Schedule
6
Repeals
Mr.
McNulty:
I beg to move amendment No. 77, in
schedule 6, page 82, line 26, at
end
insert—
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‘Terrorism
Act 2000 (c.
11)
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In Schedule 8,
in paragraph 29(4)(a) and (c), the words “after consulting the
Lord
Chancellor”.’.
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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—
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‘Regulation
45E(3) and
(4).
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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.
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In
Regulation 115(2),
“45E(3),”.’.
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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—
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‘Regulation
45D(3) and
(4).
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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.
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|
In
Regulation 115(2),
“45D(3),”.’.—[Mr.
McNulty.]
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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
Commencement
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.
The first part
of the amendment relating to pre-charge detention is not necessary at
all; if, subsequent to investigation after the Bill has been passed, or
if, during
our deliberations it seems that there have been more substantive changes
to PACE from what after all is an extension to an existing regime
already covered by code H, that is something that we would have to
return to. It is a little premature to insist on PACE provision for
post-charge questioning, because in the end that may not be the route
that we collectively decide to take for oversight and safeguards. On
that basis, the amendment should be
withdrawn.
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.
Mr.
Grieve:
I am grateful for those comments from the Minister
and I will withdraw the amendment. Before I do so, I should say that
although he has
clarified the point, one of my concerns is that while we have argued
there should be a degree of judicial supervision for the post-charge
questioning process, even if there were judicial supervision, we would
still need regulations for covering how it is carried out. I never saw
that issue as being a case of either/or, and I see the Minister nodding
so I think that we are on the same wavelength on that point. I beg to
ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
90 ordered to stand part of the Bill.
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