Counter-Terrorism Bill

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Schedule 6

Mr. McNulty: I beg to move amendment No. 77, in schedule 6, page 82, line 26, at end insert—
‘Terrorism Act 2000 (c. 11)
In Schedule 8, in paragraph 29(4)(a) and (c), the words “after consulting the Lord Chancellor”.’.
The Chairman: With this it will be convenient to discuss Government new clause 4—Pre-charge detention: minor amendments.
Mr. McNulty: Although amendment No. 77 is the lead amendment, it is simply a consequential amendment, giving effect to new clause 4, which rectifies an error in schedule 8 to the Terrorism Act 2000. Paragraph 9 of that schedule refers to
“the consequence specified in paragraph 8(5)(c).”
However—I am surprised that the Liberal Democrats have not noticed this, as they are usually good at such things—there is no paragraph 8(5)(c). It is a little over the top, since that paragraph was substituted by section 456 and paragraph 39(1) of schedule 11 to the Proceeds of Crime Act 2002. The purpose of the amendment is to rectify that appalling error, which was caused by the 2002 Act failing to make the necessary consequential amendment. That horrified me, as I am sure that it horrifies everybody else.
Proposed subsection (2) of new clause 4 is more substantive. Schedule 1 to the Bill amends the 2000 Act to provide for the new reserve power in relation to pre-charge detention in terrorism cases. The new provisions will require any application further to extend the period of pre-charge detention to be made to a senior judge. For England and Wales, that is defined as a High Court judge or a circuit judge designated by the Lord Chief Justice. For Northern Ireland, it is a High Court or county court judge designated by the Lord Chief Justice of Northern Ireland. That designation is because when we have discussed terrorism legislation and considered judicial oversight in the past, we have got rather hung up on judges’ status rather than their experience.
The Lord Chief Justice has written to us and said that it is not very useful to go for a circuit judge or High Court judge if their experience, such as it is, is in civil or matrimonial law, for instance. It is not their status that matters, but their experience. That, principally, is what we refer to in proposed subsection (2), which is why we think it more than appropriate that, yes, it should be a High Court or circuit judge, but it should be one designated by the Lord Chief Justice, who knows far better than the House about the experience of individuals. That is what new clause 4(2) does, and I hope that both measures are greeted with the equanimity that they deserve.
Mr. Heath: Mr. O’Hara, I felt I was chided by the Minister for not having spotted this, and I can only offer my most sincere apologies to the entire Committee for not having done so. Imagine my glee—imagine my smugness—had I spotted it. All that is now lost.
Amendment agreed to.
Mr. McNulty: I beg to move amendment No. 78, in page 83, column 2, leave out lines 6 and 7 and insert—
‘Regulation 45E(3) and (4).
In Regulation 109— (a) paragraph (1)(g) to (i); (b) in paragraph (4)(a), the words preceding paragraph (i); (c) paragraph (4)(b) and the word “and” immediately preceding it.
In Regulation 115(2), “45E(3),”.’.
The Chairman: With this it will be convenient to discuss the following: Government amendment No. 79.
Government new schedule 2—Disclosure and the intelligence services: consequential amendments.
Mr. McNulty: These amendments reconcile the “disclosure and the intelligence services” provisions of clauses 19 to 21 with existing legislation through consequential amendments. Had this been done in the 2002 Bill, I would not have had to move the last amendment. That is by the bye.
The amendments alter the representation of the people regulations for England, Wales and Scotland, removing restrictions on the intelligence and security agencies for normal disclosure, as these will now be covered by clause 19. They also preserve all rights conferred on the intelligence and security agencies to obtain information from the electoral register under the regulations.
Section 9(2)(a) of the Anti-terrorism, Crime and Security Act 2001 is removed, because there will be no need for a special information gateway for regular departments to pass information to the intelligence and security agencies once the new provisions are enacted.
Section 38 is removed from the Immigration, Asylum and Nationality Act 2006, which I took through and lovingly know as “IAN”, as there will be no need for a special information gateway to the intelligence and security agencies for immigration and nationality purposes.
Subsection 67 and subsection 39(4)(g) of the Statistics and Registration Service Act 2007, both of which I have been assured exist, are removed, as there is no need for a special information gateway there, either.
In essence, these are technical amendments to ensure that the provisions in clauses 19 to 21 have their intended effect, and I commend them to the Committee.
Amendment agreed to.
Amendment made: No. 79, in page 83, column 2, leave out lines 10 and 11 and insert—
‘Regulation 45D(3) and (4).
