consent could well slow down an investigation.

The same arguments apply to the issue of the proposed code of practice for this clause, as outlined in Amendment No. 34. Decisions about how to pursue a criminal investigation where conduct crosses UK borders, or a combination of UK and international borders, will be very fact-sensitive. No code, whether statutory or otherwise, could set out rules that would enable the outcome to be determined in advance in any given case; it could only ever set out general considerations that were relevant. We also need to be careful to minimise the scope for litigation that would seek to second-guess investigative and prosecutorial decisions.

I remind the House of the purpose of this clause: it seeks to remove an impediment to the prosecution of cross-border terrorism activity in the UK by avoiding the need for multiple trials in multiple jurisdictions if that would not best serve the public interest. In removing that impediment, we do not want to put a new barrier in the way. I reassure the House that the Lord Advocate and the Attorney-General will set out some of the main considerations that may be relevant to decisions made under Clause 29, and that these will be made available in the House Library before the provisions are brought into force.

On a technical level, the amendment is also deficient in that, for example, the definition of "relevant law officer" does not cover an offence committed in Wales. Reference to where an offence is committed is not really sufficient either as, in these cases, the offence is likely to have been committed across two or more jurisdictions. The governing principle in common law that Clause 29 seeks to override is that it is where the substantial part of the criminality takes place that determines jurisdiction. That concept is not captured in the amendment. On this basis, I hope the noble Lord will feel that the amendment can be withdrawn.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat 7:15 pm, 4th November 2008

My Lords, I am grateful to the Minister for that response. I still have some concern that a lot of this is being to left to, "It'll be all right on the night", but I take the point that it is about the relationship between the offices of the law officers as well as any personal relationship—although it is worth pointing out that until May 1999 the two officers were actually members of the same Administration. It is only recently that they have been members of different Administrations. One hopes that this will stand the test of time, not least for the sake of the Union to which Dominic Grieve referred.

Most important in the Minister's reply was that there will be a number of issues that the Lord Advocate and the Attorney-General will be prepared to address and that that will be made publicly available prior to these provisions coming into force. That is a very welcome response, and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 34 and 35 not moved.]

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

moved Amendment No. 36:

Before Clause 45, insert the following new Clause—

"Persons to whom the notification requirements apply

The notification requirements apply to a person who—(a) is aged 16 or over at the time of being dealt with for an offence to which this Part applies, and(b) is made subject in respect of the offence to a sentence or order within section 45 (sentences or orders triggering notification requirements)."

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, at the previous stage of the Bill, I agreed to give further consideration to how the proposed notification requirements would operate. There were two main areas of concern about them. The first was that a child convicted of a terrorism offence could become subject to the requirements. The second was that the notification requirements would apply indefinitely in the case of anyone sentenced to five years or more.

After looking at these issues further—I would not want to think of it as a "cave-in", because I hate that expression—we have decided to make a number of amendments to the notification provisions. The first amendment, inserting a new clause before Clause 45, addresses how the notification requirements apply to young people. It will ensure that they do not apply to anyone under the age of 16 on the date that they are dealt with for a terrorism or terrorism-related offence, recognising to an extent the extraordinary ways in which young people can sometimes act and the fact that they can change.

The amendments to Clause 53 address the length of time for which the notification requirements apply. They will mean that notification requirements will apply only for 10 years where someone is aged 16 or 17 on the date of their conviction for a relevant offence, regardless of the length of the sentence imposed, provided of course that the sentence is for more than 12 months.

The amendments also change the notification period for persons aged 18 or over on the date of conviction. Those sentenced to 10 years or more, or to an indeterminate sentence for a relevant offence, will have to notify for 30 years under the proposed amendment rather than the indefinite notification period which is found in the existing print of the Bill and which is not appropriate. Adults sentenced to between five and 10 years will be required to notify for 15 years, once again instead of the indefinite notification period. The period for persons sentenced to between 12 months and five years will remain 10 years.

The amendments to Clause 45 are largely minor and technical, and those to Schedule 6 replicate the new policy that I have just described in relation to offences dealt with before the service courts.

