Clause 27

Counter-Terrorism Bill – in a Public Bill Committee at 2:00 pm on 8 May 2008.

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Jurisdiction to try offences committed in the UK

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 2:15, 8 May 2008

I beg to move amendment No. 166, page 20, line 17, leave out subsection (4).

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss the following: Amendment No. 168, page 20, line 18, leave out subsection (5).

Government amendment No. 136

Amendment No. 167, page 20, line 19, leave out subsection (6).

Amendment No. 126, page 20, line 19, after ‘offence’, insert ‘with terrorism connections’.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

These are probing amendments, so my right hon. and learned Friend might find that they facilitate a more general debate on the clause. The Committee will recollect that, in the course of our preliminary deliberations, we received evidence from the Lord Advocate, who provided a great deal of reassurance. She said that there was little anxiety among the Scottish Government about the clause, which was designed to facilitate trials taking place with maximum flexibility in relation to the United Kingdom. In her judgment, it was not intended to be used, and would not be used, to try to remove cases from Scotland or, for that matter, vice versa.

Nevertheless, we cannot simply allow clause 27 to pass without taking a closer look. When I look at the clause, two issues spring to mind, on which I would like a response from the Government. First, the clause lists a number of offences under the Terrorism Act 2000 that will be caught by the provisions, which will enable a trial to take place anywhere in the United Kingdom. For the most part, they did not cause a great deal of trouble, although I must confess that I was struck by the reference to

“section 51 (parking a vehicle in contravention of an authorisation or restriction)”.

I accept that that might have an intimate terrorist connection, but I am not sure that it is so serious—unless accompanied by other factors—as to be an area in which I would wish to depart from the ordinary rules on where a matter is tried. I flag that up with the Minister, and it would be helpful if he could provide an explanation, because the Government have been quite careful in selecting the provisions covered by the clause.

Secondly, it is also provided that the Secretary of State may by order amend the subsections to add to the list anything that he likes. I accept that that must be done through the affirmative procedure, but, as the Minister knows, I have a rather old-fashioned dislike of it partly because individual offences tend not to be put to the House to be added to a list. The chances are that we will get six or seven, one of which we might dislike, while having no problem with the remainder. In such circumstances, we can do nothing except vote against or in favour. Given that I would have expected the Government to have covered in the clause all existing terrorism legislation that they felt needed to be subject to this unusual provision, in reality nothing else should need to be added, except under subsequent legislation, which could be done without any problem by virtue of tabling the suitable consequential amendments.

I find subsection (6) somewhat surprising, because it purports to have a retrospective effect, and that might bother me more than any other part of the clause. I do not want to make too big a fuss about it, and on one level I can see that provisions already exist for offences to be moved from Scotland to England for trial under certain set circumstances, particularly in cases of conspiracy, for example. Nevertheless, we have two distinct legal systems and it could be argued properly that individuals are entitled to the protection of the legal systems under which they live and certainly to certainty under the law. That is different from the accused suddenly being told that even though the law did not operate at the time the offence was committed, they will be tried in a jurisdiction other than that in which the alleged offence was committed. Although I  derived a great deal of reassurance from the Lord Advocate’s evidence, which removed much of my anxiety over the clause, it still seems to me that some issues need to be teased out.

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

I have only two observations. First, may I say to my hon. and learned Friend that although I recognise and share his dislike for the process of amending statutes by order, I very much prefer the affirmative to the negative procedure? He is entirely right that an order made under either is unamendable, and that is the great vice of using the procedure.

My second observation reinforced the point that my hon. and learned Friend made with regard to subsection (6). There is actually quite a significant point of principle here. He has mentioned retrospection, and of course it is entirely right that persons should not be subject to different sentences dependent on a law being applied retrospectively. That also applies to jurisdiction, because it is rather hard to say that a person can be tried in a jurisdiction that they could not be tried in unless the law was made retrospective. That will probably not happen in reality, because those classes of case will disappear with the passage of time, but there is an issue of principle here, and I have a strong degree of sympathy with my hon. and learned Friend’s point

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

I am grateful to the hon. and learned Member for Beaconsfield for recognising that the Lord Advocate’s evidence was extremely useful for understanding these clauses. She gave a formidable and informative performance, which was one of the few saving graces of using the evidence sessions as a prelude to our deliberations, as I thought that she was very good. She said not only that the principal source of the amendment lies in concerns and anxieties north of the border, but that it was absolutely clear

“that the real priority here is the public interest, and terrorism in that context demands that we act closely together to ensure both the public interest and fairness for the accused.”——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 91, Q249.]

