 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Counter-Terrorism Bill |
Counter-Terrorism Bill |
The Committee consisted of the following Members:Chris
Shaw, Mick Hillyard, Committee
Clerks
† attended the
Committee
Public Bill CommitteeThursday 8 May 2008(Afternoon)[John Bercow in the Chair]Counter-Terrorism BillClause 26Post-charge
questioning: meaning of “terrorism
offence”
2
pm
The
Minister for Security, Counter-Terrorism, Crime and Policing
(Mr. Tony McNulty):
I beg to move amendment No.
135, page 18, line 38, leave out from
‘things)’ to end of line
39.
Mr.
McNulty:
Welcome back to our deliberations, Mr.
Bercow. The start of my little speech states that we have grouped these
amendments together because they relate to the treatment of a single
offence. That is not meant to be a discourtesy to the House: we are
happy that the House has grouped these amendments together, with advice
or otherwise. Nevertheless, they relate to the treatment of a single
offence under section 113 of the Anti-Terrorism, Crime and Security Act
2001, as it appears in the various lists of offences in the Bill. That
section makes it an offence to use noxious substances or things to
cause serious violence or endanger human life or public safety, to
influence or intimidate the Government or the public. That is an
offence where the conduct takes place in the United Kingdom but also,
by virtue of section 113A and subject to some conditions,
overseas.
Amendment
No. 135 makes post-charge questioning for the section 113 offence
possible, irrespective of whether the conduct relating to the offence
took place in the UK or overseas. Under the previous version of the
clause—that originally tabled by the Government—a person
charged with an offence under section 113 could be questioned about
that offence post-charge if the criminal conduct took place overseas,
but not if the offence was committed in the UK. That clearly is not a
condition that we would want to prevail. Under the amendment,
post-charge questioning will be available when the conduct constituting
this offence took place in the UK as well as abroad.
Similarly, in
relation to the list of offences triggering the notification
requirements in clause 39, under amendment No. 142 the notification
requirements will attach following a conviction and appropriate
sentence for the section 113 offence, whether it was committed overseas
or in the UK. Finally, Government amendment No. 137 removes the
reference to section 113 of the 2001 Act from schedule 2 to the Bill.
That schedule lists the offences
for which the court in England and Wales or Scotland must consider
whether there is a terrorist connection triggering aggravated
sentencing and the notification requirements, which is germane to the
next set of amendments.
The section
113 offence is being removed from this clause because, by virtue of
amendment No. 142, the notification requirements will automatically
apply following a conviction for the offence, so no determination of
the terrorist connection is needed. Furthermore, as the section 113
offence is a terrorism offence, it will already be subject to a
sentence which recognises that fact, and thus will not need to be
considered for an aggravated sentence. In effect, amendment No. 137 is
a consequence of the other Government amendments. That is eminently
straightforward, and as clear as anything, and I commend the amendments
to the Committee.
Mr.
Dominic Grieve (Beaconsfield) (Con): The amendments do not
present huge difficulties. While we are about it, perhaps the Minister
would like to consider, and if necessary write to tell me, what a
noxious thing as opposed to a noxious substance is. It would be useful.
The very first Bill I ever considered in Committee was the Public
Processions (Northern Ireland) Bill and it contained a prohibition on
playing a musical or other instrument. We had a very interesting
discussion about what another instrument might be, without engaging in
prurient speculation. The wording was deleted from the Bill—we
were left with musical instruments and not other
instruments—which was the first time that I ever succeeded in
getting anything deleted. I should therefore be grateful if the
Minister could tell me what a noxious thing is and how it differs from
a noxious
substance.
Mr.
McNulty:
I can assure the hon. and learned Gentleman that
if it transpires that it is as irrelevant as the item in that Northern
Ireland Bill I shall happily—I am in the mood, as the Committee
has already seen this morning—accept an amendment from the
Opposition deleting the phrase “noxious thing”. The full
extent of what it adds to our knowledge and to the 2001 Act may well be
utterly redundant, but I suspect that that is not the case. I cannot
off the top of my head think of a noxious thing that is other than a
noxious substance. But these little tests are sent to try us. If I do
get inspiration—if it is afforded during our
deliberations—I will, of course, let the Committee know.
Otherwise, I shall welcome with open arms the hon. and learned
Gentleman’s amendment. For now, however, let us leave
“noxious thing” in the 2001 Act, and the references to
“noxious thing” in the Bill. I shall scurry away, do my
homework and inform the Committee in due course whether there are
noxious things that are other than noxious
substances.
Mr.
David Heath (Somerton and Frome) (LD): I have a
suggestion: a pathogen would not be a noxious
substance.
Mr.
McNulty:
Funnily enough, having recently dealt with a
couple of statutory instruments on pathogens, I am pretty sure that a
pathogen is not a substance, in law at least. I am therefore with the
hon. Member for Somerton and Frome, but if any Committee member can
correct me, I shall duly give way to them.
As I said earlier—the
hon. Member for Newark was absent but he would have been delighted had
he been here—given that we do not want undue specificity, the
assumption is that there are things that are noxious that are not
substances. I fear that I shall not go down the Lambeg drum route that
I am provoked into, but if all these things are covered by
“substance”, then I shall do the Committee’s
bidding. However, I think that the pathogenic hon. Member for Somerton
and Frome is entirely right, and that there are things that are not
substances but are
noxious.
Mr.
McNulty:
I am not sure whether a canard is substantial or
is simply a thing, but I did mention canard earlier, when I said that
the hon. Gentleman and I have long experience of considering Bills. I
am sure that he has his bingo card, and has duly ticked off
“canard”. Had he been here this morning—I am sure
that he had his reasons for not being—he would have ticked off
“undue specificity”. I have another little list, and I am
sure that towards the end of our deliberations he will be able to shout
“Bingo!” and wake the rest of the Committee up.
