House of Commons Amendments

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Consideration of Bill: 10th June 2008
2608

Counter-Terrorism Bill, continued

Independent review and report

Secretary Jacqui Smith

NC29

To move the following Clause:—

‘(1)
After the end of any period during which an order was in force under section

[Power to declare reserve power exercisable], the person appointed under section

36 of the Terrorism Act 2006 (c. 11) (review of terrorism legislation) must—

(a)
carry out a review in accordance with this section, and

(b)
send a report on the outcome of the review to the Secretary of State.

(2)
The review must consider—

(a)
whether before making the order the Secretary of State received a report

complying with the requirements of section [Report of operational need

for further extension of maximum period of detention] (report of

operational need for further extension of maximum period of detention),

and

(b)
what information was before the Secretary of State as to the matters

mentioned in the statement required by section [Statement to be laid

before Parliament] (statement to be laid before Parliament),


and the report must state whether in the opinion of the person carrying out the

review the decision of the Secretary of State to make the order was, in all the

circumstances, reasonable.

(3)
The review must consider the case of every person who was detained in

pursuance of a warrant of further detention in which the specified period was

extended beyond 28 days.

(4)
The report must state with respect to each case whether in the opinion of the

person carrying out the review—

(a)
the procedures applicable to the making of an application to extend

beyond 28 days the period specified in a warrant of further detention

were properly followed, and

(b)
the requirements of—

(i)
Parts 1 and 2 of Schedule 8 to the Terrorism Act 2000 (c. 11)

(treatment of detained persons and review of detention), and

(ii)
any applicable code of practice under section 66 of the Police and

Criminal Evidence Act 1984 (c. 60) or Article 65 of the Police

and Criminal Evidence (Northern Ireland) Order 1989 (S.I.

1989/1341 (N.I. 12)),


were complied with.

(5)
The Secretary of State may pay the expenses of the person who conducts a review

under this section and also such allowances as the Secretary of State determines.

(6)
The report under this section relating to any period during which an order under

section [Power to declare reserve power exercisable] was in force must be sent

to the Secretary of State not later than six months after the order ceased to be in

force.

(7)
The Secretary of State must lay a copy of the report before Parliament as soon as

reasonably practicable.

(8)
In this section “warrant of further detention” and “the specified period” (in

relation to such a warrant) have the meaning they have in Schedule 8 to the

Terrorism Act 2000.’.

Consideration of Bill: 10th June 2008
2609

Counter-Terrorism Bill, continued

Amendment to the Civil Contingencies Act 2004

Secretary Jacqui Smith

NC30

To move the following Clause:—

In section 23 of the Civil Contingencies Act 2004 (c. 36) (limitations of

emergency regulations), after subsection (4) (provision that may not be made)

insert—

“(4A)
In subsection (4)(d) the reference to alteration of procedure in relation to

criminal proceedings includes alteration of the period for which a person

may be detained under section 41 of the Terrorism Act 2000 (arrest

without warrant of terrorist suspect).”’.

Independent legal advice

Secretary Jacqui Smith

NC32

To move the following Clause:—

‘(1)
Before making an order under section [Power to declare reserve power

exercisable] the Secretary of State must obtain for the purposes of sections

[Notification of chairmen of certain committees] and [Statement to be laid before

Parliament] independent legal advice as to whether the Secretary of State can

properly be satisfied of the matters mentioned in section [Statement to be laid

before Parliament](2).

(2)
“Independent legal advice” means advice from a lawyer other than a government

lawyer.

(3)
A “lawyer” means—

(a)
as respects England and Wales, a person who, for the purposes of the

Legal Services Act 2007, is an authorised person in relation to an activity

which constitutes the exercise of a right of audience or the conduct of

litigation (within the meaning of that Act);

(b)
as respects Scotland, an advocate (whether in practice as such or

employed to give legal advice), or a solicitor who holds a practising

certificate;

(c)
as respects Northern Ireland—

(i)
a barrister (whether in practice as such or employed to give legal

advice); or

(ii)
a solicitor who holds a practising certificate.

(4)
Until the commencement of the relevant provisions of the Legal Services Act

2007, the following is substituted for subsection (3)(a)—

“(a)
as respects England and Wales—

(i)
a barrister (whether in practice as such or employed to

give legal advice);

(ii)
a solicitor who holds a practising certificate; or

(iii)
a person other than a barrister or solicitor who is an

authorised advocate or authorised litigator (within the

meaning of the Courts and Legal Services Act 1990);”.

