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The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendment No. 72. They appear to have been degrouped in error, as they clearly belong to the same group. I shall deal with them as one.
It should not take too long to go through these amendments since I think that they will be welcomed. Clause 20(7) makes it clear that references to,
include descriptions of general types of conduct as well as descriptions of specific instances of conduct. For example, the provision means that a description of launching suicide attacks as conduct to be emulated is covered, as well as descriptions of launching suicide attacks against particular targets or at a particular time. I am sure that noble Lords will agree that this provision is useful. Similar wording can be found in Clause 21.
Where there has been some disagreement is that some of your Lordships have suggested that it might be difficult to understand the expression,
Although I am satisfied that the expression is entirely clear and perfectly comprehensible, I am as always happy to meet, as far as is possible, the concerns raised by Members of your Lordships' House. I am therefore pleased to move amendments which would replace the expression,
I am satisfied that this expression achieves the same effect as the original formulation, and I imagine that noble Lords will regard it as a clearer statement of what we want to achieve. I beg to move.
On Question, amendment agreed to.
Clause 21 [Grounds of proscription]:
4.15 pm
Lord Kingsland moved Amendment No. 70A:
Page 19, leave out lines 29 to 44 and insert "indirectly encourage terrorism, within the meaning of "indirect encouragement" as specified in section 1(3) of the Terrorism Act 2006"
The noble Lord said: My Lords, I beg to move formally.
Baroness Scotland of Asthal: My Lords, is the noble Lord saying that he is moving Amendment No. 70A formally and will not speak to it?
Lord Kingsland: My Lords, my understanding, and I beg your Lordships' pardon—
The Deputy Speaker (Lord Tordoff): My Lords, perhaps I may intervene and say that it would help the Chair if we could hear what was being said.
Lord Kingsland: My Lords, the reason why I think it appropriate to move the amendment formally is that
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we had a long debate on the definition of "indirect encouragement" and the meaning of "glorification". That debate was resolved with a vote which expunged glorification from the Bill, and redefined "indirect encouragement" in the way that is wholly familiar to the noble Baroness.
In my submission, the ineluctable logic of that vote is that my amendment should be moved formally. I beg to move.
Baroness Scotland of Asthal: My Lords, I am grateful for the noble Lord's explanation. It is right, however, for the Government to have a moment or two to explain our response to that amendment before we take the matter further. That is why I invited the noble Lord to do so. However, I am unsure where we are now, procedurally.
The Deputy Speaker: My Lords, Amendment No. 70A has been moved. That is the Motion before the House at the moment.
Baroness Scotland of Asthal: My Lords, then I shall not take long.
The Government accept the position that has been brought about as a result of amending Clause 1. For the record, however, the Government believe that this is something to which we will have to return. As the noble Lord, Lord Kingsland, has just indicated, and as your Lordships are well aware, the reference to glorification in Clause 1 has now been taken out. In its place, a new definition of "indirect encouragement" has been inserted into the clause.
As this is Burns Night, I hope that I may be permitted to observe that the decision to remove the glorification provision might be taken as proof, were any needed, that, in the words of the poet, the best laid plans,
I hope that noble Lords who hail from north of the border will forgive my poor pronunciation. However, it is right and fair to alert the House that the Government have accepted the amendment technically but not necessarily in substance.
Lord Kingsland: My Lords, I humbly suggest to the Minister that it is not as simple as that. Clearly, any reference to glorification in Clause 21 automatically falls. If that is so, what is left in the clause is completely meaningless. It is nonsense. It would be quite wrong for the Bill to leave your Lordships' House on Report with a text that is nonsense. What else is in the Marshalled List? The amendment of the noble and learned Lord, Lord Lloyd of Berwick, would excise Clause 21 altogether.
Baroness Scotland of Asthal: My Lords, perhaps I can put the noble Lord out of his misery. I accept that, at this stage, this amendment, by virtue of the new structure introduced and the amendments passed by this House, is no longer in place. I accept this
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amendment, technically, for the time being. I am not saying that I accept the argument and that there is an alternative. There is a satisfactory alternative, but it is not for today.
