Clause
27
Jurisdiction
to try offences committed in the
UK
2.15
pm
Mr.
Grieve:
I beg to move amendment No. 166, page 20,
line 17, leave out subsection
(4).
The
Chairman:
With this it will be convenient to discuss the
following: Amendment No. 168, page 20,
line 18, leave out subsection
(5).
Government
amendment No.
136
Amendment No. 167,
page 20, line 19, leave out subsection
(6).
Amendment
No. 126, page 20, line 19, after
‘offence’, insert ‘with terrorism
connections’.
Mr.
Grieve:
These are probing amendments, so my right hon. and
learned Friend might find that they facilitate a more general debate on
the clause. The Committee will recollect that, in the course of our
preliminary deliberations, we received evidence from the Lord Advocate,
who provided a great deal of reassurance. She said that there was
little anxiety among the Scottish Government about the clause, which
was designed to facilitate trials taking place with maximum
flexibility in relation to the United Kingdom. In her judgment, it was
not intended to be used, and would not be used, to try to remove cases
from Scotland or, for that matter, vice
versa.
Nevertheless,
we cannot simply allow clause 27 to pass without taking a closer look.
When I look at the clause, two issues spring to mind, on which I would
like a response from the Government. First, the clause lists a number
of offences under the Terrorism Act 2000 that will be caught by the
provisions, which will enable a trial to take place anywhere in the
United Kingdom. For the most part, they did not cause a great deal of
trouble, although I must confess that I was struck by the reference
to
“section 51 (parking
a vehicle in contravention of an authorisation or
restriction)”.
I accept
that that might have an intimate terrorist connection, but I am not
sure that it is so serious—unless accompanied by other
factors—as to be an area in which I would wish to depart from
the ordinary rules on where a matter is tried. I flag that up with the
Minister, and it would be helpful if he could provide an explanation,
because the Government have been quite careful in selecting the
provisions covered by the
clause.
Secondly, it
is also provided that the Secretary of State may by order amend the
subsections to add to the list anything that he likes. I accept that
that must be done through the affirmative procedure, but, as the
Minister knows, I have a rather old-fashioned dislike of it partly
because individual offences tend not to be put to the House to be added
to a list. The chances are that we will get six or seven, one of which
we might dislike, while having no problem with the remainder. In such
circumstances, we can do nothing except vote against or in favour.
Given that I would have expected the Government to have covered in the
clause all existing terrorism legislation that they felt needed to be
subject to this unusual provision, in reality nothing else should need
to be added, except under subsequent legislation, which could be done
without any problem by virtue of tabling the suitable consequential
amendments.
I find
subsection (6) somewhat surprising, because it purports to have a
retrospective effect, and that might bother me more than any other part
of the clause. I do not want to make too big a fuss about it, and on
one level I can see that provisions already exist for offences to be
moved from Scotland to England for trial under certain set
circumstances, particularly in cases of conspiracy, for example.
Nevertheless, we have two distinct legal systems and it could be argued
properly that individuals are entitled to the protection of the legal
systems under which they live and certainly to certainty under the law.
That is different from the accused suddenly being told that even though
the law did not operate at the time the offence was committed, they
will be tried in a jurisdiction other than that in which the alleged
offence was committed. Although I
derived a great deal of reassurance from the Lord Advocate’s
evidence, which removed much of my anxiety over the clause, it still
seems to me that some issues need to be teased
out.
Mr.
Hogg:
I have only two observations. First, may I say to my
hon. and learned Friend that although I recognise and share his dislike
for the process of amending statutes by order, I very much prefer the
affirmative to the negative procedure? He is entirely right that an
order made under either is unamendable, and that is the great vice of
using the procedure.
My second
observation reinforced the point that my hon. and learned Friend made
with regard to subsection (6). There is actually quite a significant
point of principle here. He has mentioned retrospection, and of course
it is entirely right that persons should not be subject to different
sentences dependent on a law being applied retrospectively. That also
applies to jurisdiction, because it is rather hard to say that a person
can be tried in a jurisdiction that they could not be tried in unless
the law was made retrospective. That will probably not happen in
reality, because those classes of case will disappear with the passage
of time, but there is an issue of principle here, and I have a strong
degree of sympathy with my hon. and learned Friend’s
point
Mr.
McNulty:
I am grateful to the hon. and learned Member for
Beaconsfield for recognising that the Lord Advocate’s evidence
was extremely useful for understanding these clauses. She gave a
formidable and informative performance, which was one of the few saving
graces of using the evidence sessions as a prelude to our
deliberations, as I thought that she was very good. She said not only
that the principal source of the amendment lies in concerns and
anxieties north of the border, but that it was absolutely
clear
“that the real
priority here is the public interest, and terrorism in that context
demands that we act closely together to ensure both the public interest
and fairness for the accused.”——[Official
Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c.
