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Clause 62

Counter-Terrorism Bill – in a Public Bill Committee at 5:00 pm on 13th May 2008.

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Initial exercise of powers by Lord Chancellor

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 209, in clause 62, page 44, line 1, leave out subsection (3).

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss amendment

No. 222, in clause 90, page 59, line 34, leave out from ‘proceedings)’ until end of subsection and insert

‘shall not come into effect until the rules of court have been approved by a resolution of each House of Parliament as provided for in section 62(4).’.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Clause 62 is about the initial exercise of powers by the Lord Chancellor. It explains that the Lord Chancellor may exercise his powers by making rules of court. Subsection (3) states:

“The requirements of subsection (2)(a) and (b)”,

which relate to consultation with the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland,

“may be satisfied by consultation that took place wholly or partly before the passing of this Act.”

I would like some clarification from the Minister. Am I to assume that the consultation has already taken place or that it will take place before the Act comes into force? Or should I assume that, in fact, there is no consultation because it took place when the rules of court were brought in for control orders? It will be useful for the Committee to know that. In addition, amendment No. 222 requires the resolution of both Houses of Parliament before any rules of court are brought into effect.

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

Under the Bill, the asset-freezing provisions come into force at Royal Assent. Therefore, if the amendments are accepted, we will have a period in which the rules of court will not have been consulted on or agreed but the personal parts of the Bill will be in force, which is clearly not appropriate. As the provision says, we need to have a full and substantive consultation. None the less, it is highly desirable that the rules of court, which are made under clause 62 and the contents of which are provided for in part by clauses 57 and 58, should have effect as soon as possible after part 5 of the Counter-Terrorism Act comes into force. That is because the rules of court will set out the procedure which is to apply to the appointment of the special advocate, for which provision is made in clause 59.

As the hon. and learned Member for Beaconsfield said, part 2 states clearly that we should properly consult with the Lord Chief Justice of England Wales on the rules applicable in England and Wales, and the same for Northern Ireland. That is right and proper. It is simply a matter of timing so that we have the consultation on the rules of court taking place at the same time as we bring in part 5. The notion of part 5 commencing before the rules of court are in place is inappropriate. The notion that there should be any delay in the implementation of part 5—contiguous hopefully with Royal Assent—would be unfair to the individuals concerned. Therefore, it is a matter of timing. We want as much consultation as possible, but we want to do it in a timely fashion.

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

I understand entirely what the Minister is saying, but he has created a bit of a conundrum here. If the commencement is at the point of Royal Assent, and the proceedings cannot take place without rules of court, the Lord Chancellor is under a duty that applies before consent is given to the Act. That is a very odd thing to put into legislation; a duty that must have been fulfilled before the Bill is an Act in order to apply the duty to the Lord Chancellor. Does the Minster accept that that is a slightly topsy-turvy, Humpty-Dumpty way of making a decision?

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

I shall not delay the Committee in the context of whether I think it is topsy-turvy, Humpty-Dumpty or any other such provision. The key purpose is that part 5 should come into effect as soon as is  practicable—at Royal Assent for example. We have just discussed how the asset-freezing provisions can impact very directly on individuals.

To answer the hon. and learned Member for Beaconsfield, there has been a good deal of consultation within the relevant Departments, but not yet with the Lords Justices of Appeal in respect of England and Wales and Northern Ireland, because the draft is not in that sort of shape yet. Yes, that consultation has to happen and, yes, Parliament must deliberate on the matter as well. I assure the Committee that it is only a matter of time.

We should consider the import of the direct effect on individuals of the provisions set out in part 5, notwithstanding the hon. and learned Gentleman’s earlier point about what may or may not happen in terms of the appeal while the Bill travels gently through both Houses of Parliament. Things may be topsy-turvy and Humpty-Dumpty, but I thought that all hon. and hon. and learned Members had agreed that, given the import of the effect that the provisions will have on an individual—they can be extensive and serious—the sooner the measure is in place with a special advocate apparatus around it, the better for all concerned.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

If I were being slightly naughty—and I shall be—I would gently say to the Minister that there must be a cost involved in this consultation. If the consultation takes place and, for whatever reason, the Bill never gets on to the statute book, money will have been wasted. I appreciate the Minister’s point, but there is an anomaly about providing a mandatory requirement on the Lord Chancellor to do something that only becomes mandatory when the Bill is enacted, although he will have done it before it all happens. This is not the first time that we have encountered such anomalies. I dare say that, if we changed the rules so that Ministers had to pay out of their own pockets for any money wasted as a result of a Bill not being enacted, this practice might cease.

I am pleased to hear that there will, at least, be consultation on the provisions that we are talking about. It is not deemed, as I thought might be the case, that the previous consultation would be sufficient. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 62 ordered to stand part of the Bill.

Clause 63 ordered to stand part of the Bill.