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Lord Kingsland: I am most grateful to the noble Baroness for introducing the amendment. As she rightly says, we have, as a result of an earlier vote, given the Director of Public Prosecutions a responsibility which precedes rather than follows the imposition of the control order. Therefore, we believe that Amendment No. 126 should be placed on the face of the Bill but be slightly redrawn to make it consistent with the wording of our successful amendment.

We believe, in particular, that if the DPP informs the court at the outset that a prosecution is not possible, nevertheless, following the imposition of the control order, the possibility of prosecution should remain under review. I sense that that is fundamentally what Amendment No. 126 is intended to achieve.

I would prefer to see the responsibility in Amendment No. 126 to continue to be that of the DPP. I am uneasy about any deciding responsibility being on the shoulders of the chief officer of the particular policing area in which the alleged threats to security took place. But I accept, of course, that the police may well play an important role in furnishing the DPP with the additional evidence that he may need to change his mind.

While not opposing the amendment today, I should like to think that, between now and the Report stage, the Government will look at the Committee's earlier amendment and seek to re-craft Amendment No. 126 so that it conforms with the intention that has already been expressed by the Committee.
 
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6.45 p.m.

Baroness Scotland of Asthal: The role of the DPP is one of making decisions whether to prosecute; he is not responsible for preventative orders. We feel very strongly indeed that it will be important for the DPP to maintain his independence from the Home Secretary. That was our view before the vote. Of course we shall consider the issue but I need to make it clear that, by virtue of the vote today, the Government do not assent to the change in that division of responsibility.

Lord Kingsland: We are entirely in agreement on the matter of principle which the noble Baroness has just expressed. We do not want to see anything on the face of the Bill that compromises the independence of the DPP. But, with great respect to the noble Baroness, that is not the intention that we on these Benches seek. The DPP looks at the evidence and, independently of the Secretary of State, decides in the first instance to advise the court whether or not a prosecution is possible.

We wish the DPP to go on making these investigations after the control order has been imposed, entirely independently of the Secretary of State, to see whether a prosecution might be initiated in two, three or four weeks, or in two, three or four months, after the control order has been imposed.

This has absolutely nothing to do with the Secretary of State. It is something that the DPP does entirely independently of the Secretary of State. Indeed, those are the only circumstances in which we would be prepared to accept the control order system. Once incarcerated or restrained in any way, the primary right of every British citizen is to be able to fight his or her case out in the criminal courts. Just because a control order has been made, that does not in any way entitle the DPP, under the Bill, to resile from his obligations to go on looking for an opportunity to bring the person under the control order to trial in the normal way.

Lord Forsyth of Drumlean: I agree with everything my noble friend Lord Kingsland said. In moving the amendment, the Minister seemed to have matters the wrong way round. This happens after a control order, whereas the involvement of the prosecuting authority should be before it. The control order should be the last resort.

I wish to pursue the questions that I put to the Lord Chancellor last week in respect of Scotland. I am still not clear about this and perhaps the Minister can tell me the result of the consultations that have obviously gone on since then within Scotland.

I notice that my noble friend Lord Lang, who was also Secretary of State for Scotland, is here. My recollection is that in the good old days before devolution—before we had a Scottish Parliament—when we had administrative devolution, if a procedure of this nature was being carried out in Scotland the Secretary of State for Scotland would be involved.

Looking at the amendment as drafted there does not seem to be any involvement by any of the people who are democratically accountable in Scotland. The Minister
 
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said that the law officers would not be involved and that it would be a matter for the procurators fiscal. I find it extraordinary that where draconian powers are being taken we have a proposal—from a Government who say that they want decisions affecting Scotland to be made in Scotland—that marginalises the law officers of Scotland and the First Minister and the Ministers in the Scottish Parliament, who do not seem to be at all involved in the process.

Am I misunderstanding the situation? Will the Minister make it clear whether the proposal has been discussed with the First Minister and the law officers in Scotland and whether they have given their agreement to the procedure? If they have, it is extremely odd.

Baroness Scotland of Asthal: I should make it absolutely clear that terrorism is not a devolved matter and it never has been. Terrorism remains with Westminster. As a result there will be consultations on how orders will be implemented but they do not need the consent of the devolved administration in Scotland, because these matters have not been devolved but are reserved.

I have already made it plain that the Secretary of State who acts on these matters in the normal way on behalf of the United Kingdom will be the Home Secretary. Of course it is possible for any Secretary of State to be substituted for the Home Secretary if the need arises. I can reassure the noble Lord, Lord Forsyth, that colleagues have been consulted about the measures and there is no dissent from Scotland.

Lord Forsyth of Drumlean: I am sure that there is no dissent—this Government brook no dissent—and what the Minister says about terrorism not being a devolved matter is correct. My point was that prior to devolution if such an action was being taken the Secretary of State for Scotland would have been consulted and involved. I am simply asking the Minister to confirm that the position now is that no Scottish Minister or law officer will be involved in any way; and that those Ministers have been consulted and have given their agreement to the procedure.

The Minister is looking irritated but this is an important matter. We have a separate legal system in Scotland and separate Scottish law. The Government chose to change the rules by bringing in the Scottish Parliament. Up to now the operation of these security measures has involved the Secretary of State for Scotland and officials in what was then called the Scottish Office; that appears to have disappeared completely. We need to know that because it is important that people understand where accountability lies.

Lord Cameron of Lochbroom: Before the noble Baroness replies, having held the position of Lord Advocate I express a degree of surprise that the relevant prosecuting authority defined in the clause in relation to offences likely to be prosecuted in Scotland means the appropriate procurator fiscal.

How does the Secretary of State know who is the appropriate procurator fiscal? The procurator fiscal acts under direction of the Lord Advocate, who is
 
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responsible for prosecution of offences in Scotland. If there is to be some analogy he is the responsible person for the whole of prosecutions in Scotland; just as the Director of Public Prosecutions is in England and the Director of Public Prosecutions for Northern Ireland is for Northern Ireland.

Perhaps the Government might like to reconsider this point because I regard as inappropriate the idea of the Home Secretary referring to some office in Scotland where there was a procurator fiscal with responsibilities directly related to the prosecution of a serious offence that would normally be prosecuted by the Lord Advocate through his Crown counsel. Will the noble Baroness reconsider the matter? I was deeply worried to see in various parts of the Bill reference to the appropriate procurator fiscal or the procurator fiscal in relation to Scotland by comparison with the Director of Public Prosecutions in other parts of Great Britain and Northern Ireland where different jurisdictions are involved.

Lord Lang of Monkton: Before the noble Baroness replies, I would like to endorse the remarks of my noble friend Lord Forsyth and the noble and learned Lord, Lord Cameron of Lochbroom, the former Lord Advocate. It is surprising that at the same time as bringing in devolution in Scotland the Government have now brought in some form of reverse upward devolution; whereas extensive consultation and involvement did take place in that respect, even though those matters are not now devolved.

It is all the more surprising since the present Lord Chancellor is the third Scottish holder of that post. One would therefore expect a higher Scottish profile in consideration of these matters. These matters are important not only in Scotland but in the context of the United Kingdom. I hope that the noble Baroness will give a careful and considered reply.


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