Clause 27 gives UK-wide jurisdiction for specific terrorism offences so that they can be tried in any part of the UK, as the Lord Advocate clearly stated, irrespective of which jurisdiction they were committed in. Hon. Members will know that London-Glasgow last summer was the source of some of the concerns raised about the clause. The clause applies to offences listed in subsections (2) and (3), which are offences under the terrorism legislation and the ancillary offences associated with those, such as conspiracy and incitement. The clause covers more minor terrorist offences, so that in some cases a person can be tried together with a linked defendant in another jurisdiction who might be charged with a more serious offence. When considering the core element of dual jurisdiction and where to try in the first place, those minor offences might bring in other defendants from another jurisdiction to the major offence and the major defendant in the principal jurisdiction. That is why some of the more ancillary and lesser charges are included.

It will be possible to prosecute terrorism cases in any part of the United Kingdom, irrespective of where they were committed. Rightly, however, under the principles  of common law, a substantial measure of the criminal activity must have taken place in the UK for a court to take jurisdiction over an offence. The common law rule has been established for sensible reasons, and in the vast majority of cases it results in the court that is best placed to deal with the offence having jurisdiction. However, when cross-border situations arise, the rule might result in linked offences that happen in two different parts of the UK having to be tried in separate trials in different parts of the UK with an ultimately detrimental effect on bringing individuals to justice. That would be inefficient in that it would involve duplication of witnesses and evidence, a waste of resources and almost certainly less effectiveness than if the cases could be joined and tried together in the one jurisdiction.

The provision in the clause will be extremely helpful when, for example, in a single investigation there are linked defendants, one in Wales and one in Scotland, both of whom are found to be in possession of terrorist articles, which is an offence under section 57 of the 2000 Act. Each defendant could be tried only under separate jurisdictions as the common law rule would prevent a joint trial, no acts of the Welsh defendant having taken place in Scotland or vice versa. The provision in clause 27 will allow such cases to be tried by the same court.

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

I may be expressing an anxiety that is ill founded, but the right hon. Gentleman knows that in Northern Ireland there are Diplock courts, or trial by a single judge. Is it possible under the clause for people who are normally resident in Scotland or England and Wales, where they would normally be subject to trial by jury, to be transferred to Northern Ireland and face trial by a single judge for a terrorist-related offence?

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

That is an entirely fair point, but not so, as I understand it—if someone to the left of me falls off their chair I will have misinformed the right hon. and learned Gentleman. The provision covers principally England and Wales, and Scotland, but if I am wrong, I will happily stand corrected.

There are already examples of legislation that enables prosecutions to take place in any part of the UK. The Criminal Procedure (Scotland) Act 1995 and the Customs and Excise Management Act 1979 include such provisions. Amendments Nos. 126 and 136 would clarify the scope of clause 27 by limiting the purpose of UK-wide jurisdiction to dealing with terrorism.

Government amendment No. 136 makes it explicit that an offence can be added to the list only if the Secretary of State believes that it is necessary for the purpose of dealing with terrorism. The order-making power could not be used to create UK-wide jurisdiction for offences that are not related to terrorism. Clearly—this is almost a rerun of our previous deliberations—there can be and will be ancillary and precursor activities and offences that seem not to have anything to do with terrorism, but do.

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

That may well be the case in terms of the jurisdictional point. My concern and hesitation was on the point about the juryless element and Diplock, and where we are in dismantling that paraphernalia as well as the security and terrorism paraphernalia and legislation in Northern Ireland consequent on the peace process. The Committee will know that as part of the peace process and embedding devolutions in Northern Ireland, we are seeking to unpick all of the emergency legislation that prevailed regarding terrorism and security, including using the Bill to do so. We are also, as we already have in at least one regard, taking measures that were relevant only to Northern Ireland and making them UK-wide provisions because they are useful for the wider threat that we now face. If I have confused people, I apologise, but it was on the point about juryless trials that I was unclear; the broader issue of Northern Ireland’s jurisdiction being within the United Kingdom I happily accept as a matter of fact.

