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Clause 3


Mr. Simon Hughes: I beg to move amendment No. 24, in clause 3, page 2, line 14, leave out from "under" to "may" in line 16 and insert "this Act".

The First Deputy Chairman: With this it will be convenient to discuss amendment No. 25, in page 2, line 19, leave out subsection (5).

Mr. Hughes: This will be a brief contribution, Mr. Martin. The amendments are about what procedure the House will retain for controlling orders that will be made under the Bill when it is enacted. On Thursday, the Home Secretary announced that he had accepted

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representations from Opposition parties and outside that the Act should have a limited life of five years and that the controversial banning order and summary detention powers should be the subject of renewal orders. The renewal order provision needs a positive motion of the House to be confirmed and the summary detention order and the banning order require the House to be asked its view every year.

The amendments seek to make sure that all the orders that come under the Bill are covered by the affirmative order procedure. The other day, I put it to the Home Secretary that the powers that he has reserved to himself in clause 3 are Henry VIII powers. He said that they were not; they were Edward II powers--puny little extras which allow the Home Secretary to do little things at the edges. I am prepared to go halfway; they may have to be tied to the Bill, which refers to

provisions. Some could be persuaded that those provisions could go quite wide if one wanted them to.

There are certain things that we hope are included. The right hon. Member for Maidstone and The Weald (Miss Widdecombe) and her colleagues have referred to the power to make provisions for compensation, legal aid and other things. That would be consequential, so we want to make sure that there are powers available. The general principle is that we ought to have the ability to have a debate on a Bill that is clearly controversial and it ought not to be left to the rather uncertain negative resolution procedures of the House as to whether or not the orders renewing the controversial parts of the Bill are passed by the two Houses.

Amendment No. 24 would sweep the whole Act into the affirmative resolution procedure, while amendment No. 25 takes out the exception so that the rest of the matters that are not specifically provided for would be dealt with under the negative resolution procedure. The amendments go together, and they are straightforward. I can indicate now that we do not propose to divide the Committee on this matter. I hope that the Government will be positive and will give us one generic piece of information. What do they intend to use the power for? What powers will have to be introduced? If the Minister is as helpful as possible about that, it will alleviate some of the concerns.

11 pm

The Minister of State, Home Office (Mr. Charles Clarke): The powers invested in the Secretary of State to make orders under the Bill are limited to "supplementary, incidental or consequential" provisions. Such powers are well precedented, for example in the Criminal Justice and Court Services Bill and the recent Greater London Authority Act 1999. The Bill already requires the affirmative resolution procedure for any amendment to primary legislation and for any order extending the life of the powers under new sections 14B, 21A and 21B.

In accordance with the precedents that I mentioned, other amendments to secondary legislation can perfectly appropriately be dealt with under the negative resolution procedure, which ensures adequate parliamentary scrutiny. Among the matters that may be dealt with by such secondary legislation is the legal aid entitlement of persons issued with a notice to appear before a magistrates court.

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For those reasons, the Government are resisting the amendment. I appreciate the motives behind it, but we believe that our approach in the Bill should be similar and equivalent to the way in which we have dealt with these issues in other legislation.

Mr. Peter Bottomley (Worthing, West): Can the Minister say, off the cuff, whether there are also precedents for allowing the affirmative resolution procedure for amending secondary legislation?

Mr. Clarke: I believe that there are precedents, but I cannot give them off the cuff.

Mr. Oliver Heald (North-East Hertfordshire): The Data Protection Acts.

Mr. Clarke: The hon. Gentleman is always extremely helpful in all matters concerning the welfare of the nation. He gives one example of a precedent, but I was going to offer to write to give further precedents to help the hon. Member for Worthing, West (Mr. Bottomley).

I hope that the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) will withdraw the amendment.

Mr. Simon Hughes: The Committee will have heard what the Minister said. He has been helpful in giving us an example of what the Government would use the power for. We have the power in both Houses to have a compulsory vote on important renewal matters. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4


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

The First Deputy Chairman: With this we may consider amendment No. 10, in schedule 1, page 9, line 51, at end insert--

'(8) The Lord Chancellor shall ensure that during any control period a magistrates' court is convened for the purpose of hearings under this section at each port and airport in England and Wales that is a designated port under Schedule 7 of the Terrorism Act 2000.'.

Miss Widdecombe: I want to speak to the amendment. The Home Secretary and the Minister will know that the Opposition attach great importance to this matter. We have made it clear throughout that, unless this can be resolved in one form or another, we will not be able to support the Bill at subsequent stages. Should the amendment fall, which I hope that it will not, we will seek to examine the issue again with a view to finding some means of dealing with it in another place.

The issue, which I raised on Second Reading, concerns the availability of magistrates at the ports and airports. We are very concerned that speed is of the essence in dealing with these cases. I have already pointed out that I am concerned about the civil liberties not of hooligans, but of the innocent.

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People will need to travel and their arrangements will be time sensitive. It could be something as serious as travelling to see sick relatives, something as commonplace--but still important--as travelling on business, or simply a matter of missing a match if the process is unduly delayed. It could even be a matter of missing connections if a person does not get a particular flight.

There will always be cases in which a particular urgency to travel is pleaded. Even with the Government's welcome improvement of reducing the 24-hour period, the fact is that there will still be some urgent referrals to be made. Those would be best served if magistrates were present at the ports to sit and hear a case immediately, when that was feasible in terms of the evidence being presented and the case made by the person who had been detained. If the Government will not accept that, they must provide some optional arrangement that will serve to convince the Committee that it will always be possible for an urgent case to be heard immediately.

On the last day of the five-day process, when it is crucial for people to travel if they are to see the match, those detained must have immediate access to a judicial process. After all, they may be perfectly innocent and not travelling to the match to cause any trouble, but may have been caught up in the process--and not even the Home Secretary would claim that in 100 per cent. of cases will the person involved be proved to be worthy of detaining and prevented from travelling. It is crucial that the Government accept amendment No. 10 or put forward a substitute for it in order to secure our support for later stages of the Bill. I intend, therefore, to press the amendment to a vote.

Mr. Malins: I rise in support of my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) on amendment No. 10. It is important that rapid justice be provided at the ports and airports. I do not know how many designated ports are listed in the schedule to the Bill, but some of the airports and ports, such as Dover, already have courts in operation. There is no court at Heathrow, but there is one close by.

My right hon. Friend said that a magistrate should be present, and I would add that a metropolitan or provincial stipendiary magistrate would be a useful addition if cases needed to be heard expeditiously. That point is no reflection on the lay bench, but lay magistrates sit in threes and that makes the process longer. Anyone who has practised in the courts will know that a lay bench takes longer to reach a decision. It is no better or worse a decision than that reached by a stipendiary magistrate, but the bench needs to retire together to consider the matter. If speed is necessary, there is a strong argument for having available a pool of stipendiary magistrates--I have declared my interest in previous debates--because that would speed the judicial process at the ports in question. My right hon. Friend is correct to stress that point.

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