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Clause 72

Counter-Terrorism Bill – in a Public Bill Committee at 9:45 am on 15th May 2008.

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Control orders: meaning of involvement in terrorism-related activity

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 229, in clause 72, page 52, line 22, leave out subsection (2).

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

With this it will be convenient to discuss amendment No. 230, in clause 74, page 53, line 15, leave out subsection (4).

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

In clauses 72 and 74, there are amendments to the Prevention of Terrorism Act 2005. It is not always easy to understand the reasoning behind the amendments themselves, but I am prepared to accept that the amendments may be necessary.

In the case of clause 72 on the meaning of involvement in terrorism-related activity, the words

“to be involved in terrorism-related activity” are substituted by

“the individual concerned to be involved in conduct falling within paragraphs (a) to (c)”.

So, instead of relying of the definition of the words “terrorism-related activity”, in future it will rely upon the individual definitions contained in that part of the 2005 Act. I do not have a big issue with that, but then one sees the startling statement in subsection (2) that

“This amendment shall be deemed always to have had effect.”

This is a retrospective amendment to be carried back, presumably to the time when the Prevention of Terrorism Act 2005 was first enacted, which means that a person could not subsequently argue that because it was being suggested that the offence that they might have committed came in prior to this Act, they were not involved in a terrorism-related activity, even though it might have fallen within paragraphs (a) to (c).

The Minister will not be surprised to learn that I do not like that amendment. It is our task as parliamentarians to draft statute, and people are entitled to rely upon statute for their protection. When Sir Thomas More was confronted with the Act of Supremacy and with having to take the oath at Lambeth palace, he asked for a copy of the statute from which the oath had been drafted and pointed out to his interlocutors that he considered that the oath did not follow the terms of the statute. Much good did it do him, mind you, but it is an early example of the proper reliance that people in this country have been entitled to place upon the words that Parliament enacts.

We live in a society where you are entitled to do what you like unless Parliament prohibits it. This form of retrospective removal of a possible right that could be invoked by a defendant does not commend itself to me, and I need a lot of persuasion from the Minister as to why it should be included. It applies equally to the question of the application for anonymity for a controlled person where, again in clause 74, it says these amendments shall be deemed always to have had effect.

Will the Minister explain the scope of both the amendments of the Terrorism Act and also explain why, quite exceptionally it seems, that it is necessary that these amendments should be deemed always to have had effect?

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

I rise to support what my hon. and learned Friend has said. It is very important that this House, and thus this Committee, should not pass retrospective legislation. As I understand the intention of clause 72, it is either to define more clearly or to enlarge the class of activity that might trigger an application for control orders. Control orders are essentially penal in their consequences, although they are not treated as such by the Government.

I agree with my hon. and learned Friend that people should not be subjected to restrictions on their liberty as a result of retrospective legislation. If there is no powerful justification for what is being done, I hope that we will divide the Committee on this subject.

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

I understand perfectly the concerns, but I hope that I can allay them, because the measure is not meant to enlarge anything—it is meant to do the reverse. I understand the objections to retrospectivity as well. I am grateful to the hon. and learned Member for Beaconsfield for invoking one of my heroes, although I am not going to go down the road of the life and times of Thomas More.

The amendments seek to delete a similar provision contained in the two different clauses 72 and 74. It may help if I talk about the background. The purpose of clause 72 is to remove two potential ambiguities in the definition of terrorism-related activity in the Prevention of Terrorism Act. Section 1(9)(d) of the Act currently includes the phrase

“conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity.”

That could be read as including individuals who unknowingly provide support or assistance to those involved in terrorism-related activity. In other words, the definition could currently include an individual A supporting an individual B whom the Secretary of State knows or believes is a terrorist, even though A does not know or believe that B is a terrorist. That is the thrust of the definition as currently drawn, which was never the intention.