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

The right hon. Gentleman will remember that right at the end of last year, there was the case of Hoey before Mr. Justice Weir, which concerned the Enniskillen bombing. That makes the point that the single judge is still operating without a jury in Northern Ireland. Unless something has happened in the last three or four months of which I am unaware, there are still judge alone trials.

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

That is the point that I am not clear on. I am not sure whether we have already started to disestablish, or whatever the phrase should be, that particular paraphernalia. It might be that precisely because the case involved Enniskillen, an horrendous atrocity of so long ago, it still pertained to the old system, and a new system has come in. The jurisdictional point is well made, but if the push from hon. Members is that including Northern Ireland should not include the juryless element—whether or not a substantial part of the offence took place in Northern Ireland—I am happy to take that back, and I think that I would absolutely agree.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 2:30, 8 May 2008

I would be grateful if the Minister would do so because an amendment needs to be inserted to say that the movement, this UK-wide jurisdiction, shall not be used for the purposes of depriving a person of the benefit of trial by jury. That would solve the problem. Such an amendment need not exclude Northern Ireland specifically because indeed, some Northern Ireland cases could be transferred here, for example, but it is a very important issue.

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

I would agree. Doubtless, if I do not say so someone else will: given the concerns about the potential retrospective nature of part 6 and the substantial offences and activities that have been committed in Northern Ireland, that point becomes all the more  important. It is certainly not the Government’s intention, by sleight of hand or otherwise, that any case under England and Wales or Scottish jurisdiction that had a remote Northern Ireland connection should be thrown over the Irish sea to be dealt with by Diplock courts. I will get clarification on that and hopefully write to the Committee before our proceedings end.

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

On a different and minor point, which I hope the Minister will not feel is completely irrelevant, I wonder whether the Government have had any discussions with the Governments of the Crown territories within the British Isles regarding reciprocal arrangements for jurisdiction in the Isle of Man and the Channel Islands. It seems entirely possible that terrorism could be aimed at UK interests in the Channel Islands, presenting a difficulty with jurisdiction that is not entirely covered by the clause dealing with offences committed outside the UK.

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

The hon. Gentleman is entirely right and his point is not completely irrelevant. It is a perfectly fair point and one that I will explore, but I would think that in most instances, without offending anybody in the Isle of Man or anywhere else, in a dispute over jurisdiction between a Crown territory and any of the UK jurisdictions, the dominant UK jurisdiction would prevail for legal, practical and other reasons. I know that there has been discussion, but I am not sure whether we have reciprocity to underpin what we are trying to do here in cross-jurisdictional bases.

The hon. Gentleman’s point is fair and moot, albeit minor; I would not go so far as to call it irrelevant, but if a significant element of a terrorist case in Northern Ireland, Scotland or England and Wales was under Isle of Man jurisdiction, which is perfectly feasible, I find it difficult to believe that such a case would not be taken to trial by the senior jurisdiction, especially if it was a serious case. I say that without offending anyone in the Crown territories. However that is a fair point and I will explore it and get back to the Committee.

Amendment No. 126 and Government amendment No. 136 seek to do the same thing, but on balance, in limiting it to dealing with terrorism, the Government amendment does that better. For that reason, and with all due humility, I cannot accept the amendment tabled by the hon. and learned Gentleman.

Amendments Nos. 166 and 168 would remove the ability of the Secretary of State to amend the list of offences for which there will be UK-wide jurisdiction. Unless the Committee tells me otherwise, I think that we have covered that pretty well.

I will take away the points that were made entirely fairly about the retrospective nature of subsection (6). I think that the right hon. and learned Member for Sleaford and North Hykeham—not for Sleakeham—is entirely right when he suggests that such cases will be very rare and that there may be no need for the provision at all. It is put in there to cover all eventualities, given the serious nature of these offences. I appreciate the point of principle involved and the Government’s intention was not to open up retrospectivity as a more general point. If hon. Members have alighted upon a more  sinister import, I will come back to them in all due humility. However, I do not think that there is. I think that incorporating that is a belt and braces element in trying to create cross-jurisdictional clarity.

