House of Commons Public Bill Committee Proceedings

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Report Stage Proceedings: 11th June 2008
576

Counter-Terrorism Bill, continued

(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);”.

(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

John McDonnell

Jeremy Corbyn

Mr Dai Havard

Not called  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.”.

Report Stage Proceedings: 11th June 2008
577

Counter-Terrorism Bill, continued

(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,

(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

John McDonnell

Jeremy Corbyn

Mr Dai Havard

Not called  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

Report Stage Proceedings: 11th June 2008
578

Counter-Terrorism Bill, continued

(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.

(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

Ann Clwyd

John McDonnell

Jeremy Corbyn

Not called  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.”’.

Report Stage Proceedings: 11th June 2008
579

Counter-Terrorism Bill, continued

Compensation for detention

Harry Cohen

Frank Cook

Mr Andrew Love

Not called  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.

(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

Not called  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)—

Report Stage Proceedings: 11th June 2008
580

Counter-Terrorism Bill, continued

(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.”.’.

Power to declare reserve power exercisable (No. 2)

Mr Andrew Dismore

Not called  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

Not called  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.’.

Report Stage Proceedings: 11th June 2008
581

Counter-Terrorism Bill, continued

Amendment to section 25 of the Terrorism Act 2006

Mr Nick Clegg

Dr Vincent Cable

Chris Huhne

Tom Brake

David Howarth

Paul Burstow

Not called  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

required to bring charges and any changes to the relevant law of

evidence or procedure since this Act came into force.”’.

Habeas Corpus (No. 2)

Mr William Cash

Mr David Wilshire

Mr Richard Bacon

Mr Philip Hollobone

Mr Richard Shepherd

Philip Davies

Mark Pritchard

Mr Peter Bone

Mr Nigel Evans

Mr Roger Gale

Mr Brian Binley

Ann Winterton

Sir Nicholas Winterton

Mr Douglas Carswell

Mrs Nadine Dorries

Mr Charles Walker

Mr David Amess

David T.C. Davies

Tony Baldry

Mr Christopher Chope

Mr Edward Leigh

Christopher Fraser

Patrick Mercer

Mr Adam Holloway

Mr Mark Field

Mr Bernard Jenkin

Not called  NC39

To move the following Clause:—

‘(1)
Nothing in this Act shall prevent or restrict a person who is detained under this

Act or a person duly authorised on behalf of that person from making an

application to a Justice of the High Court for habeas corpus.

(2)
It shall be a condition of the detention that the person detained shall be produced

forthwith to a Justice of the High Court or to a senior immigration judge

authorised to sit as a member of the Special Immigration Appeal Commission

who shall enquire as to—

(a)
the circumstances of the detention;

Report Stage Proceedings: 11th June 2008
582

Counter-Terrorism Bill, continued

(b)
the enquiries that are being made;

(c)
the likelihood of the detained person being charged within 42 days of any

offence of terrorism or related serious indictable offence.

(3)
If the Justice of the High Court or senior immigration judge is not satisfied as to

the likelihood of the person detained being charged within 42 days that person

shall be released forthwith from detention subject to any conditions the judge may

impose.’.

Secretary Jacqui Smith

Mr Andrew Dismore

Dr Evan Harris

John Austin

Ann Clwyd

Mr David Winnick

Alan Simpson

Jeremy Corbyn

Mrs Linda Riordan

Ms Diane Abbott

Kelvin Hopkins

Ms Katy Clark

Agreed to  4

Page  16,  line  17,  leave out Clause 22.

Secretary Jacqui Smith

Added on division  NS1

To move the following Schedule:—

‘Amendments relating to period of pre-charge detention

Part 1

Reserve power to extend maximum period of detention

1
After Part 3 of Schedule 8 to the Terrorism Act 2000 (c. 11) (extension of

detention under section 41) insert—

“Part 4

Reserve power to extend detention under section 41

Introductory

38
The power conferred by this Part of this Schedule is exercisable

only when an order under section [Power to declare reserve power

exercisable] of the Counter-Terrorism Act 2008 is in force.

Application to court to authorise further detention

39  (1)
Each of the following—

(a)
in England and Wales, the Director of Public Prosecutions

or a Crown Prosecutor acting with the consent of the

Director,