Counter-Terrorism Bill

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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.
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”.
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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