I ask the hon. and learned Member to withdraw the amendment, and I would like Government amendment No. 136 to prevail over amendment No. 126.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful that the Minister has taken on board the anxiety that has been expressed that we should not facilitate trials without juries and for the assurance that he will look at that. In conclusion, I slightly reserve my position on subsection (6). I continue to have anxiety about the retrospectivity of these provisions. It may, as my right hon. and learned Friend the Member for Sleaford and North Hykeham rightly said, prove to be entirely academic because it is hoped that such a case will not arise. However, I think that people are entitled to the benefit of the jurisdiction in which they commit their offences. If Parliament is going to remove that, to do so retrospectively is a slightly dubious procedure. I shall reflect on that and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 136, in page 20, line 18, at end insert—

‘( ) The power conferred by subsection (4) may be exercised so as to add offences to subsection (2) or (3) only if it appears to the Secretary of State necessary to do so for the purpose of dealing with terrorism.’.—[Mr. McNulty.]

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

I beg to move amendment No. 50, in page 20, line 20, at end add—

‘(7) Where this section applies to an offence committed in Scotland, proceedings may only be taken in another part of the United Kingdom following consultation with, and with the consent of, the Lord Advocate.’.

I agree with the view expressed earlier in Committee that the evidence of the Lord Advocate was extremely useful. I think that that was one of the most useful parts of the evidence taking sessions that we had.

Mr. Hogg rose—

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

I freely admit that his evidence shot a fox as far as I was concerned. I was clear that this was the big, bad Home Office doing awful things to the Scottish jurisdiction and it quite clearly was not.

Photo of John Bercow John Bercow Conservative, Buckingham

Order. I say very gently to the right hon. and learned Member for Sleaford and North Hykeham that in seeking to intervene, one asks the person on his or her feet whether they wish to give way. It is not usual practice for a Member simply to stand and by the fact of asserting his or her presence to seek to intervene.

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

You misunderstand me, Mr. Bercow. I was seeking to intervene, but only at a time convenient to the hon. Member for Somerton and Frome. I did not want to interrupt his flow, merely to indicate that at his convenience I would be grateful if he did give way.

Photo of John Bercow John Bercow Conservative, Buckingham

Order. Perhaps I can make the position clear once and for all. There is a method of intervening and that method applies to every single Member of the House. With the greatest of respect, I do not need the right hon. and learned Gentleman to explain to me that I have somehow misunderstood him. There is a way of going about these things. I am simply gently saying to him that he should do it in the way that everybody else does.

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

My flow is eminently interruptible and I am delighted to give way to the right hon. and learned Member for Sleaford and North Hykeham.

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

My desire was simply not to interrupt the hon. Gentleman in mid-flow. That was my very modest reason for getting up as I did. Would he agree with this proposition? It is certainly the case that the Lord Advocate’s evidence was extremely valuable. One of the problems that affects Bills of this kind where we are dealing with Northern Ireland and Scotland, is that often we do not have the opinion of the relevant authorities within each part of the United Kingdom. It would be a jolly good thing if as a general rule we could have advice, for example, from the law enforcement agencies of Northern Ireland in respect of that part of the Bill that touches on Northern Ireland when there are no Unionist or Northern Ireland representatives.

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

I am most grateful to the right hon. and learned Gentleman for that intervention.

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

As far as I am aware, because I take the hon. Gentleman’s point, through the usual channels and in the usual fashion the Conservative party was asked if one of their Members would stand down in lieu of a Democratic Unionist party representative. As we see, that request was not greeted with any equanimity.

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

I do not want to get into discussions between the usual channels. I simply want to record my gratitude to the Lord Advocate. I think it was my request initially for her to attend and give evidence. I thought that she gave evidence extremely well. As I said, she put to rest my concern that this was being done unilaterally to the Scottish jurisdiction rather than at its instigation, which was clearly the case. That was useful.

Taking forward the point made by the right hon. and learned Gentleman, very often I am concerned when we are dealing with criminal justice matters in this House affecting Scotland that we do not have the benefit of colleagues from Scotland to give their advice. I appreciate that we have one Member from a Scottish constituency on the Committee, but he is the only one. There was a time when it was normal to have a Scottish Office Minister present on a Bill like this to deal with the issues relating to Scotland. I do not criticise the Government for this because since devolution many of these matters are dealt with by the Scottish Executive. I understand that entirely, but it means that we have to take particular care when we are dealing with the  Scottish or the Northern Irish jurisdictions to make sure that we understand what the issues are and get them right.