In making the amendments, we considered the proposal to shorten the application of the notification requirements to five years but to allow them to be renewed by a court if it considered it necessary for the purpose of protecting members of the public from a risk of terrorism. We also considered whether someone subject to the notification requirements could apply to a court to have them disapplied.

However, we could not envisage how a court could realistically undertake either of these tasks. If there was sufficient open evidence that an individual subject to the notification requirements was concerned in terrorism, we would expect the police to seek to arrest them with a view to prosecuting, rather than to seek to have the notification requirements renewed. If there was no evidence available that the individual was involved in terrorist activity, it would be inevitable that a court would either not renew the requirements or would have to remove them from the individual. However, the evidence might simply be unavailable as the individual was operating covertly, or waiting for their notification period to end before resuming their involvement. We also consider that the resources involved in undertaking such an exercise would be disproportionate as set against the minimal interference posed by the notification requirements, which we believe are fully justified by the risk established by the very fact of a conviction for a serious terrorist offence. We have therefore decided against adopting either of these approaches.

I remind the House that the notification requirement will apply only to convicted terrorists. The police should have access to information to assist them in monitoring the people concerned following their release from custody. In addition, the requirements are not onerous: they do not stop the individual doing anything; they merely require the person to notify certain details, such as change of address, to the police and to keep this information up to date.

I hope that the amendments are sufficient to address concerns about the notification requirements. I beg to move.

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords, Home Affairs

My Lords, I wholeheartedly thank the Minister for taking the time to meet us à propos the amendments. We said then that we welcomed the change of position. I would never apply laddish terminology such as "cave-in" to any morsels that the Minister might throw in my direction. Such an expression does not figure in my lexicon. I consider the Minister's rethinking of his position an extremely gracious act.

However, while not wishing to be at all churlish, I take this opportunity to remind him of my now recalibrated concerns in one or two small areas, one of which is the treatment of 16 and 17 year-olds. Current arrangements for young people regarded as representing a risk to others are already stringent, and there seems to be no evidence that they are ineffective.

In the following points, I refer to an extensive briefing that I have received from the Standing Committee on Youth Justice. Youth offending teams are required to conduct an assessment of risk of serious harm in all cases where there is any suggestion that a young person might pose a risk to others. They are obliged to develop a risk management plan. Where levels of risk are at their highest, young people are subject to multi-agency public protection arrangements. Such arrangements provide a much higher level of supervision and oversight than would be afforded by the young person notifying his or her details to the police annually. For these very reasons, the Government were persuaded that violent offender orders, included in the Criminal Justice Bill not so very long ago, should not be introduced for those below the age of 18.

I know that the Minister is sympathetic to the argument that adolescence is a time of transition and identity formulation. During the minimum proposed period for notification, each young person will have changed beyond all recognition, and the risk that they may have posed 10 years previously may no longer be relevant.

A further concern is that terrorism-related activity differs from other forms of offending in a number of respects. Where young people are involved, it will in nearly every case be encouraged by, or undertaken under the influence or at the instigation of, older individuals—we have talked about the grooming that takes place—who may deliberately target children. In such cases, it is important that responses to terrorist offending should aim to foster social inclusion through a process of education and rehabilitation. The notification requirements are likely to be unhelpful in this regard.

I draw noble Lords' attention to the Prime Minister's visit to Saudi Arabia earlier this week, where he met some alleged suspects—I have to say "alleged", because Saudi Arabia has not taken any terrorist suspects to trial as yet. They had been the subject of rehabilitation and seemed to have seen that they were under the influence of a pervasive ideology and to have recanted. While not suggesting for a second that we employ those tactics, we would hope that we could look forward to their education and rehabilitation, particularly with regard to this young group, rather than stigmatisation through notification requirements ad infinitum. Will the Minister, who I know is mindful of these points, accept that we might wish to keep an eye on this area, and, as we go forward and see how it beds down, perhaps in some forthcoming legislation revisit these concerns?

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

My Lords, I owe the Minister an apology for the use of a shorthand expression, when passing the noble and learned Lord, Lord Lloyd, in the Corridor, that I normally use only about his Government. In fact, I think that I referred to his Government and not to the noble Lord himself, because we all know that he has never caved in personally or in his career throughout his life. We welcome from these Benches the straightforward way in which he deals with and listens to us. I should have said that the noble Lord, having given careful consideration to our points, has come to a sensible conclusion.

