Schedule 4

Counter-Terrorism Bill – in a Public Bill Committee at 12:00 pm on 13 May 2008.

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Notification orders

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

I beg to move amendment No. 48, in page 75, line 25, at end insert ‘and

(c) the court exercising jurisdiction under that law has not, in respect of the corresponding foreign offence, relied on evidence or information obtained through torture, duress or other means that would render such evidence or information inadmissible in a court in the United Kingdom.’.

The purpose of this amendment is to enable the Minister to give assurances that I hope he will be happy to do in respect of the schedule and conditions for making a notification order concerning an offence that is tried under law enforced in a country other than the United Kingdom. I believe that the spirit of our treaty obligations requires us not to make such an order in respect of an offence that is tried using evidence that would be inadmissible in this country by reason of it being obtained under duress or by torture. I certainly think that that is an obligation in any country with which we have dealings and under this provision within the Council of Europe or the European Union, but I would like an assurance that that will be the case in any jurisdiction. I do not want people who have been tortured, for example, in Uzbekistan, and found guilty of an offence using the evidence obtained by torture to find themselves subject to further penalties, even of this kind, in this country as a consequence.

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

Perhaps we should keep in mind that some of the practices of the United States Government are quite unacceptable, particularly the long periods of detention in Guantanamo Bay and the practice of water-boarding, which the President of the United States appears to have sanctioned. We should keep in mind that the Government of the United States are using methods that have the result of providing information in circumstances that we would regard as wholly unacceptable.

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

I have that at the forefront of my thoughts. It is not merely those countries that are openly despotic, but those countries that would say that they accept the same principles of law that we understand in this country, who nevertheless feel that there are exceptional circumstances that allow them to use processes that in anybody’s book come under the categories of duress or torture in order to gain evidence. The United States has a very serious charge against it; indeed I was one of many colleagues—I think the right hon. and learned Member for Sleaford and North Hykeham may have been another—who was amicus curiae in the case on Guantanamo Bay in the United States on precisely this  issue. It does concern me, so I shall listen very carefully to what the Minister has to say. There are countries to which it is obviously applicable and there are others to which it is less obviously applicable, but under either circumstance, courts in this country should not be making legal orders on the basis of evidence that is inadmissible in this country because it is obtained from unsavoury practices that would be illegal within this country. That is the assurance, in very clear terms, that I want the Minister to give me this morning.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am sympathetic to the point raised by the hon. Member for Somerton and Frome, and indeed my concerns about this go further. We are setting up a system that requires notification of conviction for foreign offences and whilst in many cases this may present no problems in the general acceptance that the individual has been justly convicted in a foreign country of a terrorist offence that requires notification, I can readily envisage that perhaps, unlike sexual offences, there may be instances where individuals challenge the basis on which they were convicted and whether in fact their actions constituted a terrorism offence. This may well turn out to be a fertile field for judicial review applications.

Can one be required to notify, or to go through a notification procedure which, as the Government have acknowledged—because they cannot make it retrospective—has an element of a penal sanction, and can that be done in circumstances where a court in this country cannot be satisfied that the offence was in fact committed? Clearly, taking the hon. Gentleman’s example, if there is evidence that the conviction was obtained on the basis of evidence obtained under torture, for reasons that we have already rehearsed very well in this country, we know that the courts will not be very sympathetic to that. I think it could even go wider and I wonder what view the Government have as to the chances of this being a contentious area, because I think it may well turn out to be so.

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

My hon. and learned Friend is obviously right when he talks about the risk of judicial review. For example, does he not accept that where a person has been brought, say to the United States, through the process of extraordinary rendition, that person might well challenge notification in this country on the grounds that extraordinary rendition is so gross an infringement of human rights as to constitute an abuse and that no trial should be allowed to proceed on the basis of such extraordinary rendition.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. and learned Friend makes a good point. If in future individuals are released from Guantanamo Bay and end up back in this country with a conviction before a military commission at Guantanamo Bay and somebody says that they have to register a notification in this country, I should have thought that would be challenged pretty readily and that a challenge may well succeed, not necessarily on the basis that the evidence may have been obtained under torture but on the basis of the lack of proper due process in the trial.

This is a matter of hypothetical speculation at the moment but it is not difficult to see this happening, particularly, as the Minister knows, when we debated the last Terrorism Act there was considerable anxiety as to what constituted the definition of terrorism. For those reasons, I do not think this will be an area without controversy.

For the present, I would be interested to hear the Minister’s views and comments. If it were to be established that the person’s conviction had been obtained in the circumstances in amendment No. 48, I should have thought that a challenge to the notification order is likely to be successful. For the reasons that I have given, I can also think of other circumstances in which challenge to the notification process might be successful. I wondered what the Government thought about it.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 12:15, 13 May 2008

I support what has been said by my hon. and learned Friend the Member for Beaconsfield and by the hon. Member for Somerton and Frome. It is clear that the notification procedure brings with it some penal sanctions. It may not strictly be a penalty but it imposes restrictions and obligations that are analogous to a penal sanction. However, one has to ask whether, as a matter of policy, one wants to use it when the underlying criminal conviction was obtained in circumstances that would not justify conviction within the courts of England, Wales or Scotland.

I have the gravest anxieties about some of the processes currently sanctioned by the American Administration. Extraordinary rendition is wholly and utterly wrong. Guantanamo Bay is a stain on the reputation of a common law country. Water-boarding is so disgraceful that I find it difficult to understand how the United States President can think it is in any way proper to give it presidential validation. This is a good opportunity for the British Government to say, “Up with this we will not put.” I would not mind some specific statement to the effect that so long as a United States Government use these practices in respect of any conviction that is procured in any of those circumstances we will not seek for one moment to obtain a notification order.