91, Q249.]
Clause 27
gives UK-wide jurisdiction for specific terrorism offences so that they
can be tried in any part of the UK, as the Lord Advocate clearly
stated, irrespective of which jurisdiction they were committed in. Hon.
Members will know that London-Glasgow last summer was the source of
some of the concerns raised about the clause. The clause applies to
offences listed in subsections (2) and (3), which are offences under
the terrorism legislation and the ancillary offences associated with
those, such as conspiracy and incitement. The clause covers more minor
terrorist offences, so that in some cases a person can be tried
together with a linked defendant in another jurisdiction who might be
charged with a more serious offence. When considering the core element
of dual jurisdiction and where to try in the first place, those minor
offences might bring in other defendants from another jurisdiction to
the major offence and the major defendant in the principal
jurisdiction. That is why some of the more ancillary and lesser charges
are included.
It will
be possible to prosecute terrorism cases in any part of the United
Kingdom, irrespective of where they were committed. Rightly, however,
under the principles
of common law, a substantial measure of the criminal activity must have
taken place in the UK for a court to take jurisdiction over an offence.
The common law rule has been established for sensible reasons, and in
the vast majority of cases it results in the court that is best placed
to deal with the offence having jurisdiction. However, when
cross-border situations arise, the rule might result in linked offences
that happen in two different parts of the UK having to be tried in
separate trials in different parts of the UK with an ultimately
detrimental effect on bringing individuals to justice. That would be
inefficient in that it would involve duplication of witnesses and
evidence, a waste of resources and almost certainly less effectiveness
than if the cases could be joined and tried together in the one
jurisdiction. The
provision in the clause will be extremely helpful when, for example, in
a single investigation there are linked defendants, one in Wales and
one in Scotland, both of whom are found to be in possession of
terrorist articles, which is an offence under section 57 of the 2000
Act. Each defendant could be tried only under separate jurisdictions as
the common law rule would prevent a joint trial, no acts of the Welsh
defendant having taken place in Scotland or vice versa. The provision
in clause 27 will allow such cases to be tried by the same
court.
Mr.
Hogg:
I may be expressing an anxiety that is ill founded,
but the right hon. Gentleman knows that in Northern Ireland there are
Diplock courts, or trial by a single judge. Is it possible under the
clause for people who are normally resident in Scotland or England and
Wales, where they would normally be subject to trial by jury, to be
transferred to Northern Ireland and face trial by a single judge for a
terrorist-related
offence?
Mr.
McNulty:
That is an entirely fair point, but not so, as I
understand it—if someone to the left of me falls off their chair
I will have misinformed the right hon. and learned Gentleman. The
provision covers principally England and Wales, and Scotland, but if I
am wrong, I will happily stand
corrected.
There are
already examples of legislation that enables prosecutions to take place
in any part of the UK. The Criminal Procedure (Scotland) Act 1995 and
the Customs and Excise Management Act 1979 include such provisions.
Amendments Nos. 126 and 136 would clarify the scope of clause 27 by
limiting the purpose of UK-wide jurisdiction to dealing with
terrorism.
Government
amendment No. 136 makes it explicit that an offence can be added to the
list only if the Secretary of State believes that it is necessary for
the purpose of dealing with terrorism. The order-making power could not
be used to create UK-wide jurisdiction for offences that are not
related to terrorism. Clearly—this is almost a rerun of our
previous deliberations—there can be and will be ancillary and
precursor activities and offences that seem not to have anything to do
with terrorism, but
do.
Mr.
Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I might be
wrong, but the United Kingdom includes Northern
Ireland.
Mr.
McNulty:
Yes, of course it
does.
Mr.
Llwyd:
In which case, if part of a terrorism offence
occurred in Wales and the bulk of it occurred in Northern Ireland,
surely the right hon. and learned Gentleman’s scenario is
reasonable and could happen under the
Bill.
Mr.
McNulty:
That may well be the case in terms of the
jurisdictional point. My concern and hesitation was on the point about
the juryless element and Diplock, and where we are in dismantling that
paraphernalia as well as the security and terrorism paraphernalia and
legislation in Northern Ireland consequent on the peace process. The
Committee will know that as part of the peace process and embedding
devolutions in Northern Ireland, we are seeking to unpick all of the
emergency legislation that prevailed regarding terrorism and security,
including using the Bill to do so. We are also, as we already have in
at least one regard, taking measures that were relevant only to
Northern Ireland and making them UK-wide provisions because they are
useful for the wider threat that we now face. If I have confused
people, I apologise, but it was on the point about juryless trials that
I was unclear; the broader issue of Northern Ireland’s
jurisdiction being within the United Kingdom I happily accept as a
matter of fact.