I assure the Committee that the current provision has never been interpreted in that way, but none the less the ambiguity is there. The clause therefore amends the Prevention of Terrorism Act 2005 to ensure that the definition includes only those who provide support or assistance to individuals who are known or believed by the individual concerned to be involved in terrorism-related activity. Rather than enlarge, it narrows the focus of the import of the original definition.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am delighted to learn that, but in the circumstances, and granted that the Minister has said that the power has not caused any problems in the past, why are we putting in a retrospective clause for its operation? I suggest that the measure is not necessary, and on the whole I would prefer not to see it.

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

On balance, my advice is that it probably is necessary. I take the hon. and learned Gentleman’s points, as I said earlier, about the construct of the thing. The current definition also includes a potential circularity. Under the current definition, individual X could have a control order imposed on him because he was supporting individual Y, who in turn was known or believed to be supporting an individual Z who was involved in terrorism-related activity. There could be any number of links in this chain, all of whom could, in theory, have a control order imposed on them. The definition of those captured by the Prevention of Terrorism Act 2005 is not intended to be that wide and has never been used in that way, but the ambiguity is still there. Clauses 72 and 74 simply remove that circularity, ensuring that only those who provide support or assistance to someone directly involved in terrorism-related activity are included in the definition of terrorism-related activity. In the example given, only Y would be caught by the revised definition, not X.

Those paragraphs may be otiose and over-cautious, but my advice, which has persuaded me, is that on balance they are necessary. If we accept that—I know that it is terribly offensive—given that narrowing of the definition, notwithstanding the fact that it has never been interpreted in that way, it would be foolish and illogical not to return retrospectively to 2005 in terms of narrowing the definition. I know that that sounds terribly complicated, but I am assured that it is necessary and worthwhile.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

Obviously, we have to be careful with retrospection, but I have found one sentence in the explanatory notes that sums up the situation:

“This amendment will be deemed always to have had effect, to reflect the original policy intention and current practice.”

That is not very persuasive—those are fairly empty words, to be honest. I am sure that if the Minister were on the Opposition Benches, he would feel equally concerned about retrospection in this context. He says that on the balance of probability it is necessary, but it is a rather huge step, is it not?

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

I do not want the Committee to think that I have anything but the same aversion to retrospection in the law as the Committee does. I am not diminishing the importance of not being retrospective in legal practice. If, however, clauses 72 and 74 were not included simply because over the past two or three years they have not been interpreted in the way in which I have described, the provision might be interpreted with a definition that is too broad and that encompasses people in the net in a way in which the principal policy did not seek to do in the first place. Over-cautious or otherwise, it would be illogical not to amend the legislation and introduce retrospection.

If we were to try to achieve the same thing by another route—through the code of practice or whatever else—we could say, “From now on, this is what the Government clearly meant; we are very grateful that people have not interpreted the definition in the potentially wider context that they perfectly fairly could have done and from now on we’ll make sure that they won’t” If we were to do that, however, there would still be a chance—it would be remote—that the activities of someone who is up for a control order between 2000 and 2008 would come under the current broader definition of the Prevention of Terrorism Act 2005 as the grounds for the control order. Under clauses 72 and 74, however, the same person with the same network and the same behaviour would quite rightly be outside the net in terms of control orders, which was the original intention. On balance, I do not think that the change is over cautious. I appreciate that its presentation is terribly clumsy, as is the language, but on balance it is the right and necessary thing to do.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 10:00 am, 15th May 2008

There are two issues here. First, there is the principle. I am very much against retrospective legislation. I do not like seeing it in statute because it can be invoked later as a precedent. The basic principle against retrospectivity is a very important one to which we need to cling. The Minister has made a perfectly decent argument, but it has one fatal flaw. Applications for control orders—this is the triggering mechanism that we are debating—are within the exclusive control of the Executive. If the Executive, through the right hon. Gentleman, says that the interpretation he has given is correct and that they will not be seeking a control order in the future in the widest sense, we have safeguarded the situation. That is partly because an application will not be made. If it was made it would be contrary to the statement of Government policy and I should have thought that the courts would decline to support the making of the control order.

