Clause
47
Periodic
re-notification
Amendments
made: No. 150, in clause 47, page 34, line 16, after
‘after’, insert
‘last’.
No.
151, in
clause 47, page 34, line 21, leave
out from ‘if’ to ‘at’ in line 23 and
insert
‘the period referred to in
subsection (1)
ends’.
No.
152, in
clause 47, page 34, line 28, leave
out from beginning to end of line 29 and
insert—
‘( ) In that case
section 46(4) and (10) (duty to notify of release and to re-notify
other information) apply when the person is
released.’.—[Mr.
McNulty.]
C
lause
47, as amended, ordered to stand part of the
Bill.
Clause
s
48
and 49
ordered to stand part of the
Bill.
Clause
50
Travel
outside the United
Kingdom
Mr.
McNulty:
I beg to move amendment No. 153, in
clause 50, page 35, line 37, leave
out from ‘regulations’ to end of line
41.
The
Chairman:
With this it will be convenient to discuss
Government amendment No.
154.
Mr.
McNulty:
Amendment No. 153 removes part
of subsection (2)(d). It provides the Secretary of State with a
slightly wider power to prescribe other information to be notified.
Further information about the person’s departure from or return
to the UK and the person’s movements while outside the UK, as
currently mentioned in the clause, will be covered, but further
information need not be limited to those matters. That will allow the
Secretary of State to consider specifying information such as the
persons with whom the person stayed while
abroad.
We
think that the slightly wider vires are appropriate. The provision is
in line with the foreign travel notification requirements for
registered sex offenders, which require information such as the date of
departure from the UK, the destination, additional places they intend
to visit, the carrier they intend to use, details of first-night
accommodation, and the date and location of re-entry to the United
Kingdom. Furthermore, the regulations are of course subject to the
affirmative procedure, so Parliament will have an opportunity to debate
fully the matters included in them.
Amendment No. 154 removes
subsection (5) because it is not necessary. Clause 86(2)(a) already
enables regulations made under the Act to make different provision for
different cases or circumstances, and that must include the power to
make different provision for different descriptions or categories of
person. The provisions tidy things up rather than anything else and
make things all the more explicit. I commend the two amendments to the
Committee.
Mr.
Grieve:
I was interested in the
Minister’s comments; I assumed that amendment No. 153 was simply
because those particular paragraphs were entirely otiose—to use
those buzz words that we like. They are already covered by other bits in
the surrounding clauses.
Amendment agreed
to.
Amendment
made: No. 154, in clause 50, page 36, line 3, leave out subsection
(5).—[Mr.
McNulty]
Clause
50, as amended, ordered to stand part of the
Bill.
Clause
51
Period
for which notification requirements
apply
Mr.
Heath:
I beg to move amendment No. 39, in
clause 51, page 36, line 8, leave
out ‘an indefinite period’ and insert ‘five
years’.
The
Chairman:
With this it will be convenient to discuss the
following amendments:
No. 40, in
clause 51, page 36, line 44, at
end insert—
‘(1A)
Notification requirements in relation to offences under subsection (1)
may be renewed on one or more occasions if it is considered necessary
for purposes connected with protecting members of the public from a
risk of terrorism, for the notification requirements to continue in
force.’.
No.
41, in
clause 51, page 36, line 45, leave
out ‘10’ and insert
‘5’.
No.
42, in
clause 51, page 36, line 46, at
end insert—
‘(2A)
Notification requirements in relation to offences under subsection (2)
may be renewed on one occasion if it is considered necessary for
purposes connected with protecting members of the public from a risk of
terrorism, for the notification requirements to continue in
force.’.
No.
43, in
clause 51, page 37, line 3, leave
out subsection (4).
New
clause 7—Discharge of notification
requirements
‘(1) A person
subject to notification requirements may apply to the court that made
the determination for an order discharging the person from
notification.
(2) The court may
only discharge the person from notification requirements if satisfied
that there are exceptional circumstances indicating that the person no
longer presents a danger to national security or to public
safety.
(3) The court may not
discharge the notification requirements before the end of the period of
five years beginning with the date on which the notification
requirement comes into
force.’.
Mr.
Heath:
These proposals return us to a debate on clause 42
that we held in a pre-emptive fashion. I set aside amendment No. 43,
which deals with the point of insanity that we have already covered,
and deal instead with the period for which notification requirements
apply, which is the purport of amendments Nos. 39 to 42. As the Bill is
constructed, there is an indefinite period for serious cases and a
ten-year period for less serious cases—any terrorism offences
are serious. My amendments would effectively put break clauses in those
periods every five years. The initial notification period would be for
five years; in the case of a serious offence, it could be renewed on a
five-yearly basis to the point of being an indefinite notification. In
the case of less serious offences, it would be for five years in the
first instance, which could be renewed to apply for a further five
years, thereby making the ten years that the Government are requesting
through the Bill.