Although my mind was put at rest as far as the general case that there was agreement across both sides of the border that what is set out in this clause was an advantage, my one remaining anxiety is about what might happen if there were a disagreement. The Lord Advocate was very generous in her comments about her relationship with the prosecution authorities in England and Wales and said that she got on extremely well with the Attorney-General, the Solicitor-General and the Director of Public Prosecutions and that they had no reason to find themselves at odds. Nevertheless, it is conceivable that this Lord Advocate, or a future Lord Advocate might have a difference of opinion with this Attorney-General or a future Attorney-General as to whether these powers should be invoked in a specific case.

I respect the separate jurisdiction in Scotland, which has managed to maintain its differential over the long years of the Union of the Crowns and the Union of Parliaments. Given the specific differences in the system that exist, which I would defend under any circumstances, just as I defend our right to have our common law system instead of any form of merger with any European or continental model or jurisdiction, we should have respect for the Scottish jurisdiction and be able to say that this should be done with the consent of the Lord Advocate. In any case, I do not think that that would not be forthcoming. Simply as a courtesy—a bow of the head to the Scottish jurisdiction—it is right that the Lord Advocate should be consulted and that she should give agreement.

That view is strongly held by lawyers north of the border, as reflected in the advice from the Law Society of Scotland, for instance. I cannot remember whether I had a letter from the Faculty of Advocates on the subject, but I suspect that that would be its view as well. It seems a minor courtesy to write such a requirement into the Bill, and I hope that the Minister will accept the amendment. It would not in any way reduce the effectiveness of the Bill. It would simply provide a safeguard so that if there were a dispute at some stage in the future, at least there would be a way of resolving it or recognising that there was a difference, rather than England and Wales simply bullying their way forward at the expense of the Scottish jurisdiction.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 2:45, 8 May 2008

I am not unsympathetic to what the hon. Member for Somerton and Frome has done in amendment No. 50, and if this debate had taken place without the benefit of the Lord Advocate’s evidence, I would have been minded to support him if he had put his amendment to a vote. I also accept that the amendment is relatively innocuous.

However, what struck me so forcefully in the Lord Advocate’s evidence to the Committee was the extent to which she was entirely comfortable with the conventions that operate currently. As a Conservative, I am a great believer in conventions, which do not have  to be written down. When I saw the extent of her sense of comfort—she is, after all, the Lord Advocate advising a Government who now have a nationalist viewpoint—I began to conclude that I was worrying about nothing.

If the working relationship that clearly exists between her office and that of the DPP and the Attorney-General is as good as it appears to be—we heard nothing to suggest otherwise—it seems that this matter is capable of being resolved through those informal relationships, which are, of course, the foundation of our constitution.

Therefore, on balance, although I fully understand why the hon. Gentleman tabled the amendment, I think that if the Lord Advocate does not want it—she is the person best placed to decide whether it is needed—it probably is not needed.

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

May I use this debate to raise a question with the Minister as to what happens if there is a disagreement between law enforcement agencies in different parts of the United Kingdom? Let me postulate as an example a person held in Northern Ireland whom it is desired should be tried in England—the CPS or the DPP wants to try them in England—but whom the law enforcement agency in Northern Ireland does not want to transfer. The same thing could apply to Scotland or Northern Ireland. Is there any procedure in place or any laws that deal with that question? How does one resolve such a disagreement when it arises, if it arises?

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

I do not think that I can usefully add much to what the hon. and learned Member for Beaconsfield said. The current Lord Advocate draws comfort from existing arrangements not because she gets on famously with our current Attorney-General and Solicitor-General, although they have a good relationship; the comfort comes as much from the experience and conventions that the hon. and learned Gentleman referred to and the fact that, as both chief prosecutors act in the public interest, sufficient protection is already provided. I am with the hon. and learned Gentleman: the convention works not simply because a couple of pals get on together, but because it has worked historically. She also made it clear that, notwithstanding terrorism, cross-jurisdictional issues are not new—they had occurred and been dealt with under common law. She quoted, I believe, an example of credit card fraud with roots in Scotland and its link to a drugs ring in Liverpool. We are clear, not least because of the heightened regard that both legal officers, whoever they are, would afford to public interest and protection, that things work very well as they are. On the principle—it is probably not a Conservative principle—that if it ain’t broke, don’t fix it, we are in a reasonable position notwithstanding what clause 27 will add to the relationship.

