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Lord Dixon-Smith: I listened with interest to what the Minister said, for which I am grateful. Being a mere layman, I am not as confident as he is about the law and lawyers. I have found that one can ask for legal opinions until the one that one wants is received. That may sound cynical but it seems to be the position. I am willing to accept the Minister's assurance that national security includes international security. If it is the position that what Ministers say in the House has to be taken into account by a court of law, I am happy with that assurance.
Lord Donaldson of Lymington: Before the noble Lord sits down, perhaps I should say that while I understand that if one asks for enough legal opinions, one will get the one that one wants, that does not apply when one asks judges.
Will the Minister consider who told him that the words used in a later statute will alter the meaning of words used in an earlier one? That is a somewhat surprising proposition. I am very surprised that the addition of the words referred to in the amendment would imperil anything at all. They seem merely to make for clarity. A single judgment or speech by a
judicial Member of the House is an unsure basis on which to base a view of the law. Do not think that I am prejudiced. I was entitled to sit in this House but I preferred to continue to sit as Master of the Rolls.
Lord Rooker: What I have just heard from the noble and learned Lord, Lord Donaldson, has stopped me saying what I was going to say, which was very supportive of judges. I shall take early steps to draw the remarks of the noble and learned Lord, Lord Donaldson, to my right honourable friend the Home Secretary as there might be some doubt about the matter. At the moment, we are resting on the fact that the words
- Xin the interests of national security"
Lord Dixon-Smith: I am even more grateful to the noble and learned Lord, Lord Donaldson of Lymington, for reasons that I do not need to explain. He has helped to clarify the situation. We may perhaps need to return to this matter on Report. I do not alter what I was in the process of saying. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton moved Amendment No. 145A:
- Page 32, line 31, after XIf" insert X, in England and Wales or Northern Ireland,".
The noble Lord said: The two amendments in the name of my noble friend Lord Rooker pick up the point underlying Amendments Nos. 146, 146A and 146B, which appear in the name of the noble Lord, Lord Dixon-Smith, and his colleagues. It is fair to pay some tribute to the noble Lord for alerting us to the sense of making the change for Scotland to Clause 67. Indeed, I invite the Committee to accept Amendment No. 146B, which is in the name of the noble Lord, Lord Dixon-Smith. He has scored a direct hit with that amendment.
At present Clause 67(1) provides for a constable applying for a search warrant to a sheriff or justice of the peace—that is the effect of subsection (4). There is nothing intrinsically inappropriate in that and there are instances on the statute book and at common law where constables do apply in Scotland for search warrants. However, the more usual format now, apparently, in circumstances such as those contemplated in Clause 67, is for the Procurator Fiscal to apply to the sheriff for a warrant authorising a constable to enter premises and search for, seize and retain dangerous substances. That is the approach taken, for example, for comparable provisions in the Terrorism Act 2000 and in the Criminal Procedure (Scotland) Act 1995.
Amendment No. 146AA achieves that for Scotland. Amendment No. 146B removes subsection (4), which will become redundant, and Amendment No. 145A
ensures that the current provisions in subsection (1) continue to apply to England, Wales and Northern Ireland.I anticipate that the government amendments will meet precisely the point that the noble Lord, Lord Dixon-Smith, and his colleagues had intended in their amendments to Clause 67. I hope that in view of that, he will feel able to withdraw Amendments Nos. 146 and 146A and support the government amendments. I beg to move.
The Duke of Montrose: I want to say a few words about the amendments standing in the name of my noble friend Lord Dixon-Smith. Members of the Committee do not need reminding of the importance of constructing the legislation in a way that is compatible with the practice of Scottish law. The Minister took on the meat and substance of the amendments that were tabled by my noble friend, and I am grateful to hear that he is prepared to accept Amendment No. 146B—without that, there would have been an untidy element in the Bill. I have similar worries about the suitability to Scotland of Clauses 112 and 113. I mention that now but may return to it at a later date. We will not press our amendments.
On Question, amendment agreed to.
[Amendments No. 146 and 146A not moved.]