Mr.
Hogg:
The right hon. Gentleman will remember that right at
the end of last year, there was the case of Hoey before Mr.
Justice Weir, which concerned the Enniskillen bombing. That makes the
point that the single judge is still operating without a jury in
Northern Ireland. Unless something has happened in the last three or
four months of which I am unaware, there are still judge alone
trials.
Mr.
McNulty:
That is the point that I am not clear on. I am
not sure whether we have already started to disestablish, or whatever
the phrase should be, that particular paraphernalia. It might be that
precisely because the case involved Enniskillen, an horrendous atrocity
of so long ago, it still pertained to the old system, and a new system
has come in. The jurisdictional point is well made, but if the push
from hon. Members is that including Northern Ireland should not include
the juryless element—whether or not a substantial part of the
offence took place in Northern Ireland—I am happy to take that
back, and I think that I would absolutely
agree.
2.30
pm
Mr.
Grieve:
I would be grateful if the Minister would do so
because an amendment needs to be inserted to say that the movement,
this UK-wide jurisdiction, shall not be used for the purposes of
depriving a person of the benefit of trial by jury. That would solve
the problem. Such an amendment need not exclude Northern Ireland
specifically because indeed, some Northern Ireland cases could be
transferred here, for example, but it is a very important
issue.
Mr.
McNulty:
I would agree. Doubtless, if I do not say so
someone else will: given the concerns about the potential retrospective
nature of part 6 and the substantial offences and activities that have
been committed in Northern Ireland, that point becomes all the more
important. It is certainly not the Government’s intention, by
sleight of hand or otherwise, that any case under England and Wales or
Scottish jurisdiction that had a remote Northern Ireland connection
should be thrown over the Irish sea to be dealt with by Diplock courts.
I will get clarification on that and hopefully write to the Committee
before our proceedings end.
Mr.
Heath:
On a different and minor point, which I hope the
Minister will not feel is completely irrelevant, I wonder whether the
Government have had any discussions with the Governments of the Crown
territories within the British Isles regarding reciprocal arrangements
for jurisdiction in the Isle of Man and the Channel Islands. It seems
entirely possible that terrorism could be aimed at UK interests in the
Channel Islands, presenting a difficulty with jurisdiction that is not
entirely covered by the clause dealing with offences committed outside
the UK.
Mr.
McNulty:
The hon. Gentleman is entirely right and his
point is not completely irrelevant. It is a perfectly fair point and
one that I will explore, but I would think that in most instances,
without offending anybody in the Isle of Man or anywhere else, in a
dispute over jurisdiction between a Crown territory and any of the UK
jurisdictions, the dominant UK jurisdiction would prevail for legal,
practical and other reasons. I know that there has been discussion, but
I am not sure whether we have reciprocity to underpin what we are
trying to do here in cross-jurisdictional bases.
The hon. Gentleman’s
point is fair and moot, albeit minor; I would not go so far as to call
it irrelevant, but if a significant element of a terrorist case in
Northern Ireland, Scotland or England and Wales was under Isle of Man
jurisdiction, which is perfectly feasible, I find it difficult to
believe that such a case would not be taken to trial by the senior
jurisdiction, especially if it was a serious case. I say that without
offending anyone in the Crown territories. However that is a fair point
and I will explore it and get back to the Committee.
Amendment No. 126 and
Government amendment No. 136 seek to do the same thing, but on balance,
in limiting it to dealing with terrorism, the Government amendment does
that better. For that reason, and with all due humility, I cannot
accept the amendment tabled by the hon. and learned
Gentleman.
Amendments
Nos. 166 and 168 would remove the ability of the Secretary of State to
amend the list of offences for which there will be UK-wide
jurisdiction. Unless the Committee tells me otherwise, I think that we
have covered that pretty
well.
I will
take away the points that were made entirely fairly
about the retrospective nature of subsection (6). I think that the
right hon. and learned Member for Sleaford and North Hykeham—not
for Sleakeham—is entirely right when he suggests that such cases
will be very rare and that there may be no need for the provision at
all. It is put in there to cover all eventualities, given the serious
nature of these offences. I appreciate the point of principle involved
and the Government’s intention was not to open up
retrospectivity as a more general point. If hon. Members have alighted
upon a more
sinister import, I will come back to them in all due humility. However,
I do not think that there is. I think that incorporating that is a belt
and braces element in trying to create cross-jurisdictional
clarity. I ask the
hon. and learned Member to withdraw the amendment, and I would like
Government amendment No. 136 to prevail over amendment No.