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

I rather feared that the Minister was going to conclude his remarks without responding to my perfectly genuine query. What happens if there is a disagreement, as between respective law enforcement agencies? Is there a procedure and are there laws for the resolution of that disagreement?

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

I do not think that there is a formal legal resolution procedure other than broad protocols rooted in the sort of conventions and experiences to which the hon. and learned Member for Beaconsfield referred. That is not a namby-pamby answer. Rooted in experience thus far, they will prevail. At its most mechanistic, one could apportion the seriousness of what happened in what jurisdiction and weigh accordingly which was the dominant. I do not think that senior law officers in the UK act in that fashion. The protocols and the experience thus far tell us that such problems will be overcome. I accept that it is a perfectly genuine inquiry, but I do not think that a procedure should be locked in—not least for the same reasons that I do not want the amendment—some mechanistic, formal and formulaic statutory requirement, given the flexibility and complexities of such cases which, we should be clear, will be relatively few and far between, as the right hon. and learned Gentleman suggested.

Photo of Russell Brown Russell Brown PPS (Rt Hon Des Browne, Secretary of State), Scotland Office

I live close to the border of England and Scotland and I can assure the Minister that, on the information that I have, there is a close working relationship on both sides, and not only in the border locality. It goes far wider: I am aware of many drugs-related activities over which there has been excellent co-operation to ensure that those who are out there contravening laws in this country are brought to book. The law enforcement agencies appear to work well together; the judiciary may be something different.

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

I am grateful to my hon. Friend. When the Lord Advocate was before us, the hon. Member for Somerton and Frome teased out of her the fact that clause 27 emanated from the Scottish Law Officers, and shot his own fox in the process. As the hon. and learned Member for Beaconsfield said, the Law Officers are entirely comfortable with the measure, not because of a personal relationship, but because of the institutional relationship, to which my hon. Friend the Member for Dumfries and Galloway referred, and the relationship between the two offices over time. Therefore, the Liberal Democratsamendment—I do not say this terribly frequently—is entirely irrelevant. I would ask the hon. Member for Somerton and Frome—I would ask his hon. Friend the Member for Carshalton and Wallington too, but he is not here—to gracefully withdraw so that we can move on.

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

If I understand the Minister, the reasons why we should not have a provision to require consultation and consent from the Lord Advocate are that consultation always takes place with the Lord Advocate and she gives her consent, and that the amendment would therefore place an onerous duty on both officials to secure such consultation and consent, irrespective of the fact that that already happens. There is no prescription in the amendment for a checklist or questionnaire or anything else; it is simply a statement of what the Minister has assured me is already the case.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have no wish to defend the Minister, but that is not quite what he said. It was not that the Lord Advocate always gave her consent. It was that she never had any difficulty reaching an agreement with  her counterparts in England. In some cases, it could even work the other way, or it could be that consent is not given. I was very struck by the fact that she indicated that it had never been a problem.

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

Which, I think, repeats my position. The fact that it has never been a problem suggests that either consent is given, in which case it happens, or consent is not given, in which case it does not happen. That means that my amendment would make no difference to the arrangements unless there was a difference of opinion, which none of us foresee in the near future on the evidence of the Lord Advocate—certainly with the present incumbents and with the present protocols in place. We must assume that the good relationships will last, that the incumbent will stay in place with the new administration in Scotland, that her successors will take exactly the same view and will be as co-operative as she clearly is, and that for the lifetime of this statute, there will not be a dispute. Therefore, there is no need for any resolution to provide the consent. That is the argument that I have heard against my eminently reasonable and modest suggestion. [Interruption.] The Minister tells me that that is not the argument.

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

As I made it very clear—I do not wish to prolong the point—the Lord Advocate took comfort in the prevailing position, not simply because of her relationship with the individual who happened to hold the post of Attorney-General in England and Wales, but because of the protocols that will be in place and because of the experience and conventions that the hon. and learned Member for Beaconsfield referred to earlier and how successfully they had worked to mutual benefit. That is a bit more than saying that she has either been steam-rollered or that consent has always been forthcoming, so there is no harm in adding this amendment. This amendment—I am loth to say that it is vacuous—adds nothing to the prevailing relationship. The prevailing relationship is so strong not because of the Baroness Scotland and Elish Angiolini, but because of the posts that they occupy and the raison d’être of those posts as chief legal prosecutors looking after the public interest and public safety. That is where the comfort comes from; all of that and not just the relationship.