Lord Bassam of Brighton moved Amendment No. 146AA:
- Page 32, line 39, at end insert—
On Question, amendment agreed to.
Lord Dixon-Smith moved Amendment No. 146B:
On Question, amendment agreed to.
Clause 67, as amended, agreed to.
Lord Hylton moved Amendment No. 146C:
The noble Lord said: I accept that some of the penalties for offences that are connected with international terrorism may need to be strengthened over and above the levels in the Terrorism Act 2000 or in other existing laws. I also understand that the Government may have felt it necessary to send a strong signal to the courts about the seriousness of terrorist offences.
I invite the Committee to consider whether or not the Government may have overdone things by specifying penalties that are three times more severe than at present. That is the case in Clause 116 and possibly elsewhere. If the Government's position is that these offences are completely new, are they satisfied that they have selected the appropriate level
In regard to prisons, your Lordships know that some 23 local gaols are now overcrowded by 5,000 prisoners. That makes it difficult or almost impossible in some cases to organise constructive regimes. Therefore, on general penal grounds there are strong reasons not to increase the length of sentences, but to use fines and other punishments in combination to reduce the length of imprisonment. I look forward to hearing the views of the Government. I beg to move.
Lord Rooker: I understand the position taken by the noble Lord, Lord Hylton, but we cannot accept his amendment. The offences include failure to notify the Secretary of State that dangerous substances are being held or used, failure to notify the Secretary of State about persons who have access to those substances, which are listed, or failure to comply with reasonable security instructions from the police.
This is part of the process of changing gear and upping our game. Therefore, we need to send out a strong signal that these are potentially serious offences which could put the lives of many people at risk. We are talking of a maximum penalty of five years or a fine, although it could be both, but that would be a matter for the courts to judge on the merits of the individual case. We believe that we should give them a greater maximum with which to work. I hope that on reflection the noble Lord will withdraw his amendment.
Lord Hylton: I take note of what the Minister has said about the seriousness of the offences. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 146D not moved.]
Clause 78 [Regulation of security of civil nuclear industry]:
Baroness Miller of Hendon moved Amendment No. 147:
The noble Baroness said: In moving to Amendment No. 147, I shall speak also to Amendment No. 147A and to Amendment No. 147B, which is consequential on Amendment No. 147A. Amendment No. 147 can be explained simply and briefly. It seeks to leave out line 43 of Clause 78 which deals with the regulation of security of the civil nuclear industry. Line 43 permits the regulations to,
The offences in this clause are rightly considered serious; for example, those that are triable either way can attract up to two years' imprisonment or a fine not exceeding the statutory maximum, or both. The formation of such offences should be subjected to proper democratic examination. The Secretary of State has already been criticised for not allowing proper time for scrutinising this important piece of legislation and he certainly should not seek to compound that problem by using secondary legislation for matters that affect the liberty of people in this country.
I turn to Amendment No. 147A, which is a probing amendment. It seeks to clarify whether the reference in this clause to offences that are Xtriable either way" includes solemn proceedings in Scotland. In Scotland the accused person has no right to elect the forum in which the proceedings will be raised. That is determined by the prosecutor.
The Law Society of Scotland is aware that a reference to offences triable either way can be to the accused's right to elect trial by jury in England and Wales. It is unclear from the Bill whether offences under the solemn procedure could be created by virtue of these regulations. That is why we have tabled this probing amendment in order to clarify the position. Amendment No. 147B is consequential. I beg to move.
X(1A) If, in Scotland, on an application made by the procurator fiscal the sheriff is satisfied as mentioned in subsection (1), he may issue a warrant authorising a constable to enter the premises, if necessary by force, and to search them."
Page 33, line 10, leave out subsection (4).
Page 33, line 21, leave out Xfive" and insert Xthree".
9.15 p.m.
Page 38, line 43, leave out paragraph (d).
Xcreate summary offences or offences triable either way".
We believe that to create criminal offences is an improper use of regulations. If criminal offences are to be created, they should be dealt with in primary legislation, which would provide the opportunity for proper scrutiny.
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