126.
Mr.
Grieve:
I am grateful that the Minister has taken
on board the anxiety that has been expressed that we
should not facilitate trials without juries and for the assurance that
he will look at that. In conclusion, I slightly reserve my position on
subsection (6). I continue to have anxiety about the retrospectivity of
these provisions. It may, as my right hon. and learned Friend the
Member for Sleaford and North Hykeham rightly said, prove to be
entirely academic because it is hoped that such a case will not arise.
However, I think that people are entitled to the benefit of the
jurisdiction in which they commit their offences. If Parliament is
going to remove that, to do so retrospectively is a slightly dubious
procedure. I shall reflect on that and I beg to ask leave to withdraw
the
amendment.
Amendment,
by leave,
withdrawn.
Amendment
made: No. 136, in page 20, line 18, at
end insert—
‘( ) The power
conferred by subsection (4) may be exercised so as to add offences to
subsection (2) or (3) only if it appears to the Secretary of State
necessary to do so for the purpose of dealing with
terrorism.’.—[Mr.
McNulty.]
Mr.
Heath:
I beg to move amendment No. 50, in
page 20, line 20, at end
add—
‘(7) Where this section
applies to an offence committed in Scotland, proceedings may only be
taken in another part of the United Kingdom following consultation
with, and with the consent of, the Lord
Advocate.’.
I
agree with the view expressed earlier in Committee that the evidence of
the Lord Advocate was extremely useful. I think that that was one of
the most useful parts of the evidence taking sessions that we
had.
Mr.
Heath:
I freely admit that his evidence shot a fox as far
as I was concerned. I was clear that this was the big, bad Home Office
doing awful things to the Scottish jurisdiction and it quite clearly
was not.
The
Chairman:
Order. I say very gently to the right hon. and
learned Member for Sleaford and North Hykeham that in seeking to
intervene, one asks the person on his or her feet whether they wish to
give way. It is not usual practice for a Member simply to stand and by
the fact of asserting his or her presence to seek to
intervene.
Mr.
Hogg:
You misunderstand me, Mr. Bercow. I was
seeking to intervene, but only at a time convenient to the hon. Member
for Somerton and Frome. I did not want to interrupt his flow, merely to
indicate that at his convenience I would be grateful if he did give
way.
The
Chairman:
Order. Perhaps I can make the position clear
once and for all. There is a method of intervening and that method
applies to every single Member of the House. With the greatest of
respect, I do not need the right hon. and learned Gentleman to explain
to me that I have somehow misunderstood him. There is a way of going
about these things. I am simply gently saying to him that he should do
it in the way that everybody else
does.
Mr.
Heath:
My flow is eminently interruptible and I am
delighted to give way to the right hon. and learned Member for Sleaford
and North Hykeham.
Mr.
Hogg:
My desire was simply not to interrupt the hon.
Gentleman in mid-flow. That was my very modest reason for getting up as
I did. Would he agree with this proposition? It is certainly the case
that the Lord Advocate’s evidence was extremely valuable. One of
the problems that affects Bills of this kind where we are dealing with
Northern Ireland and Scotland, is that often we do not have the opinion
of the relevant authorities within each part of the United Kingdom. It
would be a jolly good thing if as a general rule we could have advice,
for example, from the law enforcement agencies of Northern Ireland in
respect of that part of the Bill that touches on Northern Ireland when
there are no Unionist or Northern Ireland
representatives.
Mr.
Heath:
I am most grateful to the right hon. and learned
Gentleman for that
intervention.
Mr.
McNulty:
As far as I am aware, because I take the hon.
Gentleman’s point, through the usual channels and in the usual
fashion the Conservative party was asked if one of their Members would
stand down in lieu of a Democratic Unionist party representative. As we
see, that request was not greeted with any
equanimity.
Mr.
Heath:
I do not want to get into discussions between the
usual channels. I simply want to record my gratitude to the Lord
Advocate. I think it was my request initially for her to attend and
give evidence. I thought that she gave evidence extremely well. As I
said, she put to rest my concern that this was being done unilaterally
to the Scottish jurisdiction rather than at its instigation, which was
clearly the case. That was useful.
