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Clause 26

Counter-Terrorism Bill – in a Public Bill Committee on 8th May 2008.

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Post-charge questioning: meaning of “terrorism offence”

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office 2:00 pm, 8th May 2008

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

Photo of John Bercow John Bercow Conservative, Buckingham

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

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

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

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

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

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

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

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

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

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

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

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

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

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

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

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

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

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

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

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

Amendment agreed to.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

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

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

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

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

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

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

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

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

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

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

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

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

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

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

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

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

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

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

Amendment, by leave, withdrawn.

Clause 26, as amended, ordered to stand part of the Bill.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

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

Photo of John Bercow John Bercow Conservative, Buckingham

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

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

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

Photo of John Bercow John Bercow Conservative, Buckingham

I am very much minded to do so.