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Finally, we support the cross-party consensus on this matter. Such a consensus does not always arise, but there is a strict order of preference among the amendments on which we might vote today. If the hon. Member for Hendon is inclined to press his proposals to a vote, we would be keen to support them, but we would be equally happy to support the Conservative amendments. If we are left with only the Government amendments, we accept that they make a contribution and we would be comfortable about supporting them as well.
Mr. Hogg: I want to make three points. First, my amendment No. 46 proposes that post-charge questioning should not come into effect until the codes of practice have been approved under the affirmative procedure of this House. However, the Government’s new clause seems to meet that objective, and I welcome it.
My second point has to do with judicial supervision, which I believe should be conducted by the Crown court rather than by the justices. To that extent, I very much support new clause 4 and the amendments tabled by my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve). It is preferable that a Crown court judge—who in any event is likely to be seized with the case—should have the supervisory role, rather than the justices. In part, that reflects my unease about the justices’ courts, which are not always as fully aware of the relevant facts as perhaps they should be.
My final point relates to the law of unintended consequences. It is obviously right that we should lay down the statutory framework within which the judicial approval for post-charge questioning should be sought, but I am slightly troubled that we may have produced proposals that would prevent post-charge questioning when that is what alleged offenders want. For example, they may want to have their previous statements clarified, or they may have found material that supports what was said in previous interviews. In such circumstances, they may want to be interviewed again, post-charge.
I am not absolutely clear in my own mind as to whether what we are discussing now would preclude that happening, but it might, and the Government should reflect on that possibility. I recognise that we cannot resolve the problem today but, if my anxiety turns out to be well placed, the other place is the proper place to address it.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I agree with what the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) has said. The point is moot, and I certainly cannot offer an answer to the important question that he has posed. However, it is on the record now and I hope that someone will answer it later.
Chris Bryant: I thank the hon. Gentleman for allowing me to intervene on the point that he has just made in response to the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). New clause 4 would mean that post-charge questioning could relate only to new evidence: if it were accepted, it would preclude the possibility that people could be interviewed again.
Mr. Llwyd:
Not necessarily: the right hon. and learned Member for Sleaford and North Hykeham said that some new evidence might be thrown up that caused the defendant or the accused to reconsider what he or she
had said earlier. That does not preclude the possibility that people could be re-interviewed. In any event, it seems that none of us in the Chamber is able to offer an answer on that point, but I accept what the hon. Gentleman says: there is an important debate to be had.
On new clauses 18 and 19, the Minister said in Committee that he would consider the issues, and to be fair to him, he has certainly done that. Interestingly, he also said:
“I do not entirely dismiss judicial oversight and all the detail; I simply ask the Committee to lay those matters to one side for now. Let us go away, have a further look”. ——[Official Report, Counter-Terrorism Public Bill Committee, 8 May 2008; c. 338.]
To be fair, that is what he did with many points to do with the Bill, but I ask him now to look at new clause 4, which has the authority of the Joint Committee on Human Rights behind it. The new clause is very useful, and the Government might well consider accepting it in due course. I do not disagree with the Conservative amendment either; I am really hedging my bets on this one. With the bets that I have made, I hope to get a horse in the top four.
Of the myriad issues that we started off with in Committee, the only two left are the issue of judicial oversight and the question of the length of post-charge questioning. We are so near agreement that it would be very good if we were able to reach it. The Minister said in Committee that we could leave some matters to the trial judge, because he would decide at the beginning of a trial whether the questioning was oppressive, and so on. That is one way of doing things, but it would be preferable to provide for limited judicial oversight. The judge concerned would not have to be from the High Court; a circuit judge would be fine, I am sure. People apply for public interest immunity certificates to gain the right not to have certain evidence disclosed in an ordinary criminal trial. Those certificates are two a penny. They are granted all the time, and they do not take very much time from the judge’s list. It typically takes perhaps half an hour before the judge resumes his list. That would be an important, valuable safeguard. To be fair to the Minister, he has come a long way on the issue.
Mr. Heath: I share the hon. Gentleman’s general views, but although new clause 4 raises all the right issues, it is not drafted terribly well. We would like the Minister to agree to the principles of new clause 4 and to come back with an amendment of his own in the other place, or to invite those in the other place to come up with such an amendment for him.
Mr. Llwyd: I will not repeat that verbatim, but the Minister heard what was said, and I am sure that he will make a note of it, mentally or manually. Such an amendment would be fitting, a useful addition to the part of the Bill that we are discussing, and an important safeguard. As someone with personal experience of criminal matters— [Interruption.] On the professional side, I hasten to add. I thank the Minister for reminding me of that. That was almost a confession on the Floor of the House. I honestly do not think that limited judicial oversight will add a time burden, or any other burden.