Taking forward the point made
by the right hon. and learned Gentleman, very often I am concerned when
we are dealing with criminal justice matters in this House affecting
Scotland that we do not have the benefit of colleagues from Scotland to
give their advice. I appreciate that we have one Member from a Scottish
constituency on the Committee, but he is the only one. There was a time
when it was normal to have a Scottish Office Minister present on a Bill
like this to deal with the issues relating to Scotland. I do not
criticise the Government for this because since devolution many of
these matters are dealt with by the Scottish Executive. I understand
that entirely, but it means that we have to take particular care when
we are dealing with the
Scottish or the Northern Irish jurisdictions to make sure that we
understand what the issues are and get them
right. Although my
mind was put at rest as far as the general case that there was
agreement across both sides of the border that what is set out in this
clause was an advantage, my one remaining anxiety is about what might
happen if there were a disagreement. The Lord Advocate was very
generous in her comments about her relationship with the prosecution
authorities in England and Wales and said that she got on extremely
well with the Attorney-General, the Solicitor-General and the Director
of Public Prosecutions and that they had no reason to find themselves
at odds. Nevertheless, it is conceivable that this Lord Advocate, or a
future Lord Advocate might have a difference of opinion with this
Attorney-General or a future Attorney-General as to whether these
powers should be invoked in a specific
case.
I
respect the separate jurisdiction in Scotland, which has managed to
maintain its differential over the long years of the Union of the
Crowns and the Union of Parliaments. Given the specific differences in
the system that exist, which I would defend under any circumstances,
just as I defend our right to have our common law system instead of any
form of merger with any European or continental model or jurisdiction,
we should have respect for the Scottish jurisdiction and be able to say
that this should be done with the consent of the Lord Advocate. In any
case, I do not think that that would not be forthcoming. Simply as a
courtesy—a bow of the head to the Scottish
jurisdiction—it is right that the Lord Advocate should be
consulted and that she should give
agreement.
That view
is strongly held by lawyers north of the border, as reflected in the
advice from the Law Society of Scotland, for instance. I cannot
remember whether I had a letter from the Faculty of Advocates on the
subject, but I suspect that that would be its view as well. It seems a
minor courtesy to write such a requirement into the Bill, and I hope
that the Minister will accept the amendment. It would not in any way
reduce the effectiveness of the Bill. It would simply provide a
safeguard so that if there were a dispute at some stage in the future,
at least there would be a way of resolving it or recognising that there
was a difference, rather than England and Wales simply bullying their
way forward at the expense of the Scottish
jurisdiction.
2.45
pm
Mr.
Dominic Grieve (Beaconsfield) (Con): I am not
unsympathetic to what the hon. Member for Somerton and Frome has done
in amendment No. 50, and if this debate had taken place without the
benefit of the Lord Advocate’s evidence, I would have been
minded to support him if he had put his amendment to a vote. I also
accept that the amendment is relatively
innocuous.
However,
what struck me so forcefully in the Lord Advocate’s evidence to
the Committee was the extent to which she was entirely comfortable with
the conventions that operate currently. As a Conservative, I am a great
believer in conventions, which do not have
to be written down. When I saw the extent of her sense of
comfort—she is, after all, the Lord Advocate advising a
Government who now have a nationalist viewpoint—I began to
conclude that I was worrying about
nothing. If the
working relationship that clearly exists between her office and that of
the DPP and the Attorney-General is as good as it appears to
be—we heard nothing to suggest otherwise—it seems that
this matter is capable of being resolved through those informal
relationships, which are, of course, the foundation of our
constitution.
Therefore,
on balance, although I fully understand why the hon. Gentleman tabled
the amendment, I think that if the Lord Advocate does not want
it—she is the person best placed to decide whether it is
needed—it probably is not needed.
Mr.
Hogg:
May I use this debate to raise a question with the
Minister as to what happens if there is a disagreement between law
enforcement agencies in different parts of the United Kingdom? Let me
postulate as an example a person held in Northern Ireland whom it is
desired should be tried in England—the CPS or the DPP wants to
try them in England—but whom the law enforcement agency
in Northern Ireland does not want to transfer. The same thing could
apply to Scotland or Northern Ireland. Is there any procedure in place
or any laws that deal with that question? How does one resolve such a
disagreement when it arises, if it
arises?
Mr.
McNulty:
I do not think that I can usefully add much to
what the hon. and learned Member for Beaconsfield said. The current
Lord Advocate draws comfort from existing arrangements not because she
gets on famously with our current Attorney-General and
Solicitor-General, although they have a good relationship; the comfort
comes as much from the experience and conventions that the hon. and
learned Gentleman referred to and the fact that, as both chief
prosecutors act in the public interest, sufficient protection is
already provided. I am with the hon. and learned Gentleman: the
convention works not simply because a couple of pals get on together,
but because it has worked historically. She also made it clear that,
notwithstanding terrorism, cross-jurisdictional issues are not
new—they had occurred and been dealt with under common law. She
quoted, I believe, an example of credit card fraud with roots in
Scotland and its link to a drugs ring in Liverpool. We are clear, not
least because of the heightened regard that both legal officers,
whoever they are, would afford to public interest and protection, that
things work very well as they are. On the principle—it is
probably not a Conservative principle—that if it ain’t
broke, don’t fix it, we are in a reasonable position
notwithstanding what clause 27 will add to the
relationship.
