Clause
70
Terrorist
property: disclosure of information about possible
offences
Question
proposed, That the clause stand part of the
Bill.
9.45
am
Mr.
Grieve:
I would be immensely grateful if the Minister
would explain why the amendment in clause 70 is being sought. It looks
completely innocuous—indeed in many ways it probably
is—but equally I find it difficult to see how it makes any
difference at
all.
Mr.
McNulty:
Clause 70 is innocuous. It clarifies part 3 of
the Terrorism Act 2000, which deals with terrorist property. Section 19
of the 2000 Act makes it an offence for an individual to fail to inform
the police if they believe or suspect during the course of their work
that a person has committed a terrorist finance
offence—the offences in sections 15 to 18 of
the Terrorism Act 2000. Our proposal makes it clear that the offence in
section 19 applies to all people in any form of employment in its
widest sense, including unpaid employment. The duty to inform the
police will therefore apply to contractors, office holders such as
trustees of a charity, individuals on a full work experience programme
or training and people carrying out voluntary work. In so far as this
amendment extends the definition of employment, clause 70(4) ensures
that it will have no retrospective effect. There may be a concern about
the inclusion of those undertaking voluntary work. However, the
Committee will want to note that the Charity Commission considers that
its members are already subject to section 19, and the measure simply
puts that beyond
doubt.
Other
provisions in part 3 of the 2000 Act refer to the terms
“employment” and “employer” and the new
definition applies to all those. For example, section 20 allows for
disclosure of a suspicion of a terrorist finance offence to be made to
a constable or to an
employer regardless of any restriction of the disclosure of information,
such as the duty of confidentiality. “Employer” will now
have the wider meaning given by new section 22A. The provision is
fairly innocuous, and I commend it to the
Committee.
Mr.
Hogg:
My recent reading of the Terrorism Act 2000 made it
plain that the measure is subject to an overriding provision
that the offences were not committed by lawyers where the information
was received in their confidential communication with their clients. It
would be helpful if the Minister were to restate that, because he
failed to mention that in his general statement of
policy.
Mr.
McNulty:
I think that that is certainly the case, and I am
happy to confirm it. I detected the same import in my reading of the
provision.
Mr.
Heath:
I have a small point that I hope the Minister can
help me with. Will this now apply to ministers of religion, whether
employed or not
employed?
Mr.
McNulty:
That is an interesting point. I think that it
does in the sense that they remain employees. The amendment provides
full clarity on that point.
Question put and agreed
to.
Clause 70
ordered to stand part of the Bill.
Clause
71
ordered to stand part of the Bill.
Clause
72
Control
orders: meaning of involvement in terrorism-related
activity
Mr.
Grieve:
I beg to move amendment No. 229, in
clause 72, page 52, line 22, leave
out subsection
(2).
The
Chairman:
With this it will be convenient to
discuss amendment No. 230, in clause 74, page 53,
line 15, leave out subsection
(4).
Mr.
Grieve:
In clauses 72 and 74, there are
amendments to the Prevention of Terrorism Act 2005. It is not always
easy to understand the reasoning behind the amendments themselves, but
I am prepared to accept that the amendments may be necessary.
In the case of clause 72 on the
meaning of involvement in terrorism-related activity, the
words
“to be involved in
terrorism-related
activity”
are substituted
by
“the individual
concerned to be involved in conduct falling within paragraphs (a) to
(c)”.
So,
instead of relying of the definition of the words
“terrorism-related activity”, in future it will rely upon
the individual definitions contained in that part of the 2005 Act. I do
not have a big issue with that, but then one sees the startling
statement in subsection (2) that
“This amendment shall be
deemed always to have had effect.”
This is a retrospective amendment to be
carried back, presumably to the time when the Prevention of Terrorism
Act 2005 was first enacted, which means that a person could not
subsequently argue that because it was being suggested that the offence
that they might have committed came in prior to this Act, they were not
involved in a terrorism-related activity, even though it might have
fallen within paragraphs (a) to
(c).
