New Clause
5
Proscribed
organisations
‘(1) Section 3
of the Terrorism Act 2000 (c. 11) (proscription) is amended as
follows.
(2) In subsection (5)
after paragraph (d)
insert—
“(e) has
been involved in support or acts of
terrorism.”’.—[Mr.
Grieve.]
Brought
up, and read the First
time.
Mr.
Grieve:
I beg to move, That the clause be read a Second
time.
The
Chairman:
With this it will be convenient to
discuss
New clause
11—Proscribed organisations (No.
2)
‘(1) Section 3 of the
Terrorism Act 2000 (c. 11) is amended as
follows.
(2) In subsection (5)
after paragraph (d)
insert—
“(e) has
been involved in support or acts of terrorism and has not unequivocally
renounced support of
terrorism.”.’.
Mr.
Grieve:
The Bill’s passage offers
us an opportunity to look at other aspects of previous terrorism Acts,
particularly the Terrorism Act 2000, in respect of proscribed
organisations. The Minister will be aware that there has been some
anxiety expressed in the House that, in the past, Ministers, including
the last Prime Minister, indicated the necessity, or desirability at
least, of proscribing certain organisations that were linked to
terrorism, but having the told House that action would be taken,
nothing has happened and it has gradually emerged that there are doubts
about whether the organisations concerned fit the bill for
proscription. In one case the arguments advanced in the Commons have
centred around Hizb ut-Tahrir and its association with terrorism. The
concerns expressed about that have not, however, led to it being
banned.
It seems that
when one considers the wording of the Terrorism Act 2000, it is at
least arguable that it does not deal adequately with organisations that
have in the
past supported terrorism—and in some
circumstances actively carried it out—but have successfully
stepped to one side for the purpose of maintaining their public
credibility and maintained a stark ambiguity as to their present
status. For that reason, we thought it right for the purposes of
stimulating debate to table two possible models for dealing with the
problem, one of which would allow the proscription of an organisation
that has been involved in support or acts of terrorism—new
clause 5. Having tabled that, I was concerned about it because it
seemed to me that it was capable of drawing the net too widely,
particularly because it would, for example, catch organisations such as
Sinn Fein which have undoubtedly supported terrorism in the past but
have now unequivocally abandoned
it. The better model we might
therefore choose to follow is that in new clause 11 which
adds—this is my preferred model—to the words of new
clause 5
“has been
involved in support or acts of terrorism and has not unequivocally
renounced support of terrorism”.
If we were to adopt such
a model it seems that organisations that have, in many cases, a proven
link with terrorism, but have not acquired an ambiguous status which
often appears to be entirely deliberate, could, if necessary be put on
the proscribed list by the Government.
I am aware that arguments are
sometimes advanced that it is better not to proscribe organisations
because it keeps them out in the open. There are some intelligence
and policing advantages from doing so, but
nevertheless we have a number of organisations, some of which are
located in this country, with agendas that appear to be extremely
closely associated with terrorism.
In seeking to put this forward,
I do not in any way wish to suggest that it is not possible for
organisations to change their spots. After all, the Government have
just lost a case concerning an organisation linked to Iran. I have
taken the view over the past two years that there was quite compelling
evidence to suggest that it was no longer associated with terrorism at
all, and it appears to have satisfied a court of that fact, although
the Government remain unhappy about that and are appealing the matter.
I shall not touch on that further; I simply put it forward as an
illustration of one of the sorts of areas that we have to look
at.
Leaving that
particular example to one side, the amendment in new clause 11 would be
neutral in that case. If an organisation can show
that it has unequivocally renounced terrorism, is not actively
supporting it, or carrying out acts of terrorism, there would be no
grounds for its proscription. But if it could still be shown that they
have displayed a continuing ambivalence when, in the past, they have
either supported terrorism or perpetrated acts of terrorism themselves,
it would provide the Government with an extra weapon by which it could,
if necessary, bring a motion for proscription before the House of
Commons.
Tom
Brake:
The hon. and learned Member for Beaconsfield was
right to say that new clause 5 was too widely drafted. However, perhaps
some of the concerns we have about new clause 5 are equally applicable
to new clause 11 in terms of an organisation being able to demonstrate
that it
“has not
unequivocally renounced support of
terrorism”.
I do
not know whether there is a legal definition for unequivocally
renouncing something. I assume that there is not. Therefore to be able
to demonstrate that,
for example, the leading lights of an organisation
have unequivocally renounced support for terrorism but individual
members have not, just as with new clause 5, there are concerns about
the drafting of that and how broad it is. Because of our concerns about
being able to demonstrate how an organisation has unequivocally
renounced support of terrorism, should the hon. and learned Gentleman
be minded to press the matter to a vote, we will not be supporting
him.
Mr.