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

We have a personal relationship as well as protocols and public interest that allow for consultation and consent, but the provision that requires consultation and consent is otiose.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The other reason why I happen to think that the amendment is unnecessary is because in reality, if there were a conflict, I do not think that there is any way in which the Government at Westminster could require the Scottish Executive and the Scottish legal authorities to surrender an individual across the border for the purpose of trial. Its separate legal system, which is enshrined in the Act of Union and preserved in devolution, would not allow us to do it. Also, if there were a breakdown in the relationship, which has apparently been operating very well for a very long time, nobody could impose their will on the Lord Advocate if she were to say, “I am terribly sorry, but this person is going to be tried in Edinburgh or Glasgow.”

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

I do not like disagreeing with the hon. and learned Gentleman, but if a prisoner were held in Glasgow or Edinburgh, that clearly would be the case. There would be no question of surrendering a prisoner to stand trial in Preston or Derby. However, if the person was held in the English and Welsh jurisdiction and part of the case against that person was that he had committed offences in Scotland, this provision gives a jurisdiction to the English court to hear the cases committed in Scotland under Scots law. That is what this provision says. If, in future, the Lord Advocate felt that it was in the public interest in Scotland for those cases to be heard under Scots law in Scotland, there is nothing she could do about it other than to invoke the protocols that are in place, which would have no statutory basis.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 3:00, 8 May 2008

It is at least possible, is it not, that the Lord Advocate might conclude that the interests of justice, that is to say the protection of the defendant, might require that defendant to be tried in Scotland, not least because there is a not proven verdict in Scotland? I can conceive of circumstances in which, trying to safeguard the interests of the defendant, one would say that the defendant had a better chance of a favourable outcome by being tried in Scotland than being tried elsewhere.

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

That is indeed the case. There is the further complication that it is quite clear that post-charge questioning will not happen under a Scottish jurisdiction, whereas it will in England and Wales. That was the clear evidence we were given. I think it is a good thing that it should happen, but there is nevertheless that difference between the systems. There might be a conclusion in the interests of justice on that basis.

I do not wish to prolong this any further. I think we have explored the issue, but I find the position adopted by the Minister—and, it would seem, though I regret it, by the hon. and learned Member for Beaconsfield—to be a flawed position. I think that this is a minor safeguard for circumstances that we cannot foresee, but which could cause considerable difficulty between the two jurisdictions at some stage in the future, unless it is resolved. I may come back to it on Report, but for the moment I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

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

You have been good enough to allow a fairly broad debate on the two groups of amendments, Mr. Bercow, so I can be much more brief than I had planned. The issues here are of some interest and, indeed, of some importance. I can summarise them very briefly because they have been much canvassed in the recent debate.

It would be helpful if the Minister could give a somewhat fuller statement of the circumstances in which it is likely that somebody would be moved from one jurisdiction to another for the purposes of trial. He has, quite fairly, identified instances where there are linked offences, and I can well understand that linked offences would justify an application for transfer.

There are other situations that I would like to explore with him. For example, is it intended to use the transfer provisions for the convenience of witnesses where all or most of the witnesses are in one part of the United Kingdom? Is that a consideration that comes into play? There is also, and differently, the possibility of prejudice. Let us, for example, remember the Enniskillen bombing. I could conceive that defendants might wish to be tried in England or Wales, or indeed Scotland, rather than in Northern Ireland, after an offence of that kind. Is it intended that these provisions shall be used in order to make a transfer where it could be deemed that it would be difficult for a defendant to get a fair trial?

The Minister has, as I understand it, changed his position on the question of Diplock courts. I understand him to say that he accepts that if there is a possibility of a person being tried without a jury as a result of the use of these provisions, steps will be taken, either by statutory language or otherwise, to ensure that nobody is deprived of a jury trial in a terrorist-related matter. I welcome that, and I hope that the Minister will make that position quite plain.