The Minister will
not be surprised to learn that I do not like that
amendment. It is our task as parliamentarians to draft statute, and
people are entitled to rely upon statute for their protection. When Sir
Thomas More was confronted with the Act of Supremacy and with having to
take the oath at Lambeth palace, he asked for a copy of the statute
from which the oath had been drafted and pointed out to his
interlocutors that he considered that the oath did not follow the terms
of the statute. Much good did it do him, mind you, but it is an early
example of the proper reliance that people in this country have been
entitled to place upon the words that Parliament enacts.
We live in a society where you
are entitled to do what you like unless Parliament prohibits it. This
form of retrospective removal of a possible right that could be invoked
by a defendant does not commend itself to me, and I need a lot of
persuasion from the Minister as to why it should be included. It
applies equally to the question of the application for anonymity for a
controlled person where, again in clause 74, it says these amendments
shall be deemed always to have had effect.
Will the Minister explain the
scope of both the amendments of the Terrorism Act and also explain why,
quite exceptionally it seems, that it is necessary that these
amendments should be deemed always to have had
effect?
Mr.
Hogg:
I rise to support what my hon. and learned Friend
has said. It is very important that this House, and thus this
Committee, should not pass retrospective legislation. As I understand
the intention of clause 72, it is either to define more clearly or to
enlarge the class of activity that might trigger an application for
control orders. Control orders are essentially penal in their
consequences, although they are not treated as such by the
Government.
I agree
with my hon. and learned Friend that people should not be subjected to
restrictions on their liberty as a result of retrospective legislation.
If there is no powerful justification for what is being done, I hope
that we will divide the Committee on this
subject.
Mr.
Llwyd:
I have studied the notes on clauses, which do not
refer to the provision. If it is that important, perhaps the Minister
will explain why we need to make the provision
retrospective.
Mr.
McNulty:
I understand perfectly the concerns, but I hope
that I can allay them, because the measure is not meant to enlarge
anything—it is meant to do the reverse. I understand the
objections to retrospectivity as well. I am grateful to the hon. and
learned Member for Beaconsfield for invoking one of my heroes, although
I am not going to go down the road of the life and times of Thomas
More.
The
amendments seek to delete a similar provision contained in the two
different clauses 72 and 74. It may help if I talk about the
background. The purpose of clause 72 is to remove two potential
ambiguities in the definition of terrorism-related
activity in the Prevention of Terrorism Act. Section 1(9)(d) of the Act
currently includes the
phrase
“conduct which
gives support or assistance to individuals who are known or believed to
be involved in terrorism-related
activity.”
That
could be read as including individuals who unknowingly provide support
or assistance to those involved in terrorism-related activity. In other
words, the definition could currently include an individual A
supporting an individual B whom the Secretary of State knows or
believes is a terrorist, even though A does not know or believe that B
is a terrorist. That is the thrust of the definition as currently
drawn, which was never the intention.
I assure the Committee that the
current provision has never been interpreted in that way, but none the
less the ambiguity is there. The clause therefore amends the Prevention
of Terrorism Act 2005 to ensure that the definition includes only those
who provide support or assistance to individuals who are known or
believed by the individual concerned to be involved in
terrorism-related activity. Rather than enlarge, it narrows the focus
of the import of the original
definition.
Mr.
Grieve:
I am delighted to learn that, but in the
circumstances, and granted that the Minister has said that the power
has not caused any problems in the past, why are we putting in a
retrospective clause for its operation? I suggest that the measure is
not necessary, and on the whole I would prefer not to see
it.
Mr.