Mr.
Hogg:
I rather feared that the Minister was going to
conclude his remarks without responding to my perfectly genuine query.
What happens if there is a disagreement, as between respective law
enforcement agencies? Is there a procedure and are there laws for the
resolution of that disagreement?
Mr.
McNulty:
I do not think that there is a formal legal
resolution procedure other than broad protocols rooted in the sort of
conventions and experiences to which the hon. and learned Member for
Beaconsfield referred. That is not a namby-pamby answer. Rooted in
experience thus far, they will prevail. At its most mechanistic, one
could apportion the seriousness of what happened in what jurisdiction
and weigh accordingly which was the dominant. I do not think that
senior law officers in the UK act in that fashion. The protocols and
the experience thus far tell us that such problems will be overcome. I
accept that it is a perfectly genuine inquiry, but I do not think that
a procedure should be locked in—not least for the same reasons
that I do not want the amendment—some mechanistic, formal and
formulaic statutory requirement, given the flexibility and complexities
of such cases which, we should be clear, will be relatively few and far
between, as the right hon. and learned Gentleman
suggested.
Mr.
Russell Brown (Dumfries and Galloway) (Lab): I live close
to the border of England and Scotland and I can assure the
Minister that, on the information that I have, there is a close working
relationship on both sides, and not only in the border locality. It
goes far wider: I am aware of many drugs-related activities over which
there has been excellent co-operation to ensure that those who are out
there contravening laws in this country are brought to book. The law
enforcement agencies appear to work well together; the judiciary may be
something different.
Mr.
McNulty:
I am grateful to my hon. Friend. When the Lord
Advocate was before us, the hon. Member for Somerton and Frome teased
out of her the fact that clause 27 emanated from the Scottish Law
Officers, and shot his own fox in the process. As the hon. and learned
Member for Beaconsfield said, the Law Officers are entirely comfortable
with the measure, not because of a personal relationship, but because
of the institutional relationship, to which my hon. Friend the Member
for Dumfries and Galloway referred, and the relationship between the
two offices over time. Therefore, the Liberal Democrats’
amendment—I do not say this terribly frequently—is
entirely irrelevant. I would ask the hon. Member for Somerton and
Frome—I would ask his hon. Friend the Member for Carshalton and
Wallington too, but he is not here—to gracefully withdraw so
that we can move on.
Mr.
Heath:
If I understand the Minister, the reasons why we
should not have a provision to require consultation and consent from
the Lord Advocate are that consultation always takes place with the
Lord Advocate and she gives her consent, and that the amendment would
therefore place an onerous duty on both officials to secure such
consultation and consent, irrespective of the fact that that already
happens. There is no prescription in the amendment for a checklist or
questionnaire or anything else; it is simply a statement of what the
Minister has assured me is already the case.
Mr.
Grieve:
I have no wish to defend the Minister, but that is
not quite what he said. It was not that the Lord Advocate always gave
her consent. It was that she never had any difficulty reaching an
agreement with
her counterparts in England. In some cases, it could even work the other
way, or it could be that consent is not given. I was very struck by the
fact that she indicated that it had never been a
problem.
Mr.
Heath:
Which, I think, repeats my position. The fact that
it has never been a problem suggests that either consent is given, in
which case it happens, or consent is not given, in which case it does
not happen. That means that my amendment would make no difference to
the arrangements unless there was a difference of opinion, which none
of us foresee in the near future on the evidence of the Lord
Advocate—certainly with the present incumbents and with the
present protocols in place. We must assume that the good relationships
will last, that the incumbent will stay in place with the new
administration in Scotland, that her successors will take exactly the
same view and will be as co-operative as she clearly is, and that for
the lifetime of this statute, there will not be a dispute. Therefore,
there is no need for any resolution to provide the consent. That is the
argument that I have heard against my eminently reasonable and modest
suggestion. [Interruption.] The Minister tells me that that is
not the
argument.
Mr.
McNulty:
As I made it very clear—I do not wish to
prolong the point—the Lord Advocate took comfort in the
prevailing position, not simply because of her relationship with the
individual who happened to hold the post of Attorney-General in England
and Wales, but because of the protocols that will be in place and
because of the experience and conventions that the hon. and learned
Member for Beaconsfield referred to earlier and how successfully they
had worked to mutual benefit. That is a bit more than saying that she
has either been steam-rollered or that consent has always been
forthcoming, so there is no harm in adding this amendment. This
amendment—I am loth to say that it is vacuous—adds
nothing to the prevailing relationship. The prevailing relationship is
so strong not because of the Baroness Scotland and Elish Angiolini, but
because of the posts that they occupy and the raison
d’être of those posts as chief legal prosecutors looking
after the public interest and public safety. That is where the comfort
comes from; all of that and not just the
relationship.