On Question, amendment agreed to.

Clause 45 [Sentences or orders triggering notification requirements]:

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

moved Amendments Nos. 37 to 45:

Clause 45, page 32, line 37, after "imprisonment" insert "or custody"

Clause 45, page 32, line 38, after "imprisonment" insert "or detention in a young offender institution"

Clause 45, page 32, line 39, after "imprisonment" insert "or detention in a young offender institution"

Clause 45, page 33, line 12, leave out subsection (2)

Clause 45, page 33, line 23, leave out sub-paragraphs (i) to (viii) and insert—

"(i) imprisonment or detention in a young offenders institution for life,(ii) imprisonment or detention in a young offenders institution for a term of 12 months or more,(iii) an order for lifelong restriction under section 210F of the Criminal Procedure (Scotland) Act 1995 (c. 46),(iv) detention without limit of time under section 205(2) of that Act (punishment for murder for offenders under 18),(v) detention for a period of 12 months or more under section 208 of that Act (detention of children convicted on indictment);"

Clause 45, page 34, line 4, leave out "or extended"

Clause 45, page 34, line 5, leave out "or 14"

Clause 45, page 34, line 6, at end insert—

"( ) an extended custodial sentence under Article 14(5) of that Order (offenders under 21 convicted of certain offences),"

Clause 45, page 34, line 14, after "more" insert "(other serious offences committed by a child)"

On Question, amendments agreed to.

Clause 53 [Period for which notification requirements apply]:

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

moved Amendment No. 46:

Clause 53, page 38, line 38, leave out subsections (1) to (3) and insert—

"(1) The period for which the notification requirements apply is—

(a) 30 years in the case of a person who—(i) is aged 18 or over at the time of conviction for the offence, and(ii) receives in respect of the offence a sentence within subsection (2);(b) 15 years in the case of a person who—(i) is aged 18 or over at the time of conviction for the offence, and(ii) receives in respect of the offence a sentence within subsection (3);(c) 10 years in any other case.

(2) The sentences in respect of which a 30 year period applies are—

(a) in England and Wales—(i) imprisonment or custody for life,(ii) imprisonment or detention in a young offender institution for a term of 10 years or more,(iii) imprisonment or detention in a young offender institution for public protection under section 225 of the Criminal Justice Act 2003 (c. 44), (iv) detention during Her Majesty's pleasure;(b) in Scotland—(i) imprisonment or detention in a young offenders institution for life,(ii) imprisonment or detention in a young offenders institution for a term of 10 years or more,(iii) an order for lifelong restriction under section 210F of the Criminal Procedure (Scotland) Act 1995 (c. 46);(c) in Northern Ireland—(i) imprisonment for life,(ii) imprisonment for a term of 10 years or more,(iii) an indeterminate custodial sentence under Article 13 of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)),(iv) an extended custodial sentence for a term of 10 years or more under Article 14(5) of that Order (offenders under 21 convicted of certain offences),(v) detention during the pleasure of the Secretary of State under Article 45(1) of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)).

(3) The sentences in respect of which a 15 year period applies are—

(a) in England and Wales, imprisonment or detention in a young offender institution for a term of 5 years or more but less than 10 years;(b) in Scotland, imprisonment or detention in a young offenders institution for a term of 5 years or more but less than 10 years;(c) in Northern Ireland—(i) imprisonment for a term of 5 years or more but less than 10 years,(ii) an extended custodial sentence for a term of 5 years or more but less than 10 years under Article 14(5) of that Order (offenders under 21 convicted of certain offences)."

On Question, amendment agreed to.

Clause 61 [References to a person being "dealt with" for an offence]:

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

moved Amendment No. 47:

Clause 61, page 45, line 18, at end insert—

"( ) section (Persons subject to notification requirements)(a) or paragraph 3A(a) of Schedule 6 (persons subject to notification requirements: age when dealt with for offence),"

On Question, amendment agreed to.

Photo of Lord Brett Lord Brett Government Whip, Government Whip

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.