McNulty:
On balance, my advice is that it probably is
necessary. I take the hon. and learned Gentleman’s points, as I
said earlier, about the construct of the thing. The current definition
also includes a potential circularity. Under the current definition,
individual X could have a control order imposed on him because he was
supporting individual Y, who in turn was known or believed to be
supporting an individual Z who was involved in terrorism-related
activity. There could be any number of links in this chain, all of whom
could, in theory, have a control order imposed on them. The definition
of those captured by the Prevention of Terrorism Act 2005 is not
intended to be that wide and has never been used in that way, but the
ambiguity is still there. Clauses 72 and 74 simply remove that
circularity, ensuring that only those who provide support or assistance
to someone directly involved in terrorism-related activity are included
in the definition of terrorism-related activity. In the example given,
only Y would be caught by the revised definition, not
X.
Those paragraphs
may be otiose and over-cautious, but my advice, which has persuaded me,
is that on balance they are necessary. If we accept that—I know
that it is terribly offensive—given that narrowing of the
definition, notwithstanding the fact that it has never been interpreted
in that way, it would be foolish and illogical not to return
retrospectively to 2005 in terms of narrowing the definition. I know
that that sounds terribly complicated, but I am assured that it is
necessary and worthwhile.
Mr.
Llwyd:
Obviously, we have to be careful with
retrospection, but I have found one sentence in the explanatory notes
that sums up the
situation:
“This
amendment will be deemed always to have had effect, to reflect the
original policy intention and current
practice.”
That is not
very persuasive—those are fairly empty words, to be honest. I am
sure that if the Minister were on the Opposition Benches, he would feel
equally concerned about retrospection in this context. He says that on
the balance of probability it is necessary, but it is a rather huge
step, is it not?
Mr.
McNulty:
I do not want the Committee to think that I have
anything but the same aversion to retrospection in the law as the
Committee does. I am not diminishing the importance of not being
retrospective in legal practice. If, however, clauses 72 and 74 were
not included simply because over the past two or three years they have
not been interpreted in the way in which I have described, the
provision might be interpreted with a definition that is too broad and
that encompasses people in the net in a way in which the principal
policy did not seek to do in the first place. Over-cautious or
otherwise, it would be illogical not to amend the legislation and
introduce retrospection.
If we were to
try to achieve the same thing by another route—through the code
of practice or whatever else—we could say, “From now on,
this is what the Government clearly meant; we are very grateful that
people have not interpreted the definition in the potentially wider
context that they perfectly fairly could have done and from now on
we’ll make sure that they won’t” If we were to do
that, however, there would still be a chance—it would be
remote—that the activities of someone who is up for a control
order between 2000 and 2008 would come under the current broader
definition of the Prevention of Terrorism Act 2005 as the grounds for
the control order. Under clauses 72 and 74, however, the same person
with the same network and the same behaviour would quite rightly be
outside the net in terms of control orders, which was the original
intention. On balance, I do not think that the change is over cautious.
I appreciate that its presentation is terribly clumsy, as is
the language, but on balance it is the right and necessary thing to
do.
10
am
Mr.
Hogg:
There are two issues here. First, there is the
principle. I am very much against retrospective legislation. I do not
like seeing it in statute because it can be invoked later as a
precedent. The basic principle against retrospectivity is a very
important one to which we need to cling. The Minister has made a
perfectly decent argument, but it has one fatal flaw. Applications for
control orders—this is the triggering mechanism that we are
debating—are within the exclusive control of the Executive. If
the Executive, through the right hon. Gentleman, says that the
interpretation he has given is correct and that they will not be
seeking a control order in the future in the widest sense, we have
safeguarded the situation. That is partly because an application will
not be made. If it was made it would be contrary to the statement of
Government policy and I should have thought that the courts would
decline to support the making of the control order.
When one
weighs up the undesirability of the precedent and the degree of risk
that has been met by the Minister’s statement, I should have
thought that the argument rested against putting this in the Bill. I
suggest that the right hon. Gentleman reflect on the matter and that we
do not press it to a Division at this stage. Subsequently, he might
care to remove the clause but make a firm statement of Government
policy, which would be binding on the Government in future
matters.
Mr.
