The amendments apply the offence of trespass on designated sites to Scotland. They also make various consequential amendments relating to the Bill's coming into force and its territorial extent.
Clauses 120 to 122 did not originally include provisions for Scotland because we needed to discuss with the Scottish Executive exactly how they would apply there. We have now reached agreement. There are a couple of differences in relation to Scots law: the period of imprisonment is 12 months rather than 51 weeks; the term trespasser is not used in Scotland—a trespasser is referred to as a person on a site without lawful authority—and there is no requirement to seek the consent of the Attorney-General in Scotland.
Scottish Ministers will be responsible for designating sites in Scotland, where the sites are on Crown land or land belonging to the Queen or the Prince of Wales in their private capacity. The Secretary of State will be responsible for designating sites in Scotland on the ground of national security, because national security matters are a national, not a devolved, matter. That provision reflects the different responsibilities set out in the Scotland Act 1998. When the Home Secretary exercises the power to designate sites on the ground of national security, we have undertaken in correspondence with the Scottish First Minister to ensure that the Home Secretary does not do so without first consulting Scottish Ministers.
I am informed that they are Crown land, so they fall into the first category of designation rather than the second. To ensure consistency, it is important that the powers apply to Scotland.
With this it will be convenient to discuss the following amendments: No. 305, in clause 120, page 85, line 21, leave out from 'capacity' to end of line 23 and insert—
'(3A) The Secretary of State may not designate a site to which the public has access.'.
No. 306, in clause 120, page 85, line 39, leave out subsection (7).
The proposed offence of trespassing on a designated site is superficially attractive, but we must carefully consider the implications of Parliament's actions in this respect. It has long been the principle in this country that trespass is a civil matter. There are exceptions, of course, such as entering certain designated sites restricted under various regulations, particularly highly sensitive places such as nuclear installations and the like. On the whole, I think the policy a good one, and if we are to depart from it, we must ensure that we do not widen the scope of the criminal law too much. We must also be careful to maintain a sense of proportion.
The amendments are essentially probing, to allow us to find out a little more about how the provisions will work in practice. The Secretary of State may designate sites in three categories under the clause. The first is Crown land, the second private lands belonging to Her Majesty the Queen or the heir to the throne, and the third land that the Secretary of State believes it is appropriate to designate in the interests of national security.
What is meant by ''national security'' in that context? My definition of national security is pretty restricted, in that it relates to the protection of essential state security interests—for instance, major state installations. Could the concept be widened so that it includes anything that affects the day-to-day operation of the state? An obvious example might be a sit-down protest on Horseguards parade: it is not something that I would encourage people to do, but, while it might be disruptive, I would not associate it with a threat to state security. The Committee needs to consider how the issue will be addressed in practice.
Secondly, and as important, we are creating a criminal offence. Trespass usually involves going on to land to which members of the public have no right of access, but there are permissive rights for people to enter a great deal of the private land in this country. Those permissive rights can be withdrawn, but the public's attitude to such land will inevitably be different from their attitude to other sites. Furthermore, as far as public opinion is concerned, it is one thing to climb over a wall of Buckingham palace and rampage round the gardens having entered in order to do so, and quite another to go for a walk in Hyde park. Most people regard those things differently and will understand that the law is likely to be applied differently, but we must be careful not to introduce a law that criminalises those who decide to go on to land that they normally associate with being open to the public.
That dovetails with the reasoning behind the next amendment, which addresses the concern that if the site is land to which members of the public normally have access, there should be a requirement—one that does not appear to be provided for in subsection (7)—that such people should be informed that they are trespassing and that they should leave before the criminal law comes into operation. That is what the amendments are designed to probe. Two of them are duplicatory, and I do not know why they feature separately.
I hope that the Minister will respond to those points, because we are contemplating an important change to the law, and we should not let it go through on the nod.
I simply wish to understand what the Minister intends by the clause, and the amendments tabled by the hon. Member for Beaconsfield (Mr. Grieve) seem to provide an appropriate means to find out. I am grateful for the confirmation that Duchy of Cornwall land is Crown land, as such land covers a large part of my constituency. A number of the tenant farmers in my constituency are on Duchy land, so it will be interesting to know what it is intended in terms of designation and the extent to which common sense will be applied to the question of what constitutes Crown land that it is appropriate to designate and what is Crown land that it is not appropriate to designate? In the case of Duchy of Cornwall land, there is little that is appropriate for designation.
Secondly, I assume that the clause will cover any land occupied by the Ministry of Defence, whether it is Crown land per se, in which case it will automatically be designated, or whether it falls under subsection (3)(c). That might include land occupied by agencies working for the MOD—for example, since the dockyards have been privatised, they occupy some land that is not Crown land but that is used for the purposes for which they were set up.