When one weighs up the undesirability of the precedent and the degree of risk that has been met by the Minister’s statement, I should have thought that the argument rested against putting this in the Bill. I suggest that the right hon. Gentleman reflect on the matter and that we do not press it to a Division at this stage. Subsequently, he might care to remove the clause but make a firm statement of Government policy, which would be binding on the Government in future matters.

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

I am grateful that the right hon. and learned Gentleman suggests that he will not press the amendment. I will happily take this away to reflect on it. I already have done, by the by. If this can be achieved by a firm statement of Government policy, I am happy to look at that and report back to the Committee and the House on Report, but I shall retain the option to confirm clauses 72 and 74.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I listened to what my right hon. and learned Friend the Member for Sleaford and North Hykeham said and there may be good grounds for withdrawing the amendments at this stage. However, the matter leaves me profoundly uneasy. I do not like the principle. The logic of the Government’s position is not entirely clear to me. I appreciate that the desire is not to widen the scope of control orders but to narrow them. In short, the Government have concluded that the current architecture of the control order system might lead to a result that the Government did not want, in that a control order could be granted in circumstances that they would regard as not being justified. Therefore they want to close that down and to do so in a way that deems that the closure dates back to the original control order architecture of 2005.

On the face of it, the Government’s justification for this is that it is entirely a matter that will favour the person who might be subject to a control order. There may be an alternative way of looking at this, although the Minister may wish to reassure me that I am wrong. Control orders, by their very nature, walk a delicate tightrope within the limits of acceptability under the European convention on human rights. If in the original drafting in 2005, the scope of the possible application of the power was placed too wide, it could be argued that that might be a ground on which a person made subject to a control order in the future might say that the scope of the entire control order system could not be upheld because it was too widely drawn and that that was an example of it. I do not know. These are recondite legal arguments, but I can see how it might happen. I cannot help but think that that is the Government’s more likely fear, than that they would try to seek a power that they are not comfortable with within the scope of the 2005 orders.

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

What the hon. and learned Gentleman says perfectly illustrates the fact that it is time that we revisited the control order regime to see how it could be improved and how some of its defects, which have come to light through legal judgments and elsewhere, could be addressed. I do not believe that this is the right time to do so and I look forward to this afternoon’s session, although we cannot possibly do the  matter justice in the context of the amendment tabled for that purpose this afternoon, and it is entirely probable that we will not wish to enter into a debate on it. Does the hon. and learned Gentleman agree that it is time that we revisited the Prevention of Terrorism Act 2005 and looked at the matter in the round?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I do agree with him. He will recollect that my party has supported renewal of the control orders on a number of occasions, but that we indicated on the last occasion that we hoped that this Bill might provide an opportunity for us to look at the matter again in some detail. I fear that that will not happen, partly because the Government themselves have not come forward with a series of amendments to trigger it and because the necessities of time make it unlikely that we can consider it in proper detail this afternoon.

I am mindful of the hon. Gentleman’s amendments. I saw that he had tabled them, and if he had not, I probably would have tabled some of my own. I doubt that we will have a better opportunity on Report, but this little matter of a flaw in the control order mechanisms that the Government have picked up on classically illustrates why an overview of the matter may be desirable—not in the sense of getting rid of control orders altogether, because we have always accepted that they may be an unpleasant necessity. We have held that opinion for some time, though we have been unhappy about them, as I am sure the Government are.

The basic issue is whether we should press the matter to a vote at this stage. I am slightly swayed by the opinion of my right hon. and learned Friend and I will seek to withdraw the amendment, but I am unhappy about the principle of retrospectivity and would be minded to return to it on Report if the Government cannot come up with a better formula for dealing with it. The Minister might like to note what I have said and, with regard to my anxiety about this being a possible loophole that a defendant could properly exploit to attack the principle of control orders, reassure me that that is not the Government’s main motivation, rather than clearing up an area where the Government think that they might use excessive powers, although of course in practice I am sure that they have no intention of doing so. Subject to that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 72 ordered to stand part of the Bill.

Clauses 73 to 76 ordered to stand part of the Bill.