Grieve:
The purpose of this new clause is not only to
stimulate debate and to listen to what the Minister has to say; it goes
beyond that. I took the words “unequivocally renounced”
because those were the words used in the context of the Northern
Ireland peace process about the IRA and Sinn Fein. Although it can
clearly always remain a subject of debate and polemic, there came a
point where it became fairly apparent that there had been an
unequivocal renunciation. That seemed to be as good a term as I was
likely to find.
Tom
Brake:
I thank the hon. and learned Gentleman for
explaining that. He made a good choice. However, what is also
illustrated is that in arriving at the point where it was agreed that
Sinn Fein had unequivocally renounced support for terrorism, there were
a large number of staging posts along the way where some argued that it
had, and others that it had not. Because of the problems about agreeing
where the point of unequivocal renunciation arises, we are not inclined
to support the measure.
Mr.
Hogg:
Does not the new clause have one great
advantage? If, for example, the Government were
minded to proscribe an organisation, and that organisation considered
that it fell within the exemption as it had renounced terrorism, the
process of proscription would enable that organisation to demonstrate
that it had indeed renounced it. To that extent, it would be a helpful
process.
Tom
Brake:
From a sedentary position my hon. Friend the Member
for Somerton and Frome says that it widens the scope rather than
narrowing it.
Mr.
Heath:
It worries me that this widens
the possibility of proscription. I rarely say that Ministers should be
given the benefit of the doubt, but when they are in possession of the
intelligence reports and the advice of the police agencies, they can
make an assessment about whether an organisation is engaged in
terrorism or is a supporter of it. The new clauses do not add anything
other than encouraging the view that a national clamour through the
press, or through MPs, can apply pressure on Ministers to proscribe an
organisation that their intelligence tells them should not be
proscribed.
Tom
Brake:
My hon. Friend
and others have demonstrated that the official Opposition spokesman has
achieved his aims in terms of engaging in a debate about this matter,
and we will all listen carefully to what the Minister says in
response.
Mr.
McNulty:
I want to thank two Conservative members who
approached me on this matter some time ago, asking
whether this might be an appropriate occasion to explore it. I am
grateful to them, particularly—without
being invidious and naming names—to the hon. Member for Lancaster
and Wyrewho spoke to me some time ago, and fair play to him. The only
problem was timing—not his, but timing more generally.
The hon. and learned Member for
Beaconsfield quite fairly pointed out that we have just had a recent
judgment from the Proscribed Organisations Appeal Commission with
regard to the People’s Mujahedeen Organisation of Iran, on which
we are appealing. As a result of both the Court of Appeal judgment,
which we now have, and the original POAC judgment, we may seek to make
some changes to the law on proscription in the Bill on Report. New
clause 11, rather than new clause 5—as the hon. and learned
Gentleman rightly said—might be worthy of consideration. I agree
with him that even if the wrong organisation is captured, were this to
be part of such an amendment on Report, the process would be that
organisation’s opportunity to renounce as fully as possible.
[
Interruption.
] I know that we lost the appeal, I
have worked that out. I was referring to reviewing the Court of Appeal
judgment as well as POAC’s original judgment. I am painfully
aware that we have lost. We are at an appropriate stage to review both
elements of those documents and the entire architecture of the
proscription legislation, and as part of that review process, I
undertake to take the import of new clause 11 away and, if appropriate,
to come back on Report with a conclusion to our deliberations on what
is a very serious new clause. Again I am grateful that it has been
tabled, but I should like it to be
un-tabled.
2.45
pm
Mr.
Grieve:
I shall satisfy the Minister by un-tabling it, if
that is the correct terminology, although I have some slight doubt
about that. The Minister’s demotic adds richly to the
proceedings of the Committee. This is an important issue. New clause 11
could well provide the basis of a formula that could be of considerable
assistance to the Government in dealing with some organisations on the
fringes of terrorism, in cases where there seems to be a considerable
amount of evidence that they are fellow travellers with terrorism, even
if they have found it convenient for their own purposes to step to one
side and claim that their hands are clean. For those reasons, I very
much hope that the Minister’s assurance is that the issue has
not been lost sight of and can be returned to, and I beg to ask leave
to withdraw the
motion.
Motion and
clause, by leave, withdrawn.
New Clause
8
Plea
negotiation
‘(1) The
Secretary of State must, within 12 months of the passing of this Act,
make regulations which make provision for the use of plea negotiation
for defendants charged with terrorism offences or offences with a
terrorist connection.
(2)
Regulations made under subsection (1) may provide for the circumstances
in which defendants can mitigate their sentence by pleading guilty at
trial.
(3) The Secretary of
State may before making regulations under subsection (1), consult such
organisation as she considers
appropriate.’.—[Mr.
Hogg.]
Brought
up, and read the First time.
Mr.
Hogg:
I beg to move, That the clause be read a Second
time.
I rather regret
that my hon. Friend the Member for Newark is not here, because this was
very much his new clause. I have not discussed new clause 8 with him,
so I do not entirely know what was in his mind, and these are rather
more my observations than they are
his.