On a serious note, if
“noxious thing” adds to the coverage of that part of the
2001 Act, as I think it does, we should let it lie. However, I shall
consider the import of what the hon. and learned Member for
Beaconsfield suggests, and if the term does not add anything, I shall
come scurrying back to the Committee or the House with a suitable
amendment to expunge the irrelevancy from our legislation.
Amendment agreed
to.
(e) the common law offences
of murder, manslaughter, culpable homicide, kidnapping or abduction, in
relation to an offence listed in subsection (1)
above.’.
The
amendment relates to the specificity of clause 26, which lists an awful
lot of offences that have the meaning of a terrorism offence for the
purposes of certain sections of the Bill. However, the list does not
accord with the list of offences in schedule 2 for which a terrorist
connection is to be considered. I understand that the lists are for
different purposes, but this is a probing amendment to discover from
the Minister why the common law offences listed in my amendment are
omitted from the clause. Those offences can clearly be related to
terrorist offences, and we would expect post-charge questioning to be
pursued for such offences if they were relevant to the facts of a case.
I am sure that there is a good reason for that, but I should like to
know what it
is.
Mr.
McNulty:
The hon. Member for Somerton and Frome is
entirely right that the clause does not include the definitive list
from the previous two Acts, but that is not for the reason suggested.
Most of the common law offences in his amendment are already covered,
because the court will dictate that they are terrorism-related, and
that is enough for them not to be on the list. Any
common law offence that the court duly decides is terrorism-related will
be included, so we do not need the list that he proposes.
The hon.
Gentleman is astute, and will know that there are some minor offences
in those previous Acts that we do not regard as appropriate for
post-charge questioning, such as refusal to leave a cordoned area on
the instruction of a police officer. The amendment is unnecessary,
because the Bill already allows for questions about other offences in
England, Wales and Scotland when a court confirms that they are
connected to terrorism.
Mr.
Heath:
I entirely understand that point, but my difficulty
is that the court will not be able to provide such confirmation until
the person is put before it. Without judicial supervision of
post-charge questioning, the person will not be before a court when the
determination is made about whether post-charge questioning is
legal.
Mr.
McNulty:
Once charged, the individual is effectively under
the protection of the court, so those charges, duly laid, will reflect
the offence, and at that stage, if it is murder and connected with
terrorism, there is provision for it to be made clear on the charge
sheet. In England and Wales, if a judge made an order under section 29
of the Criminal Procedure and Investigations Act 1996 for a preparatory
hearing to be held on the basis that the offence was connected to
terrorism, post-charge questioning would be possible. Those hearings
automatically take place when an offence carries a maximum sentence of
more than 10 years, which is certainly true of murder. I am assured
that under the 1996 Act and provisions in the other Acts, common law
offences, when linked to terrorism, can and should be duly considered
under clause 26 of the Bill without there being a broad and extensive
list of any potential common law offence that might or might not be
attached to, or have, a terrorism dimension.
We are right to get rid of the
minor offences in the 2006 Acts, simply because to put them in the
context of post-charge questioning would not elicit much further
information. I take the hon. Gentleman’s point about judicial
scrutiny, but we have let it lie and will return to it at a subsequent
date. I hope that that satisfies him and that he can withdraw his
amendment.
Mr.
Heath:
Up to a point. I am grateful to the Minister for
his response. As he said, we have agreed to let lie for the moment the
question of judicial supervision, which made it all the more surprising
that he appeared to suggest that judicial supervision was the answer to
my conundrum about how we deal with post-charge questioning when the
court has not yet considered whether the offence has a terrorist
connection.
Mr.
McNulty:
I was referring to no such thing. That, in the
words of the hon. Member for Newark, is an utter canard. I did not give
way on judicial oversight at all in terms of post-charge questioning.
We will come back to the matter, as I have said, and I look forward to
it.
Mr.
Heath:
I thought that I used exactly the expression that
the Minister used: that we had agreed to let the matter lie for the
moment. That is why it came as some surprise when he gave it as his
explanation—it would appear to me—as to how to define a
common
law offence with a terrorist connection: that it would be determined by
the court when the person involved had not been put before the court at
that stage, unless we were in the circumstances of judicial supervision
of post-charge questioning. I hope that we will return to that matter
and that he will accept that it has a place in the debate.
The list of
common law offences is not long, and it would not be the end of the
world if that short list, which is the same as the list that uses up
only five lines in schedule 2, were in the clause. I accept what the
Minister says about the need to limit the provision in order to avoid
the minor offences that might otherwise be caught in the schedule. That
is common ground. There is no difference in what we expect to happen;
my concern is simply that not considering the matter at this stage
leaves a loophole—yet again—that we might need to fill. I
ask him to consider that last point again. On that basis, I beg to ask
leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause 26, as amended,
ordered to stand part of the Bill.
Mr.
Douglas Hogg (Sleaford and North Hykeham) (Con): On a
point of order, Mr. Bercow, I noticed that you put the
clause stand part question quite rapidly. It is just possible that I
shall want to get to my feet when you put the stand part question on
clause 27. Could you please put the question more slowly, so that I can
get to my feet before the issue is
closed?
The
Chairman:
I had not taken account of the right
hon. and learned Gentleman’s sensitivities and
sensibilities, but I shall do my best. I am certainly proceeding in
accordance with custom and precedent.
Mr.
Hogg:
Further to that point of order, Mr.
Bercow, it was really just a polite way of saying that I hope that you
might allow a short stand part debate on clause
27.
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