The issue of post-charge questioning is not as time-crucial as issues relating to other parts of the Bill. I hope that the Minister can consider including the purport of new clause 4, if not its full wording, in the Bill in due course. I finish by saying, in an emollient fashion, that the Government have come a long way on the part of the Bill that we are discussing. There are just a few further feet to travel.
Mr. Gummer: None of us would like to be churlish about how far the Minister has moved on the issue. I agree with the previous speaker that the Minister has done particularly well in reacting to many issues that were raised in Committee proceedings, which I have read but did not attend. I emphasise that even though the significant change that we are discussing has all-party support, it is important that it be implemented with due consideration for its seriousness. The Government have come under a good deal of pressure for seemingly intending to take draconian measures when they are not necessary. The change is a valuable example of taking a sensible measure in a non-draconian way, which gets support of the kind that we need in order to ensure that the special arrangements that we make for our counter-terrorism activities are accepted as suitable within a democratic society. Most of us ought to be concerned to avoid alienating people by going against our own philosophy.
5.30 pm
The concept of going to a judge in the Crown court to get his agreement for post-charge questioning is not just a technicality. It would ensure that everyone realised that that was a step to be taken for a reason, not a step to be taken as part of the normal activity. That is all we are asking, and it has an importance outside as well as to the people who are charged, for it says once again that we are fiercely supportive of a judicial system that is designed to enhance as well as to protect our reputation as a free society. That is why the provision must be introduced. That is why I posed the question earlier, and why I would still like the Minister to tell us how often he envisages the procedure being invoked, as it emphasises the way in which we regard the matter.
Mr. Hogg: Reading the text of the new clauses and the proposed amendments, it is difficult to see why they should be confined to terrorist offences. Looking at the generality of the language, surely it would seem that they could be applied to all serious offences, under a fairly wide definition.
Mr. Gummer: The more we are able to consider these matters in the generality of the way the criminal justice system works, and the more we are able to see that changes can be made which do not damage the right of the individual in face of the full majesty of the law, the better. Special anti-terrorism arrangements inherently cause most of us concern. I agree with my right hon. and learned Friend, and the Minister might like to consider that.
The key thing for today is to ensure judicial oversight, not just because we think it is a good thing, not just because we think it will stop such measures becoming
the generality, not just because we do not want people to be lax in what they do before they charge, but because we need to give constant succour to those outside who want to see that our changes in respect of the terrorist threat are firmly grounded in our attitude towards the freedom of the individual and the right of people to be treated as innocent until they are found guilty.
Mr. McNulty: The debate has been useful. All three models have virtue. We are talking partly about philosophy and partly about the mechanics of implementation. I agree with the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) and others. I have always tried to approach these matters from what is normal in the generality of the criminal justice system—that relates to the point about introducing post-charge questioning more broadly—and replicating that normality as far as we can in the exceptional circumstances of terrorism law. Those are both reasonable positions to start from. Apart from some technical flaws in the amendments proposed, I have little to criticise in their broad philosophy, as I indicated at the start.
It is right and proper, however, that I offer Government amendment No. 57. I am grateful for the comments on new clauses 18 and 19; I pocketed those and moved on. It is not for me to invite the other place to do anything other than agree the Government’s position. I accept that although virtuous, extremely well thought through and well informed, ours is not the only model that would achieve the efficient use of post-charge questioning. It is not because I am weary at having moved so often on so many fronts in terms of our deliberations, but on this matter I have moved as far as I choose to for now, notwithstanding the virtues of some other proposals. For example, there is the small point that I do not want a defendant to be in a position to veto post-charge questioning because their lawyer is not present. That is simply a matter of wording. I could be even more picky and say that having travelled so far in terms of new clauses 18 and 19, I would rather that the video had sound, which is not offered in new clause 4, notwithstanding what I said earlier about the disapplication for Scotland.
I am not being pernickety and ungrateful for all the advice to move a lot further than I have done already, but the model that I offer through amendment No. 57, together with new clauses 18 and 19, together with the draft amendments to the PACE code, hangs together far more coherently than the mix and match that will occur if new clauses 18 and 19 are accepted, amendment No. 57 rejected and we go for new clause 4 or the amendments tabled by the hon. and learned Member for Beaconsfield (Mr. Grieve).
Mr. Hogg: The Minister may not want to deal with this now, but before he sits down will he deal with the matter of the defendant seeking the questioning? It would be helpful to have assurances on that point.