The
most important thing is to allow the courts to consider the
individual’s circumstances, the environment in which the order
is made and to ensure that the notification orders are still
appropriate. They may be inappropriate because the person has changed
their views and conduct entirely and can demonstrate that that is the
case to the satisfaction of the courts. It may be, as the hon. and
learned Member for Beaconsfield said earlier, that people who have
engaged in terrorist activities can sometimes make quite substantial
changes to their lifestyles to the point where they become part of
Administrations in the UK or abroad. Those would be cases in which, I
assume, it would be inappropriate to retain a notification procedure.
The circumstances of the individual and their propensity to be a danger
to the public may
change.
12
noon
It may well be
that the political circumstances change entirely and we happily move
out of this period. I do not see it happening in the very near future,
but I would like to think that at some stage in the future we shall no
longer have the present terrorist threat. There may be other terrorist
threats, but I certainly hope that the present threat—the reason
that the Government and we in Parliament are so engaged in taking
forward these changes to legislation—will have a period. It is
to be hoped that, at some stage in the future, what are effectively
emergency powers will no longer be required.
I hope that that will happen in
the short term; my fear is that it will not, and that we will be
saddled with measures of this kind for some time to come. I do,
however, think it is appropriate for a court to consider all the
matters before it, and decide at a quinquennial review whether the
notification procedure is still required. If necessary, it will renew
it. If not, what I maintain are onerous requirements on the individual
will be lifted at the point at which they cease to have an effect in
terms of protecting the public and simply become a burden on the
individual that is punitive, rather than for a wider
good.
Mr.
Grieve:
As the hon. Gentleman will be
aware from the debate we had on the earlier clause, I am sympathetic to
the points he makes. In addition, we have our own new clause 7 in this
group. Bearing in mind the comments that I made earlier, there is a
possible solution for the Minister in terms of a clause allowing a
person to make an application after five years to be discharged from
the notification requirements, if the court is satisfied that there are
exceptional circumstances indicating that the person no longer presents
a danger to national security or to public safety. If the Minister has
had a chance to look at that, I would commend it as a possible
formula.
There are
different ways of approaching this, but new clause 7 seems to me to put
the burden on the individual concerned to make a case to the court.
That would meet some of the concerns raise by the hon. Gentlemen, but
in a slightly different way. I have a slight preference for new clause
7. As the Minister indicated an interest in looking at this again, it
might be something to which he can return on Report. If he does not, we
may well do so in terms of new clause 7 as a possible formula, which I
do not think will do anything to defeat the perfectly proper objectives
of the notification
procedure.
Mr.
McNulty:
As I have said in previous
debates, I am not unsympathetic to doing something at that end, but I
do not think we should do anything at all to the mandatory end. I do
not think these amendments suffice. New clause 7 is flawed. It talks
about the original court of determination, but under the current
regime, the court will not determine anything. The notification
requirement is automatic with the sentence, so it cannot be referred to
the original court of determination.
However, I
have said—with, I thought, extraordinary generosity—that
I will take these matters away and consider them. I shall do so with a
view to coming back on Report to say that, having looked at the matter
further, on reflection, I do not agree with its broad thrust or,
indeed, that there are ways in which we can at least give people the
option before the end of 10 years of looking at coming off the register
given their circumstances. In that context, I would far rather have the
leisure to consider whether there are ways that we can proceed, rather
than accepting clauses, however well intentioned, that might not have
quite the import or legal outcome that their proponents
desire.
Mr.
Heath:
As I said earlier, we have already discussed this
and heard the Minister’s view, which he has now repeated. I
understand entirely why he wants the procedure to be mandatory at the
outset. I am interested in the escape clause further down the line and
how we remove the notification procedure from someone to whom it is no
longer appropriate for it to apply. He has said that he will consider
that again and we will consider the points that he has made. I feel
sure that we will wish to debate the matter on Report, but I beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
McNulty:
I beg to move amendment No. 155, in
page 37, line 3, leave out from
‘section’ to ‘(finding’ in line 4 and
insert ‘42(1)(b)(iii), (2)(b)(iii) or
(3)(b)(iii)’.
The
Chairman:
With this it will be convenient to discuss
Government amendment No.
156.
Mr.