Thirdly, I have a nagging suspicion that subsection (3)(c) could be used and, in my view, abused to define as criminal trespass entry on to land that is used for purposes that are way beyond those that might be defined as sensitive or relating to national security. I can imagine such a power being used in the past at Greenham Common, or today outside RAF Fairford, now a United States air force base. The base is protected by virtue of being Crown land, but the land outside is not, and we have already seen arrests by the Gloucestershire police for peaceful demonstrations outside RAF Fairford against its use by United States aircraft. Questions have been raised about the legality of that police action. It is not hard to imagine a Secretary of State being prevailed upon to say that land outside MOD land, or outside land used by Allied forces, required designation in the interest of national security.
We need to know from the Minister the extent to which she believes the power will be used—clearly there are areas where its use is sensible, and there are areas where it would be an abuse. Unfortunately, it is hard to perceive such discrimination in the text of the clause; perhaps it cannot be built in, and we have to take it on trust that the Secretary of State will act in an appropriate way. However, I dislike taking things on trust from any Minister, simply because they may change.
Hon. Members are right to probe the issues through their amendments, because the law is being changed, but I hope to be able to give them some reassurance.
I must resist amendments Nos. 251 and 305 because the national security designation category for the new offence of trespass on a designated site would be removed from the Bill, and the Government believe that it is essential to retain that category to enable us to designate sites as such. However, I understand hon. Members' misgivings about the width of the definition of national security.
It is general Government policy, not just of the current Government, not to define national security, as that could hinder our flexibility in dealing with new and emerging threats. A single rigid definition could prevent us from dealing with issues that arise. It has been recognised by the courts, both here and in Europe, that the definition of national security is primarily a matter for the Executive, in this case the Secretary of State through the order-making power of designation. In addition, the House of Lords ruled in the case of Rehman in 2001 that national security embraces a precautionary approach, that is, potential threats as well as actual threats, which gives the Executive fairly wide leeway for making definitions.
We envisage being able to designate land belonging to the Crown, land belonging to the Queen or the Prince of Wales in their private capacity, and any land that falls under the national security designation. The provisions therefore cover places like Windsor castle and those parts of Buckingham palace not open to the public—clearly, some parts of the palace are open to the public, and as long as the public keep to those areas they will not be committing an offence. I hate to legislate in a reactive fashion, but hon. Members will be aware of the recommendations in the Armstrong report that followed Aaron Barschak's intrusion at Windsor castle and the security commission inquiry's report into Ryan Parry's intrusion into Buckingham palace. The clause is a result of those various security authorities' recommendations to us. The legislation is designed to address a particular set of circumstances, specifically mischief, although we are not in the business of using that as a catch-all to enable a wide designation of sites across the country.
I am concerned about the amendments relating to public access, because they would prevent sites where there is such access from being protected. The provision for a defence that people did not know the site was designated would be sufficient for them not to be prosecuted. Not only is there a defence, but the prosecution would have to have a realistic chance of success, which will militate against frivolous prosecutions of people who have unwittingly trespassed on a designated site. We have tried to draw the legislation to ensure that it is not a massive extension of restrictions on people's ability to enter various sites.
We do need a deterrent and an incentive for people to leave a designated site. The hon. Member for Beaconsfield made a genuine point about the need to put up signage so that members of the public actually know that the site is designated and do not accidentally wander in and find themselves committing a criminal offence. There is provision in the legislation to allow the Secretary of State to put up signage. The various sites will be designated through order, which will need to be laid before Parliament.
This is a fairly modest set of proposals, designed to attack the particular mischief of people getting into Buckingham palace and Windsor castle. It may well be that, in future, it will be considered appropriate to designate the Palace of Westminster on grounds of national security. Clearly, that will be a matter for consideration of the Secretary of State when drawing up the designated orders. As I think that the amendments would undermine the purpose of the legislation. I ask the hon. Gentleman to withdraw them.
I am grateful to the Minister, and I will ask leave of the Committee to withdraw the amendment. However, at the end of a speech that otherwise filled me with considerable comfort, the Minister properly highlighted the fact that there might come a day on which we would have to designate the Palace of Westminster or, as I think she is more likely to mean, parts of it. That might get us into difficulties. I want the Minister to reflect on my concern that the proposals be kept simple. One of the concerns that underlay the tabling of the amendments was that once we start to designate parts of sites but not entire sites, we start to create quite a complicated set of rules. It may not be impossible. I suppose that we could end up with little notices down the Members' Corridor, which I have to say has now become a public freeway. It certainly was not 25 years ago when my father was in Parliament: no one went down there except for Members and senior staff. We will have to put up notices, and that could turn out to be quite intrusive. I hope that the Minister will bear in mind that if the measure starts to become disproportionate, it will quickly be brought into disrepute. Subject to that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 120, as amended, ordered to stand part of the Bill.