Consideration of Bill: 10th June 2008
2610

Counter-Terrorism Bill, continued

(5)
A “government lawyer” means a lawyer who holds, or has held, an office (other

than judicial office) or employment under the Crown.

(6)
If an order under section [Power to declare reserve power exercisable] is made

the Secretary of State must lay before Parliament at the same time as the

statement required by section [Statement to be laid before Parliament] a copy of

the advice obtained under this section.

(7)
If it appears to the Secretary of State that the advice contains material whose

disclosure—

(a)
would be damaging to the public interest, or

(b)
might prejudice the prosecution of any person,


the duty of Secretary of State under subsection (6) is to lay before Parliament a

copy of a version of the advice, provided by or agreed with the independent legal

adviser, that does not contain such material.’.

Extension of detention under section 41 of the Terrorism Act 2000

Mr Andrew Dismore

Dr Evan Harris

John Austin

Mr Virendra Sharma

John McDonnell

Jeremy Corbyn

Total signatories: 9

NC1

To move the following Clause:—

‘(1)
The Terrorism Act 2000, Schedule 8, Part III (extension of detention under

section 41) is amended as follows.

(2)
After sub-paragraph (6) of paragraph 29 (warrants of further detention) there is

inserted—

“(7)
Nothing in this Part is to be read as requiring the judicial authority to act

in a manner inconsistent with the right of the specified person to a fully

judicial procedure in Article 5(4) of the European Convention on Human

Rights.”.

(3)
After sub-paragraph (d) of paragraph 31(notices) there is inserted—

“(e)
a statement of the suspicion which forms the basis for the

person’s original arrest and continued detention, and

(f)
the gist of the material on which the suspicion is based.”.

(4)
Before sub-sub-paragraph (a) of sub-paragraph 32(1) (grounds for extension)

there is inserted—

“(aa)
there are reasonable grounds for believing that the person has

been involved in the commission, preparation or instigation of a

terrorist offence,”.

(5)
Sub-paragraph (1) of paragraph 33 (representation) is deleted and there is inserted

in its place—

“(1)
The person to whom an application relates shall be entitled—

(a)
to appear in person before the judicial authority and make oral

representations about the application,

Consideration of Bill: 10th June 2008
2611

Counter-Terrorism Bill, continued

(b)
to be legally represented by counsel at the hearing,

(c)
to legal aid for such representation,

(d)
to be represented by a special advocate at any closed part of the

hearing of the application, and

(e)
through his representative, to cross examine the investigating

officer.”.

(6)
After sub-paragraph (3)(b) of paragraph 33 there is inserted—


“if the judicial authority is satisfied that there are reasonable grounds for

believing that the exclusion of the person and/or his representative is

necessary in order to avoid any of the harms set out in sub-paragraphs (1)

to (g) of paragraph 34(2) below.”’.

Lower threshold for charging in terrorism cases

Mr Andrew Dismore

Dr Evan Harris

John Austin

Mr Virendra Sharma

John McDonnell

Jeremy Corbyn

Total signatories: 9

NC2

To move the following Clause:—

‘(1)
When deciding whether there is sufficient evidence to charge a person with an

offence having a terrorist connection, a Crown Prosecutor may apply the

“Threshold Test” for charging if the conditions in subsection (3) below are

satisfied.

(2)
The “Threshold Test” for charging is met where there is at least a reasonable

suspicion that the suspect has committed an offence having a terrorist connection.

(3)
The conditions which must be satisfied for the Threshold Test to apply are—

(a)
it would not be appropriate to release the suspect on bail after charge;

(b)
the evidence required to demonstrate a realistic prospect of conviction is

not yet available; and

(c)
it is reasonable to believe that such evidence will become available

within a reasonable time.

(4)
The factors to be considered in deciding whether the Threshold Test of reasonable

suspicion is met include—

(a)
the evidence available at the time;

(b)
the likelihood and nature of further evidence being obtained;

(c)
the reasonableness for believing that evidence will become available;

(d)
the time it will take to gather that evidence and the steps being taken to

do so;

(e)
the impact the expected evidence will have on the case;

(f)
the charges that the evidence will support.

(5)
Where a Crown Prosecutor make a charging decision in accordance with the

Threshold Test, the person charged shall be immediately informed of the fact that

they have been charged on the standard of reasonable suspicion.

Consideration of Bill: 10th June 2008
2612

Counter-Terrorism Bill, continued

(6)
When the person charged on the Threshold Test is brought before the Court it

shall be the duty of the Crown Prosecutor to inform the Court of that fact.

(7)
The Court shall set a timetable for the receipt of the additional evidence and for

the application of the normal test for charging as set out in the Code for Crown

Prosecutors.