Subsection
(2) is of course in accordance with judge-made law as it is, namely
that defendants who plead guilty at the earliest possible opportunity
can achieve a discount in their sentence. In my view, that is wholly
right. The maximum is about one third for the earliest possible
indication of a plea of guilty. I think that that is right and should
apply to terrorist offences as to any
other.
Subsection (1)
could apply not just to a terrorism Bill, but to any
criminal justice Bill, because there is considerable merit in allowing
pre-trial plea bargaining. As a matter of fact, pre-trial plea
bargaining has existed for a very long time and still exists—and
a very good thing too. There is very frequently discussion between
defence and prosecution counsel as to what plea might be acceptable.
Very often, too, one can go to the judge and gain an indication as to
what would be the appropriate sentence on the basis of an agreed set of
facts.
There probably
is merit in some statutory or quasi-statutory framework, and there are
one or two things that have to be provided for within such a framework.
First, there must be some provision whereby a defendant’s
interests cannot be prejudiced. I have known of a number of cases where
defendants have been advised of the desirability of pleading guilty,
have indicated a willingness to do so, and then start ratting on the
deal. Everybody is rather shafted by that process, so one does have to
address it so that the defendant is not misled and, incidentally, other
people are not prejudiced by the defendant subsequently
ratting.
It is also
very important to ensure that there is an agreed basis for the plea,
and the process has to be worked out. If necessary, there may have to
be what is referred to as a Newton trial or a Newton process to
determine the basic facts. That needs to be provided for in the
regulations, as does a process whereby the judge is brought into the
discussion so that he can give a fairly binding
indication of what the appropriate sentence would be. Those matters all
have to be addressed by the regulations, and other criteria too may
need to be incorporated, but that there should be a process of
pre-trial plea bargaining seems quite plain. I see no reason why it
should be confined to terrorism, and it is probably a good thing to
give it a quasi-statutory basis, and I commend the motion to the
Committee.
Mr.
McNulty:
I, too, am rather disappointed that the hon.
Member for Newark is not here because I know that this is a subject
that exercises him. There may be some merit in exploring it further,
but not in the context of this new clause. As the right hon. and
learned Member for Sleaford and North Hykeham has said, either it
rather lamely describes what already prevails, in circumstances such as
R v. Goodyear, or—I am not sure whether this is in the
mind of the hon. Member for Newark—if it aims to allow
prosecutors to accept a plea on a lesser charge than is justified by
the alleged offending, the new clause is objectionable in principle. If
he is trying to go for the full-on American-type system, as I described
earlier, we object to it in principle.
The right hon. and learned
Gentleman will know that we are looking closely at the results of a
plea negotiation framework for fraud cases, which is quite separate
from this Bill. If that comes up with any ideas in the area of plea
negotiation that we think will be useful in combating terrorism, we
will take them forward. He quite reasonably says that there is already
a plea negotiation process in our due process and I am not sure how
much beyond that the hon. Gentleman was seeking to
go.
I
will explore the idea further, taking into consideration the framework
for fraud cases. I do not know whether I will be able to say anything
further on the matter on Report, but it may well be in the
Committee’s interests for the motion to be withdrawn. Perhaps
the hon. Gentleman will be allowed to enlighten us on Report. I have
some sympathy with the thrust of the new clause, but I do not agree
with the intent as it has been perceived in the hon. Gentleman’s
absence. I ask that the motion be
withdrawn.
Mr.
Hogg:
I shall withdraw the motion and I hope that my hon.
Friend the Member for Newark will have an opportunity on Report to deal
with the matter. I will, however, make two brief comments. First, I do
not dismiss as rapidly as the Minister the proposition that one should
be able to accept a plea for an offence less than that which the
evidence discloses. There is sometimes merit in accepting pleas for
lesser offences. Never forget that by doing so one is sparing witnesses
the trauma of giving evidence and saving a huge amount of money. It is
sometimes pretty artificial whether a person is charged with A or B.
There is a discretion and sometimes there is merit in not charging for
the maximum offence. I hope that the Minister will not be quite so
dismissive of that
proposition.
Secondly
and differently, while I welcome the fact that plea bargaining
considerations are taking place in the context of fraud cases, I hope
that the Minister will not turn his face from widening the scope of any
changes that are brought forward to include offences other than fraud.
Truth to say, while fraud is a recognisable category, the issues
revolving around fraud, other than the evidential problems, are not in
any sense sui generis. I would have thought that if one was going to
approve a process for plea bargaining in relation to fraud cases, it is
very difficult to see why it should not be extended across the spectrum
of criminal law. I hope that he will take a rather more flexible
approach than his intervention indicated. Subject to those two
observations, I beg to ask leave to withdraw the
motion.
Motion and
clause, by leave,
withdrawn.
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