In Regulation 108— (a) paragraph (1)(g) to (i); (b) in paragraph (4)(a), the words preceding paragraph (i); (c) paragraph (4)(b) and the word “and” immediately preceding it.
In Regulation 115(2), “45D(3),”.’.—[Mr. McNulty.]
Mr. Heath: I will not move amendment No. 49, because it and the amendments with which it is grouped deal with the reform of the control order regime. I have given careful thought to this, and I think that we could usefully devote an hour and a half to two hours to that subject. Given that it is something that needs debating and that, in this last sitting, we still have to deal with very important issues under the new clauses, it is not appropriate for me to move the amendment, and therefore I do not intend to do so.
Schedule 6, as amended, agreed to.

Clause 90

Mr. Grieve: I beg to move amendment No. 223, in page 60, line 4, at end insert ‘subject to subsections (7) and (8).’.
The Chairman: With this it will be convenient to discuss amendment No. 224, in page 60, line 7, at end add—
‘(7) Section 22 (period of pre-charge detention) and Schedule 1 (amendments relating to period of pre-charge detention), shall not come into effect until codes of practice under section 66 of the Police and Criminal Evidence Act 1984 regulating such detention shall have been approved by a resolution of each House of Parliament.
(8) Section 23 (period of post charge questioning) shall not come into effect until the codes of practice under section 66 of the Police and Criminal Evidence Act 1984 and referred to in section 23(4) shall have been approved by a resolution of each House of Parliament.’.
Mr. Grieve: These amendments concern the commencement orders in clause 90 and the opportunity it gives to us here to consider whether we wish to introduce any impediments to those commencement orders. Both amendments are designed to do that. Although I have moved the lead amendment, perhaps it would have been more proper for my right hon. and learned Friend to have done so. Without in any way wishing to object to the generality of the provisions, particularly with regard to pre-charge detention, in relation to which the Minister knows our views, it seems to us that in the case of both pre-charge detention and post-charge questioning, it would be wrong for the power to come into operation, unless new codes of practice under section 66 of the Police and Criminal Evidence Act 1984 regulating such detention are approved by a resolution of both Houses of Parliament.
I wonder whether it is possible for the Minister to accept that, because in practical terms I do not see how either could be properly implemented unless those rules have first been approved. It is therefore a fairly simple issue. As I have said, that does not in any way diminish our objection in principle to the changes on pre-charge detention, and although we are in favour of post-charge questioning, both ought to be subject to a provision so that they cannot operate until we have resolutions from both Houses of Parliament in favour of the regulations. That will be absolutely key to whether this works properly, as we debated earlier.
Mr. Heath: These amendments, particularly as they refer to post-charge questioning, are entirely in line with our earlier debate. The Minster made it perfectly plain that the amendments to the PACE codes of conduct were needed and that it would not be possible for the measure to be implemented until they were in place. Indeed, he suggested that he would make every endeavour to ensure that the draft PACE codes of conduct were available to us before Report. He resisted the view in the first instance that the Bill should include an explicit requirement with regard to the PACE codes, but he undertook to consider it in the period between the Committee’s proceedings and Report.
We did not have identical undertakings with regard to pre-charge detention, because the debate on pre-charge detention took a rather different course and there were more substantive issues to be discussed, but exactly the same arguments apply in both cases. Therefore, I entirely support the right hon. and learned Member for Sleaford and North Hykeham. His amendments seem to have been hijacked by his Front-Bench colleague, but he will nevertheless have an opportunity to speak in a moment.
Mr. Grieve: The only reason why they were hijacked was because I was unaware that my right hon. and learned Friend the Member for Sleaford and North Hykeham had metamorphosed behind me at that moment, and I wanted to ensure that they were discussed.
Mr. Heath: The right hon. and learned Gentleman has most certainly metamorphosed, or at least appeared, and will no doubt wish to add his comments in just a moment. The amendment is sensible. In material terms, it probably makes little difference, because I think that the Minister will give a clear undertaking in any case, so that there cannot be implementation until the PACE codes have been amended. That being the case, given that he has reassured Members on this side of the Committee and that it is the last sitting of the Committee, the Minister might be predisposed to accept the amendments as proposed, although I have a nagging doubt that that will not be the case.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): I am grateful for the support of the hon. Member for Somerton and Frome, and indeed for the hijacking by my hon. and learned Friend the Member for Beaconsfield. It is important to have the codes of practice enforced before the relevant parts of the Bill are enacted and come into force, because clearly the powers that are being taken are far-reaching, and it would be quite wrong for those powers to be in existence without the codes that will prevent the abuse of detained people.