(8)
The Chief Inspector of the Crown Prosecution Service shall report annually on

the operation of the Threshold Test in terrorism cases.’.

Bail for terrorism offences

Mr Andrew Dismore

Dr Evan Harris

John Austin

Mr Virendra Sharma

Ann Clwyd

John McDonnell

Total signatories: 10

NC3

To move the following Clause:—

‘(1)
The Terrorism Act 2000, Schedule 8, is amended as follows.

(2)
After paragraph 37 there is inserted—

“Part IV

Bail

38
The judicial authority with power to extend detention under section 41

has power to release the suspect on bail, with conditions.”’.

Compensation for detention

Harry Cohen

Frank Cook

Mr Andrew Love

NC31

To move the following Clause:—

‘(1)
The Secretary of State must, within twelve months of the date on which this Act

is passed, make regulations providing for a compensation scheme (“the scheme”)

governing payments made to suspects who are detained under the provisions of

Schedule [Amendments relating to period of pre-charge detention] and not

charged with an offence.

(2)
The scheme shall specify levels of payments to be made to suspects so detained

and different levels may be set for different periods of detention.

(3)
The Secretary of State may by order vary the levels of compensation set by the

scheme.

Consideration of Bill: 10th June 2008
2613

Counter-Terrorism Bill, continued

(4)
Regulations and orders made under this section are subject to affirmative

resolution procedure.’.

Expiry or renewal of extended maximum detention period: further parliamentary

safeguards

Mr Andrew Dismore

Dr Evan Harris

John Austin

Mr Virendra Sharma

NC33

To move the following Clause:—

‘(1)
The Terrorism Act 2006 is amended as follows.

(2)
After subsection (6) of section 25, there is inserted—

“(6A)
The Secretary of State and the panel appointed under section 36 must lay

annual reports before Parliament on the operation of the extended period

of pre-charge detention.

(6B)
No motion to approve a draft order under subsection (6) may be made by

a Minister of the Crown until one month has elapsed since the publication

of the reports laid under section (6A).”.

(3)
In section 36—

(a)
in subsection (1) for “person” there is inserted “panel of persons”;

(b)
in subsection (2)—

(i)
for “That person” there is inserted “The panel”;

(ii)
for “he” there is inserted “it”; and

(iii)
for “his” there is inserted “its”;

(c)
in subsection (3)—

(i)
for “That person” there is inserted “The panel”; and

(ii)
for “his” there is inserted “its”;

(d)
in subsection (4), for “That person” there is inserted “The panel”;

(e)
in subsection (6)—

(i)
for “a person” there is inserted “the persons”; and

(ii)
for “his” there is inserted “their”.

(4)
In section 36, after subsection (1) there is inserted—

“(1A)
A person may not be appointed under subsection (1) unless—

(a)
the Secretary of State lays a report on the appointment process

before both Houses of Parliament, and

(b)
a Minister of the Crown makes a motion in both Houses to

approve the report laid under this subsection.”.’.

Consideration of Bill: 10th June 2008
2614

Counter-Terrorism Bill, continued

Power to declare reserve power exercisable (No. 2)

Mr Andrew Dismore

NC36

To move the following Clause:—

‘An order made by the Secretary of State under section [Power to declare reserve

power exercisable] shall be treated for the purposes of the Human Rights Act as

subordinate legislation and not primary legislation.’.

Power to declare reserve power exercisable (No. 3)

Mr Andrew Dismore

NC37

To move the following Clause:—

‘The grounds on which an order made by the Secretary of State under section

[Power to declare reserve power exercisable] shall be subject to judicial review

shall include—

(a)
that a grave exceptional terrorist threat has not occurred or is not

occurring;

(b)
that the reserve power is not needed for the purpose of investigating the

threat and bringing to justice those responsible; and

(c)
that the need for the power is not urgent.’.

Amendment to section 25 of the Terrorism Act 2006

Mr Nick Clegg

Dr Vincent Cable

Chris Huhne

Tom Brake

David Howarth

Paul Burstow

NC38

To move the following Clause:—

‘(1)
Section 25 of the Terrorism Act 2006 (c. 11) (expiry or renewal of extended

maximum detention period) is amended as follows.

(2)
After subsection (3), insert—

“(3A)

(a)
The Secretary of State may only make an order under subsection

(3) if she is reasonably satisfied that making the order is

necessary for the effective investigation of terrorist offences.

(b)
In determining what is necessary for the effective investigation

of terrorist offences the Secretary of State must take into account

the availability of post-charge questioning, the practice of the

Crown Prosecution Service in relation to the weight of evidence