Mr.
Heath:
We have a personal relationship as well as
protocols and public interest that allow for consultation and consent,
but the provision that requires consultation and consent is
otiose.
Mr.
Grieve:
The other reason why I happen to think that the
amendment is unnecessary is because in reality, if there were a
conflict, I do not think that there is any way in which the Government
at Westminster could require the Scottish Executive and the Scottish
legal authorities to surrender an individual across the border for the
purpose of trial. Its separate legal system, which is enshrined in the
Act of Union and preserved in devolution, would not allow us to do it.
Also, if there were a breakdown in the relationship, which has
apparently been operating very well for a very long time, nobody could
impose their will on the Lord Advocate if she were to say, “I am
terribly sorry, but this person is going to be tried in Edinburgh or
Glasgow.”
Mr.
Heath:
I do not like disagreeing with the hon. and learned
Gentleman, but if a prisoner were held in Glasgow or Edinburgh, that
clearly would be the case. There would be no question of surrendering a
prisoner to stand trial in Preston or Derby. However, if the person was
held in the English and Welsh jurisdiction and part of the case against
that person was that he had committed offences in Scotland, this
provision gives a jurisdiction to the English court to hear the cases
committed in Scotland under Scots law. That is what this provision
says. If, in future, the Lord Advocate felt that it was in the public
interest in Scotland for those cases to be heard under Scots law in
Scotland, there is nothing she could do about it other than to invoke
the protocols that are in place, which would have no statutory
basis.
3
pm
Mr.
Hogg:
It is at least possible, is it not, that the Lord
Advocate might conclude that the interests of justice, that is to say
the protection of the defendant, might require that defendant to be
tried in Scotland, not least because there is a not proven verdict in
Scotland? I can conceive of circumstances in which, trying to safeguard
the interests of the defendant, one would say that the defendant had a
better chance of a favourable outcome by being tried in Scotland than
being tried
elsewhere.
Mr.
Heath:
That is indeed the case. There is the further
complication that it is quite clear that post-charge questioning will
not happen under a Scottish jurisdiction, whereas it will in England
and Wales. That was the clear evidence we were given. I think it is a
good thing that it should happen, but there is nevertheless that
difference between the systems. There might be a conclusion in the
interests of justice on that basis.
I do not wish to prolong this
any further. I think we have explored the issue, but I find the
position adopted by the Minister—and, it would seem, though I
regret it, by the hon. and learned Member for Beaconsfield—to be
a flawed position. I think that this is a minor safeguard for
circumstances that we cannot foresee, but which could cause
considerable difficulty between the two jurisdictions at some stage in
the future, unless it is resolved. I may come back to it on Report, but
for the moment I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Question proposed, That
the clause, as amended, stand part of the
Bill.
Mr.
Hogg:
You have been good enough to allow a fairly broad
debate on the two groups of amendments, Mr. Bercow, so I can
be much more brief than I had planned. The issues here are of some
interest and, indeed, of some importance. I can summarise them very
briefly because they have been much canvassed in the recent
debate.
It would be
helpful if the Minister could give a somewhat fuller statement of the
circumstances in which it is likely that somebody would be moved from
one jurisdiction to another for the purposes of trial. He has, quite
fairly, identified instances where there are linked offences, and I can
well understand that linked offences would justify an application for
transfer.
There are
other situations that I would like to explore with him. For example, is
it intended to use the transfer provisions for the convenience of
witnesses where all or most of the witnesses are in one part of the
United Kingdom? Is that a consideration that comes into play? There is
also, and differently, the possibility of prejudice. Let us, for
example, remember the Enniskillen bombing. I could conceive that
defendants might wish to be tried in England or Wales, or indeed
Scotland, rather than in Northern Ireland, after an offence of that
kind. Is it intended that these provisions shall be used in order to
make a transfer where it could be deemed that it would be difficult for
a defendant to get a fair trial?
The Minister
has, as I understand it, changed his position on the question of
Diplock courts. I understand him to say that he accepts that if there
is a possibility of a person being tried without a jury as a result of
the use of these provisions, steps will be taken, either by statutory
language or otherwise, to ensure that nobody is deprived of a jury
trial in a terrorist-related matter. I welcome that, and I hope that
the Minister will make that position quite
plain.