McNulty:
I am grateful that the right hon. and learned
Gentleman suggests that he will not press the amendment. I will happily
take this away to reflect on it. I already have done, by the
by. If this can be achieved by a firm statement of Government policy, I
am happy to look at that and report back to the Committee and the House
on Report, but I shall retain the option to confirm clauses 72 and
74.
Mr.
Grieve:
I listened to what my right hon. and learned
Friend the Member for Sleaford and North Hykeham said and there may be
good grounds for withdrawing the amendments at this stage. However, the
matter leaves me profoundly uneasy. I do not like the principle. The
logic of the Government’s position is not entirely clear to me.
I appreciate that the desire is not to widen the scope of control
orders but to narrow them. In short, the Government have concluded that
the current architecture of the control order system might lead to a
result that the Government did not want, in that a control order could
be granted in circumstances that they would regard as not being
justified. Therefore they want to close that down and to do so in a way
that deems that the closure dates back to the original control order
architecture of 2005.
On the face of it, the
Government’s justification for this is that it is entirely a
matter that will favour the person who might be subject to a control
order. There may be an alternative way of looking at this, although the
Minister may wish to reassure me that I am wrong. Control orders, by
their very nature, walk a delicate tightrope within the limits of
acceptability under the European convention on human rights. If in the
original drafting in 2005, the scope of the possible application of the
power was placed too wide, it could be argued that that might be a
ground on which a person made subject to a control order in the future
might say that the scope of the entire control order system could not
be upheld because it was too widely drawn and that that was an example
of it. I do not know. These are recondite legal arguments, but I can
see how it might happen. I cannot help but think that that is the
Government’s more likely fear, than that they would try to seek
a power that they are not comfortable with within the scope of the 2005
orders.
Mr.
Heath:
What the hon. and learned Gentleman says perfectly
illustrates the fact that it is time that we revisited the control
order regime to see how it could be improved and how some of its
defects, which have come to light through legal judgments and
elsewhere, could be addressed. I do not believe that this is the right
time to do so and I look forward to this afternoon’s session,
although we cannot possibly do the
matter justice in the context of the amendment tabled for that purpose
this afternoon, and it is entirely probable that we will not wish to
enter into a debate on it. Does the hon. and learned Gentleman agree
that it is time that we revisited the Prevention of Terrorism Act 2005
and looked at the matter in the
round?
Mr.
Grieve:
I do agree with him. He will recollect that my
party has supported renewal of the control orders on a number of
occasions, but that we indicated on the last occasion that we hoped
that this Bill might provide an opportunity for us to look at the
matter again in some detail. I fear that that will not happen, partly
because the Government themselves have not come forward with a series
of amendments to trigger it and because the necessities of time make it
unlikely that we can consider it in proper detail this
afternoon.
I am
mindful of the hon. Gentleman’s amendments. I saw that he had
tabled them, and if he had not, I probably would have tabled some of my
own. I doubt that we will have a better opportunity on Report, but
this little matter of a flaw in the control order
mechanisms that the Government have picked up on classically
illustrates why an overview of the matter may be desirable—not
in the sense of getting rid of control orders altogether, because we
have always accepted that they may be an unpleasant necessity. We have
held that opinion for some time, though we have been unhappy about
them, as I am sure the Government are.
The basic issue is whether we
should press the matter to a vote at this stage. I am slightly swayed
by the opinion of my right hon. and learned Friend and I will seek to
withdraw the amendment, but I am unhappy about the principle of
retrospectivity and would be minded to return to it on Report if the
Government cannot come up with a better formula for dealing with it.
The Minister might like to note what I have said and, with regard to my
anxiety about this being a possible loophole that a defendant could
properly exploit to attack the principle of control orders, reassure me
that that is not the Government’s main motivation, rather than
clearing up an area where the Government think that they might use
excessive powers, although of course in practice I am sure that they
have no intention of doing so. Subject to that, I beg to ask leave to
withdraw the
amendment.
Amendment,
by leave, withdrawn.
Clause 72 ordered to stand
part of the
Bill.
Clauses
73 to 76 ordered to stand part of the
Bill.
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