Mr. McNulty:
Just let me finish this point. I am not being unjustly or over-critical about new clause 4 or the amendments tabled by the hon. and learned Gentleman, but if they were passed in place of what I have offered, they might or might not sit with the changes made to the PACE code, and they might or might not sit with new clauses 18 and 19. I would ask the House to take
my miserable offerings, albeit with some movement forward, because they are cohesive with the other two; then there might be a chance later to tidy up all the movement that I have made.
Mr. Grieve: The Minister is very tempting, but I am minded to press new clause 4, partly because I do not wish on amendment No. 16 to find myself having to vote against Government amendment No. 57 and all the other Government amendments that will be taken at half-past 6, because that seems quite ridiculous, but also because if new clause 4 were to be passed the Government would not have too much difficulty tidying the matter up in another place.
Mr. McNulty: I have told the hon. and learned Gentleman that I am rather weary as a result of all the movement that I have already made in that regard.
Chris Bryant: My right hon. Friend sounds very much like a man who is about to move a bit further. Surely if new clause 4 were to be carried as well as new clauses 18 and 19, they would be contradictory. The substantial point is whether a magistrate or a judge should decide. What practical differences would there be in the process?
Mr. McNulty: This opens up other areas. As I said earlier, not just for the process but for the Crown court judge concerned, it could be over-burdensome and too time- consuming for something that should be relatively straightforward. We quite deliberately say—this was another element on my road of discovery—“justice of the peace” rather than “magistrate”, because apparently a justice of the peace is a magistrate available 24 hours a day rather than otherwise.
My hon. Friend has made a fair point in the sense that, for the sake of cohesion, the draft changes to the PACE code, new clauses 18 and 19 and amendment No. 57 hang together. Those measures have been offered as one package, and they should be passed by this House in those terms. If we were to go further in the direction of new clause 4 towards a different model of judicial oversight, rather than the magistracy model, it would be a matter for the other place.
Mr. Grieve: I have some good news for the Minister. I will not press new clause 4, because it would prevent our debating control orders before 6.30 pm., but I am certain that the other place will return to the issue. In our view, judicial oversight is necessary. We have some arcane procedures to deal with in this House this afternoon, and the last thing I want is an unnecessary vote that takes up more of the House’s time and prevents our debating other important business.
Mr. McNulty:
On the point raised by the right hon. and learned Member for Sleaford and North Hykeham, as the Bill is drafted a constable is the initiator of the request for post-charge questioning. I think—I will double-check the point—that if the defendant says they want to be questioned further on some reasonable points, it should not be unreasonably dealt with by the constable that the request came from the defendant rather than otherwise. I think that goes some way to addressing the point, but there is clearly a concern
about how the request is recorded, lodged and responded to. The point is fair, and it should be responded to in detail in another place.
My hon. Friend the Member for Hendon (Mr. Dismore) has said that suspects on bail could be re-arrested for post-charge questioning. Actually, that cannot happen, because there is no power to detain in that regard. The provisions apply only to post-charge questioning, which applies only to those already in detention.
This has been a job well done all round, and we have made a degree of progress, although I do not doubt that the matter will be revisited in the other place.
Clause read a Second time, and added to the Bill.
‘(1) This section applies to the code of practice under section [Recording of interviews] (recording of interviews).
(2) The Secretary of State must—
(a) publish a draft of the proposed code, and
(b) consider any representations made about the draft,
and may modify the draft in the light of the representations made.
(3) The Secretary of State must lay a draft of the code before Parliament.
(4) After laying the draft code before Parliament the Secretary of State may bring it into operation by order.
(5) The order is subject to affirmative resolution procedure.
(6) The Secretary of State may revise a code and issue the revised code, and subsections (2) to (5) apply to a revised code as they apply to an original code.
(7) Failure to observe a provision of a code does not of itself render a constable liable to criminal or civil proceedings.
(a) is admissible in evidence in criminal and civil proceedings, and
(b) shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.’— [Mr. McNulty.]
Brought up, read the First and Second time, and added to the Bill.
Mr. Deputy Speaker: Order. Does the hon. Member for Hendon (Mr. Dismore) want to press new clause 4 to a Division?
Mr. Dismore: No. Like the hon. and learned Member for Beaconsfield (Mr. Grieve), I want to get on to the next debate, although I support new clause 4.
‘After sub-paragraph (b) in section 2(1) of the Prevention of Terrorism Act 2005 there is inserted—
“; and (c) unless section 3(1)(b) below applies, the DPP has certified that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence.”’.— [Mr. Dismore.]
Brought up, and read the First time.
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