My
next point flows from what the hon. Member for Somerton and Frome was
saying about the value of the Lord Advocate’s evidence. He is of
course entirely right. There may be very good reasons why it is not
possible on a Committee of this size to have a fuller representation
from the other parts of the United Kingdom. I understand that. It is a
big Committee, but it may not be big enough for that purpose. Might I,
however, suggest to the Minister, who has greater influence on these
matters than do I, that, as a matter of general principle, where one is
legislating in a way that affects the separate parts of the United
Kingdom, and where, as is inevitably the case, all of us—on this
Committee or on a similar Committee—have but limited experience,
we invite the law enforcement agencies, for example, to give their
opinion, in the first instance in writing, on relevant parts of the
Bill, so that we do at least know the preliminary views. It might be
proper to summon them to give evidence under Special Standing Committee
procedures. But that is perhaps a wider issue. Will the Minister give
that some
consideration?
Finally,
I welcome the Minister’s willingness to move on retrospection.
My hon. and learned Friend the Member for Beaconsfield was right about
subsection (6), but I have spoken about that already. There is an issue
of principle, because people could be subjected to a less favourable
trial than they might necessarily get in their country of usual
residence. I made this point in an intervention on the hon. Member for
Somerton and Frome. I have in mind the not-proven verdict, which of
course is a more favourable position in Scotland than elsewhere in the
United Kingdom. A Scottish defendant might well think it unfair to be
transferred, by reason of retrospective legislation, to another country
within the United Kingdom, because they would be deprived of the
possibility of securing a not-proven verdict. If that was done
retrospectively, there would be an important issue of principle. If he
could give thought to that as well, I am sure that the Committee would
be
grateful.
Mr.
McNulty:
All of those are perfectly reasonable points. I
think that I have said very clearly that it is not the intention of
clause 27 to get terrorist suspects to Diplock courts in Northern
Ireland. If the provisions
need tidying up and strengthening to reflect that, notwithstanding what
I said about not knowing fully whether we have started to dismantle the
Diplock court arrangements in Northern Ireland, I shall come back to
the Committee. It is a perfectly fair
point.
I
think that people are being unduly, but necessarily suspicious about
the import and direction of subsection (6) on retrospectivity. I
listened to the points, and shall try to provide a further explanation
to allay the Committee’s genuine fears. It is not about a
jurisdictional lotto—if I may use that phrase—or
prosecutors touting around different jurisdictions trying to get the
best case from their perspective, rather than that of the defendants.
It is about terrorist offences and plots occurring in two
jurisdictions. Clause 27 will be used only where a plot involves
suspects in different jurisdictions.
A point was made about
convenience for witnesses, but I do not think that that would prevail,
save for the point that if the dominant elements of a plot require so
many witnesses from a particular jurisdiction, it would probably imply
that that is where the trial should take place in the first instance.
However, there is a notion that a trial could take place in Glasgow,
rather than London, simply because most of the witnesses are from
Glasgow, even though at the time they were on a coach trip down to
London, where the principal or core events took place, which would mean
that the jurisdiction would rightly be London. Convenience in that
sense is not the import or thrust of the
clause.
A
point was made about the fairness of being tried in one jurisdiction
rather than another—the example of Enniskillen was given. Again,
that was a perfectly fair point, but it has nothing to do with clause
27. The important points were those about jurisdiction raised by the
Lord Advocate in her evidence. I can provide a very clear and sharp
example, although I shall not go into too much detail, because I am not
sure whether it is still sub judice—it might still be rattling
along somewhere down the line. The example is London-Glasgow—to
use the common parlance—by which I mean the events at Glasgow
airport. The right hon. and learned Gentleman will know that they
started in Haymarket with the two Mercedes-Benz cars filled with
assorted paraphernalia, which happily did not go off. That is a clear
case involving jurisdictional issues—happily, they were
resolved. To be fair, that specific case, unusual though it was,
prompted the Scottish and UK legal offices to look at clause 27 as a
framework for dealing with such matters in the future. I
repeat—I say this and something will happen in the next few
weeks, although clearly I hope not—that it is very uncommon for
something to be so starkly in two jurisdictions as that particular case
was. That case prompted the activity. I think that I have clarified the
example that was the precursor to clause 27 in the first place. I
understand the points raised, although hopefully they are rather arcane
and, although perfectly valid, such concerns will not stand up to
further investigation in terms of retrospectivity. However, I will
certainly explore the point about juryless trials. Clause 27 is not
supposed to result in anyone faced with terrorist offences being put in
front of a juryless court.
Question put and agreed
to.
Clause 27,
as amended, ordered to stand part of the
Bill.
Clause 28
ordered to stand part of the Bill.
| 