1.30 pm
The Minister has said on a number of occasions that he intends the codes to be passed before the relevant parts of the Bill become law. I hope he will forgive my observing that parliamentary time is not at his exclusive disposal. Ultimately, the Leader of the House and the usual channels will determine when the codes will be subject to affirmative procedure. Today, the Leader of the House explained that she did not know why a statutory instrument had not been debated long after it had been brought into force. I therefore think that the Minister ought to accept that the relevant parts of the Bill will not come into force until the codes have received the approval of both Houses, as prescribed by amendment No. 224.
Mr. McNulty: We are in danger of confusing ourselves on the issue of pre-charge detention. There is a well established PACE regime for pre-charge detention, not much of which will need to be substantially changed if schedule 1 becomes law. There may be some minor matters under code H regarding the protection of detained persons in matters such as transfers to prison and access to solicitors. Much of the paraphernalia is already in place for the 28-day regime. The changes might be so minor that they do not even require a statutory instrument.
We must not confuse and conflate the two arguments. There is a substantive argument before the Committee on post-charge questioning, but hon. Members will remember that I am deciding whether we can attach sufficient safeguards through the PACE codes or whether they need to be included in the Bill. Because I have not had much time, I have not reconciled myself to which option is best. It would be rather curious if I were to adopt an amendment committing to amendments to PACE but agree on Report with the thrust of our debate on post-charge questioning and the view of Liberty that the safeguards should be in the Bill. At the least, the first part of the amendment referring to pre-charge detention is unnecessary and the second is precipitate.
Mr. Heath: The Minister is saying what I expected. However, he is not entirely right that amendment No. 224 pre-empts the decision that he is considering. Even if his view was that there should be safeguards in the Bill, there would still need to be revisions of the PACE codes, which would still have to be brought forward by statutory instrument. Therefore the argument that implementation should not take place until the PACE codes are published would still hold.
Mr. McNulty: No, it would not. There is a substantive debate—I hesitate to say in the real world—outside this House that post-charge questioning will work only if there is a statutory model of safeguards in primary legislation, entirely outwith the PACE regulations. I do not know whether that is where we will end up, but if it is and the amendment is passed, we will be saying that having determined as a House that the post-charge questioning regime is better put in primary legislation completely separate from PACE, we cannot commence that part of the Bill until the PACE regulations have been suitably amended.
If I satisfy the House, as I expect that I will, that PACE is the principal instrument—although perhaps not the exclusive instrument—for oversight and safeguards on post-charge questioning, the subsequent statutory instruments will be passed by affirmative procedure, as they always have been. We should be able to capture the concerns of hon. Members at that point, rather than now.
Mr. Grieve: I am not persuaded by the Minister’s argument. He makes a good point when he says that in reality an extension from 28 to 42 days may require only minor amendments to the existing code. It will certainly require some amendments, I think, but I accept that they may be of a minor nature. Nevertheless, they will have to have been done before the change starts. I was therefore puzzled by his comments about post-charge questioning not being handled under PACE at all. I suppose that it is possible that a separate set of rules could be introduced for it, but I would have thought that it would be sensible for it to be dealt with as an amendment to PACE and have never envisaged otherwise. It is essential that those codes are in place.
If the Minister is prepared to give me an undertaking that he can give assurances to the House on Report that there will be codes in place prior to any introduction of the measures, I will withdraw the amendment. If he is not, I shall press it to a vote to mark the point that many on the Committee are concerned about this matter.
Mr. McNulty: I can, with a degree of confidence, give that undertaking. I was not suggesting that post-charge questioning, whatever regime we settle on, should be all outwith PACE; I am merely saying that there is a debate about whether that is the way to deal with the problem for the security of the defendant, rather than through PACE. That is not my view, but it is a view that is out there.
Mr. Hogg: May I express a word of caution? If I have correctly understood the right hon. Gentleman, it is at least possible that his Department will conclude that the safeguards in respect of post-charge questioning should be the subject of future legislation. I am not saying that that will be the case, but that it is a possibility. I may have misunderstood him.
Mr. McNulty: No, what I was saying was that if—it is a remote if—the Government decided that post-charge questioning needed its own new statutory model totally outwith PACE, that would be forthcoming during the parliamentary proceedings of the Bill, and not in subsequent new legislation.
Mr. Hogg: I am glad, because I was going to say that if I had correctly understood the right hon. Gentleman, we could see quite a long delay before post-charge questioning came into effect, which would be regrettable, but it appears that I had misunderstood and I am sorry for that fact.
Amendment, by leave, withdrawn.
Clause 90 ordered to stand part of the Bill.
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