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

I fully understand the thrust of this amendment and support the principle of it.

With respect, I do not need lectures from the right hon. and learned Member for Sleaford and North Hykeham about our objection to Guantanamo, torture or any such matters. The Government have been there right from the off and we do not need to say now or at any other stage, “Up with this we will not put,” as he so quaintly puts it, because we never have put up with it and have made our position abundantly clear. I regard his comments about what the President says as ranking with one of the latter Presidents who described tomato  ketchup as a vegetable, and will treat it with the same disdain. But I do not need lectures, with the greatest respect, not given some of the activities of the last Conservative Government in this regard, which we will go into at another time, as I do not want to provoke anyone in that matter.

There are practical and serious difficulties with the broad sweep of what the right hon. and learned Gentleman is saying. The amendment could be interpreted as saying that anything offered in the context of a conviction abroad that did not comply with the admissibility criteria for evidence in this country could not be accepted. I understand that that is not the way that the hon. Member for Somerton and Frome sought to draw it, but that could be inferred.

As the hon. and learned Member for Beaconsfield suggested, we could effectively have mini reruns of foreign trials in our common law framework to see whether we should uphold the conviction. I know that that is not the intention of the amendment, but it could be a consequence in practice. However, I accept the broad thrust behind the amendment of not condoning torture or information coming from torture.

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

Does the Minister understand that the judicial review process, to which my hon. and learned Friend the Member for Beaconsfield referred, would inevitably bring the court to which the application is made to consider the underlying soundness of the conviction? The kind of points that have been made by the hon. Member for Somerton and Frome, my hon. and learned Friend the Member for Beaconsfield and myself will come into play at that point. The court to which an application for judicial review is made is bound to consider the underlying fairness of the conviction on which reliance is placed.

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

I thank the right hon. and learned Gentleman for the echo. That is entirely the point that I just made. I am sympathetic to what the hon. Member for Somerton and Frome is seeking to achieve, but I do not think that it is in line with the practicalities of his amendment. The practicalities go beyond the thrust and import of his arguments to the possibility of our courts under judicial review assessing the viability of the evidence per se and whether it is admissible.

I am absolutely behind the broad principle, notwithstanding the difficulties that it would cause. The internationalisation dimension of the notification regime does do that, but I am not convinced that the form in which he offers it is quite the way to go forward. I ask him to withdraw the amendment and I will give the matter serious consideration to see if we can include it in the Bill because I have not one dispute with the overall thrust of the amendment.

My last point is that twice people have suggested that notification is a penal sanction. It most profoundly is not. I offered up the amendments that made this a fairer regime because any requirement or obligation under law should be fair and proportionate. It was not a recognition that notification is somehow a penal sanction. I say sincerely that it profoundly is not. I have let two or three people get away with saying that the Government were seeking a penal sanction with notification. That is most profoundly not the case.

I ask the hon. Gentleman to withdraw the amendment and it will be given serious consideration before Report stage.

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

I am not sure whether to thank the Minister for that last point, but I thank him for his helpful comments. I do not entirely accept his interpretation of the amendment because I do not think that it throws into question the admissibility of any evidence, which he has quite clearly defined as being obtained under duress.

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

Or other means that would render it inadmissible. One can always extend the excerpt that one uses for elucidation, but I think that the amendment is quite narrowly drawn. I am grateful to the Minister for his assurance that he will look at this matter again.

I confess my ignorance on the matter raised by the hon. and learned Member for Beaconsfield, the right hon. and learned Member for Sleaford and North Hykeham and the Minister about whether the notification order would be subject to judicial review or whether it is an action by the court as framed in the context of the Bill. I am not clear on that, but perhaps it could be elucidated.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It would be subject to review for two reasons. First, it goes with the conviction of the individual in this country and, secondly, in respect of a foreign offence, as I understand it,

“the defendant serves on the applicant, not later than rules of court may provide, a notice...stating that, on the facts as alleged with respect to the act concerned, the condition is not in the defendant’s opinion met”.

Although he is able to challenge it, he is simply served with an order that he must provide notification. That is a ministerial action and, in those circumstances, it must be possible to review it.

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

The hon. Gentleman is probably right in this case, but I am less convinced about an ab initio notification as a result of the offence being tried under a British jurisdiction.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

In the case of a sanction being imposed following a conviction in this country, it is more difficult to see what there is to review. There might be reviews further down the road, on the basis that it is no longer proportionate to rights contained in the European convention on human rights, but that is the only thing that I can think of. I can think of 101 reasons why somebody convicted in a foreign court might seek to have that position reviewed.

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

I am now better educated and understand the parameters that are available to the person on whom the notification order is placed.

If the interpretation made by the hon. and learned Member for Beaconsfield is correct—I have no reason to suppose that it is not—it is almost inevitable that these matters will be challenged if there is the slightest doubt about the appropriateness of the original  sentence or about the proceedings in which the original sentence was given under a foreign jurisdiction. That being the case, any declaratory statement that could be made in the Bill—the Minister suggested he would consider that—would be helpful, as we always say, for the avoidance of doubt. I am clear about the Minister’s intention in this respect and I think that he shares my view. That being so, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 157, in page 75, line 33, leave out lines 33 to 35 and insert—

‘(ii) would have been so imprisoned or detained but for being unlawfully at large or otherwise unlawfully absent, lawfully absent on a temporary basis or on bail pending an appeal, or

(iii) had been released on licence, or was subject to an equivalent form of supervision, having served the whole or part of a sentence of imprisonment for the offence.’.—[Mr. McNulty.]

Schedule 4, as amended, agreed to.