McNulty:
Amendment No. 155 corrects an error in clause
51(4) because the inference could be made that an individual can be
retried for the same offence when he has been acquitted by reason of
insanity or disability. It may be reasonable to put that in statute,
but I think not and I do not want the inference there. It is simply not
the case. The reordering and references to section 42(1)(b)(iii),
(2)(b)(iii) and (3)(b)(iii) corrects
that.
Amendment No. 156
simply removes “terrorism offences” in clause 51(5)(a)
and replaces it with the broader
term:
“offences to which
this Part
applies”.
That
provides some coherence with the rest of the provisions that we are
discussing under part 4 notification
requirements.
These are
perfectly innocent little amendments. I keep saying that so that hon.
Members become all the
more suspicious of Government amendments and examine them in more
detail. These are innocent, and I commend them to the
Committee.
Amendment
agreed
to.
Amendment
made: No. 156, in
page 37, line 11, leave out
‘terrorism offences’ and insert ‘offences to which
this Part applies’.—[Mr.
McNulty.]
Clause 51, as amended,
ordered to stand part of the
Bill.
Clauses 52
to 55 ordered to stand part of the
Bill.
Schedule
4
Notification
orders
Mr.
Heath:
I beg to move amendment No. 48, in
page 75, line 25, at end insert
‘and
(c) the court exercising
jurisdiction under that law has not, in respect of the corresponding
foreign offence, relied on evidence or information obtained through
torture, duress or other means that would render such evidence or
information inadmissible in a court in the United
Kingdom.’.
The
purpose of this amendment is to enable the Minister to give assurances
that I hope he will be happy to do in respect of the schedule and
conditions for making a notification order concerning an offence that
is tried under law enforced in a country other than the United Kingdom.
I believe that the spirit of our treaty obligations requires us not to
make such an order in respect of an offence that is tried using
evidence that would be inadmissible in this country by reason of it
being obtained under duress or by torture. I certainly think that that
is an obligation in any country with which we have dealings and under
this provision within the Council of Europe or the European Union, but
I would like an assurance that that will be the case in any
jurisdiction. I do not want people who have been tortured, for example,
in Uzbekistan, and found guilty of an offence using the evidence
obtained by torture to find themselves subject to further penalties,
even of this kind, in this country as a
consequence.
Mr.
Hogg:
Perhaps we should keep in mind that some of the
practices of the United States Government are quite unacceptable,
particularly the long periods of detention in Guantanamo Bay and the
practice of water-boarding, which the President of the United States
appears to have sanctioned. We should keep in mind that the Government
of the United States are using methods that have the result of
providing information in circumstances that we would regard as wholly
unacceptable.
Mr.
Heath:
I have that at the forefront of
my thoughts. It is not merely those countries that are openly despotic,
but those countries that would say that they accept the same principles
of law that we understand in this country, who nevertheless feel that
there are exceptional circumstances that allow them to use processes
that in anybody’s book come under the categories of duress or
torture in order to gain evidence. The United States has a very serious
charge against it; indeed I was one of many colleagues—I think
the right hon. and learned Member for Sleaford and North Hykeham may
have been another—who was amicus curiae in the case on
Guantanamo Bay in the United States on precisely this
issue. It does concern me, so I shall listen very carefully to what the
Minister has to say. There are countries to which it is obviously
applicable and there are others to which it is less obviously
applicable, but under either circumstance, courts in this country
should not be making legal orders on the basis of evidence that is
inadmissible in this country because it is obtained from unsavoury
practices that would be illegal within this country. That is the
assurance, in very clear terms, that I want the Minister to give me
this
morning.
Mr.
Grieve:
I am sympathetic to the point raised by the hon.
Member for Somerton and Frome, and indeed my concerns about this go
further. We are setting up a system that requires notification of
conviction for foreign offences and whilst in many cases this may
present no problems in the general acceptance that the individual has
been justly convicted in a foreign country of a terrorist offence that
requires notification, I can readily envisage that perhaps, unlike
sexual offences, there may be instances where individuals challenge the
basis on which they were convicted and whether in fact their actions
constituted a terrorism offence. This may well turn out to be a fertile
field for judicial review
applications.
Can
one be required to notify, or to go through a notification procedure
which, as the Government have acknowledged—because they
cannot make it retrospective—has an element of a penal sanction,
and can that be done in circumstances where a court in this country
cannot be satisfied that the offence was in fact committed? Clearly,
taking the hon. Gentleman’s example, if there is evidence that
the conviction was obtained on the basis of evidence obtained under
torture, for reasons that we have already rehearsed very well in this
country, we know that the courts will not be very sympathetic to that.