My next point flows from what the hon. Member for Somerton and Frome was saying about the value of the Lord Advocate’s evidence. He is of course entirely right. There may be very good reasons why it is not possible on a Committee of this size to have a fuller representation from the other parts of the United Kingdom. I understand that. It is a big Committee, but it may not be big enough for that purpose. Might I, however, suggest to the Minister, who has greater influence on these matters than do I, that, as a matter of general principle, where one is legislating in a way that affects the separate parts of the United Kingdom, and where, as is inevitably the case, all of us—on this Committee or on a similar Committee—have but limited experience, we invite the law enforcement agencies, for example, to give their opinion, in the first instance in writing, on relevant parts of the Bill, so that we do at least know the preliminary views. It might be proper to summon them to give evidence under Special Standing Committee procedures. But that is perhaps a wider issue. Will the Minister give that some consideration?

Finally, I welcome the Minister’s willingness to move on retrospection. My hon. and learned Friend the Member for Beaconsfield was right about subsection (6), but I have spoken about that already. There is an issue of principle, because people could be subjected to a less favourable trial than they might necessarily get in their country of usual residence. I made this point in an intervention on the hon. Member for Somerton and Frome. I have in mind the not-proven verdict, which of course is a more favourable position in Scotland than elsewhere in the United Kingdom. A Scottish defendant might well think it unfair to be transferred, by reason of retrospective legislation, to another country within the United Kingdom, because they would be deprived of the possibility of securing a not-proven verdict. If that was done retrospectively, there would be an important issue of principle. If he could give thought to that as well, I am sure that the Committee would be grateful.

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

All of those are perfectly reasonable points. I think that I have said very clearly that it is not the intention of clause 27 to get terrorist suspects to Diplock courts in Northern Ireland. If the provisions  need tidying up and strengthening to reflect that, notwithstanding what I said about not knowing fully whether we have started to dismantle the Diplock court arrangements in Northern Ireland, I shall come back to the Committee. It is a perfectly fair point.

I think that people are being unduly, but necessarily suspicious about the import and direction of subsection (6) on retrospectivity. I listened to the points, and shall try to provide a further explanation to allay the Committee’s genuine fears. It is not about a jurisdictional lotto—if I may use that phrase—or prosecutors touting around different jurisdictions trying to get the best case from their perspective, rather than that of the defendants. It is about terrorist offences and plots occurring in two jurisdictions. Clause 27 will be used only where a plot involves suspects in different jurisdictions.

A point was made about convenience for witnesses, but I do not think that that would prevail, save for the point that if the dominant elements of a plot require so many witnesses from a particular jurisdiction, it would probably imply that that is where the trial should take place in the first instance. However, there is a notion that a trial could take place in Glasgow, rather than London, simply because most of the witnesses are from Glasgow, even though at the time they were on a coach trip down to London, where the principal or core events took place, which would mean that the jurisdiction would rightly be London. Convenience in that sense is not the import or thrust of the clause.

A point was made about the fairness of being tried in one jurisdiction rather than another—the example of Enniskillen was given. Again, that was a perfectly fair point, but it has nothing to do with clause 27. The important points were those about jurisdiction raised by the Lord Advocate in her evidence. I can provide a very clear and sharp example, although I shall not go into too much detail, because I am not sure whether it is still sub judice—it might still be rattling along somewhere down the line. The example is London-Glasgow—to use the common parlance—by which I mean the events at Glasgow airport. The right hon. and learned Gentleman will know that they started in Haymarket with the two Mercedes-Benz cars filled with assorted paraphernalia, which happily did not go off. That is a clear case involving jurisdictional issues—happily, they were resolved. To be fair, that specific case, unusual though it was, prompted the Scottish and UK legal offices to look at clause 27 as a framework for dealing with such matters in the future. I repeat—I say this and something will happen in the next few weeks, although clearly I hope not—that it is very uncommon for something to be so starkly in two jurisdictions as that particular case was. That case prompted the activity. I think that I have clarified the example that was the precursor to clause 27 in the first place. I understand the points raised, although hopefully they are rather arcane and, although perfectly valid, such concerns will not stand up to further investigation in terms of retrospectivity. However, I will certainly explore the point about juryless trials. Clause 27 is not supposed to result in anyone faced with terrorist offences being put in front of a juryless court.

Question put and agreed to.

Clause 27, as amended, ordered to stand part of the Bill.

Clause 28 ordered to stand part of the Bill.