Counter-Terrorism Bill

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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.
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.
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