I think it could even go wider and I wonder what view the Government
have as to the chances of this being a contentious area, because I
think it may well turn out to be
so.
Mr.
Hogg:
My hon. and learned Friend is obviously right when
he talks about the risk of judicial review. For example, does he not
accept that where a person has been brought, say to the United States,
through the process of extraordinary rendition, that person might well
challenge notification in this country on the grounds that
extraordinary rendition is so gross an infringement of human rights as
to constitute an abuse and that no trial should be allowed to proceed
on the basis of such extraordinary
rendition.
Mr.
Grieve:
My right hon. and learned Friend
makes a good point. If in future individuals are released from
Guantanamo Bay and end up back in this country with a conviction before
a military commission at Guantanamo Bay and somebody says that they
have to register a notification in this country, I should have thought
that would be challenged pretty readily and that a challenge may well
succeed, not necessarily on the basis that the evidence may have been
obtained under torture but on the basis of the lack of proper due
process in the trial.
I can also envisage circumstances where
individuals who have come from foreign countries with very poor human
rights records could be required to provide notification, where the
individuals concerned wished to argue both that they were never
terrorists in the first place and that their conviction is bogus, and
that the trial process was so flawed that it cannot be said that they
have been put through a proper trial process.
This is a matter of hypothetical
speculation at the moment but it is not difficult to see this
happening, particularly, as the Minister knows, when we debated the
last Terrorism Act there was considerable anxiety as to what
constituted the definition of terrorism. For those reasons, I do not
think this will be an area without controversy.
For the present, I would be
interested to hear the Minister’s views and comments. If it were
to be established that the person’s conviction had been obtained
in the circumstances in amendment No. 48, I should have thought that a
challenge to the notification order is likely to be successful. For the
reasons that I have given, I can also think of other circumstances in
which challenge to the notification process might be successful. I
wondered what the Government thought about
it.
12.15
pm
Mr.
Hogg:
I support what has been said by my hon. and learned
Friend the Member for Beaconsfield and by the hon. Member for Somerton
and Frome. It is clear that the notification procedure brings with it
some penal sanctions. It may not strictly be a penalty but it imposes
restrictions and obligations that are analogous to a penal sanction.
However, one has to ask whether, as a matter of policy, one wants to
use it when the underlying criminal conviction was obtained in
circumstances that would not justify conviction within the courts of
England, Wales or Scotland.
I have the
gravest anxieties about some of the processes currently sanctioned by
the American Administration. Extraordinary rendition is wholly and
utterly wrong. Guantanamo Bay is a stain on the reputation of a common
law country. Water-boarding is so disgraceful that I find it difficult
to understand how the United States President can think it is in any
way proper to give it presidential validation. This is a good
opportunity for the British Government to say, “Up with this we
will not put.” I would not mind some specific statement to the
effect that so long as a United States Government use these practices
in respect of any conviction that is procured in any of those
circumstances we will not seek for one moment to obtain a notification
order.
Mr.
McNulty:
I fully understand the thrust of this amendment
and support the principle of it.
With respect, I do not need
lectures from the right hon. and learned Member for Sleaford and North
Hykeham about our objection to Guantanamo, torture or any such matters.
The Government have been there right from the off and we do not need to
say now or at any other stage, “Up with this we will not
put,” as he so quaintly puts it, because we never have put up
with it and have made our position abundantly clear. I regard his
comments about what the President says as ranking with one of the
latter Presidents who described tomato
ketchup as a vegetable, and will treat it with the same disdain. But I
do not need lectures, with the greatest respect, not given some of the
activities of the last Conservative Government in this regard, which we
will go into at another time, as I do not want to provoke anyone in
that matter. There are
practical and serious difficulties with the broad sweep of what the
right hon. and learned Gentleman is saying. The amendment could be
interpreted as saying that anything offered in the context of a
conviction abroad that did not comply with the admissibility criteria
for evidence in this country could not be accepted. I understand that
that is not the way that the hon. Member for Somerton and Frome sought
to draw it, but that could be
inferred.
As the hon.
and learned Member for Beaconsfield suggested, we could effectively
have mini reruns of foreign trials in our common law framework to see
whether we should uphold the conviction. I know that that is not the
intention of the amendment, but it could be a consequence in practice.
However, I accept the broad thrust behind the amendment of not
condoning torture or information coming from
torture.
Mr.
Hogg:
Does the Minister understand that the judicial
review process, to which my hon. and learned Friend the Member for
Beaconsfield referred, would inevitably bring the court to which the
application is made to consider the underlying soundness of the
conviction? The kind of points that have been made by the hon. Member
for Somerton and Frome, my hon. and learned Friend the Member for
Beaconsfield and myself will come into play at that point. The court to
which an application for judicial review is made is bound to consider
the underlying fairness of the conviction on which reliance is
placed.
Mr.
McNulty:
I thank the right hon. and learned Gentleman for
the echo. That is entirely the point that I just made. I am sympathetic
to what the hon. Member for Somerton and Frome is seeking to achieve,
but I do not think that it is in line with the practicalities of his
amendment. The practicalities go beyond the thrust and import of his
arguments to the possibility of our courts under judicial review
assessing the viability of the evidence per se and whether it is
admissible.
I am
absolutely behind the broad principle, notwithstanding the difficulties
that it would cause. The internationalisation dimension of the
notification regime does do that, but I am not convinced that the form
in which he offers it is quite the way to go forward. I ask him to
withdraw the amendment and I will give the matter serious consideration
to see if we can include it in the Bill because I have not one dispute
with the overall thrust of the
amendment.
My last
point is that twice people have suggested that notification is a penal
sanction. It most profoundly is not. I offered up the amendments that
made this a fairer regime because any requirement or obligation under
law should be fair and proportionate. It was not a recognition that
notification is somehow a penal sanction. I say sincerely that it
profoundly is not. I have let two or three people get away with saying
that the Government were seeking a penal sanction with notification.
That is most profoundly not the case.
I ask the hon.
Gentleman to withdraw the amendment and it will be given serious
consideration before Report
stage.
Mr.
Heath:
I am not sure whether to thank
the Minister for that last point, but I thank him for his helpful
comments. I do not entirely accept his interpretation of the amendment
because I do not think that it throws into question the admissibility
of any evidence, which he has quite clearly defined as being obtained
under
duress.
Mr.
McNulty:
Or other
means.
Mr.
Heath:
Or other means that would render
it inadmissible. One can always extend the excerpt that one uses for
elucidation, but I think that the amendment is quite narrowly drawn. I
am grateful to the Minister for his assurance that he will look at this
matter again.
I confess
my ignorance on the matter raised by the hon. and learned Member for
Beaconsfield, the right hon. and learned Member for Sleaford and North
Hykeham and the Minister about whether the notification order would be
subject to judicial review or whether it is an action by the court as
framed in the context of the Bill. I am not clear on that, but perhaps
it could be
elucidated.
Mr.
Grieve:
It would be subject to review for two reasons.
First, it goes with the conviction of the individual in this country
and, secondly, in respect of a foreign offence, as I understand
it,
“the defendant serves
on the applicant, not later than rules of court may provide, a
notice...stating that, on the facts as alleged with respect to the
act concerned, the condition is not in the defendant’s opinion
met”.
Although he is able
to challenge it, he is simply served with an order that he must provide
notification. That is a ministerial action and, in those circumstances,
it must be possible to review
it.
Mr.
Heath:
The hon. Gentleman is probably right in this case,
but I am less convinced about an ab initio notification as a result of
the offence being tried under a British
jurisdiction.
Mr.
Grieve:
In the case of a sanction being imposed following
a conviction in this country, it is more difficult to see what there is
to review. There might be reviews further down the road, on the basis
that it is no longer proportionate to rights contained in the European
convention on human rights, but that is the only thing that I can think
of. I can think of 101 reasons why somebody convicted in a foreign
court might seek to have that position
reviewed.
Mr.
Heath:
I am now better educated and understand the
parameters that are available to the person on whom the notification
order is placed.
If the
interpretation made by the hon. and learned Member for Beaconsfield is
correct—I have no reason to suppose that it is not—it is
almost inevitable that these matters will be challenged if there is the
slightest doubt about the appropriateness of the original
sentence or about the proceedings in which the original sentence was
given under a foreign jurisdiction. That being the case, any
declaratory statement that could be made in the Bill—the
Minister suggested he would consider that—would be helpful, as
we always say, for the avoidance of doubt. I am clear about the
Minister’s intention in this respect and I think that he shares
my view. That being so, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Amendment
made: No. 157, in
page 75, line 33, leave out lines 33 to 35
and insert—
‘(ii) would have
been so imprisoned or detained but for being unlawfully at large or
otherwise unlawfully absent, lawfully absent on a temporary basis or on
bail pending an appeal,
or
(iii) had been released on
licence, or was subject to an equivalent form of supervision, having
served the whole or part of a sentence of imprisonment for the
offence.’.—[Mr.
McNulty.]
Schedule
4
, as amended,
agreed
to.
| 