Lord Kingsland: My Lords, will the Minister agree that it is in order for me to move this amendment formally? I am most grateful.
On Question, amendment agreed to.
The Deputy Speaker: My Lords, I call Amendment No. 71.
A noble Lord: It is pre-empted.
The Deputy Speaker: I am sorry, my Lords; we have so many pre-emptions.
Lord Kingsland: My Lords, the amendment is not moved.
The Deputy Speaker: It is not only not moved, my Lords, it is not allowed to be moved.
[Amendments Nos. 71 and 72 not moved.]
Lord Lloyd of Berwick had given notice of his intention to move Amendment No. 73:
The noble and learned Lord said: My Lords, in view of the Government's acceptance, even if only on a technical basis, of the amendment put forward by the noble Lord, Lord Kingsland, I withdraw my objection to the clause. It was never a technical objection, but now it does not arise.
Clause 23 [Extension of period of detention of terrorist suspects]:
Lord Cameron of Lochbroom moved Amendment No. 74:
The noble and learned Lord said: My Lords, I should like first to compliment the noble Baroness on her remarkable ability to utter words familiar to a Scotsman on Burns Night and to do so in the appropriate manner. Perhaps it is something to do with her name.
The amendment is concerned to ensure that, in Scotland, it is only the Lord Advocate or a procurator fiscal who may apply for a warrant extending detention, or for the extension of the period of such a warrant, and that the police in Scotland should no longer have the power to do so. Under Section 41 of the Terrorism Act 2000, the maximum period of detention is 14 days, and only a police officer of at least the rank of superintendent may make applications for extension of detention or for the extension of the period of such a detention. In Scotland, the applications are made to a sheriff.
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The Bill extends the period of detention to 28 days, and introduces a senior judge as the judicial authority where the period of detention is sought to be extended beyond 14 days. On any view, it would clearly be inappropriate that a police officer in Scotland should make any application to a senior judge. Indeed, I understood that to be recognised when the Government accepted my amendment in Committee, adding the Lord Advocate to the list which now appears in Clause 23(2), which sets out four separate individuals to whom power is granted to apply for a warrant extending detention, or for the extension of the period of the warrant.
The amendment's purpose is to ensure that proper recognition is given to the distinct framework of the criminal justice system in Scotland and the equally distinct responsibilities for criminal investigation between the Lord Advocate, as the prosecuting authority, and the police in Scotland. They are not identical to those which obtain in England, Wales or Northern Ireland.
I touched on those matters in amendments that I moved in Committee, when I reminded the Committee that the Lord Advocate is the head of the system of prosecution and investigation of crime in Scotland, and that he has statutory powers to instruct the police in the investigation and reporting of crime under Section 17 of the Police (Scotland) Act 1967 and Section 12 of the Criminal Procedure (Scotland) Act 1995. The Lord Advocate acts through Crown counsel and the High Court of Justiciary, the Supreme Court, and through procurators fiscal in the sheriff and lower courts.
The Bill gives some recognition to the different framework and responsibilities within which the criminal justice system in Scotland operates, as compared with the system elsewhere in the United Kingdom. The Bill, for instance, requires that for prosecutions elsewhere in the United Kingdom, consent should be given to the institution of proceedings by the Director of Public Prosecutions or the Attorney-General, as set out, as we heard very recently, in Clause 19. I mention in passing that it is perhaps an oddity that the effect of an amendment that was proposed in your Lordships' House earlier would have imposed certain matters of discretion on the Attorney-General only, and would not have had an effect on the Lord Advocate of Scotland.
The Minister explained in Committee on 7 December 2005 at cols. 735 and 736 that because of the structure of prosecutions in Scotland and the overall responsibility of the Lord Advocate for prosecutions, it was unnecessary to extend Clause 19 to include specific reference to the Lord Advocate. To take another example, in Clause 28, on search, seizure and forfeiture of terrorist publications and its application to Scotland, it is the procurator fiscal who makes the application for a warrant, not a constable as elsewhere in the United Kingdom. In Scotland the application is made to a sheriff, not to a justice of the peace, as elsewhere.
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When an amendment to the same effect was debated in Committee on 13 December 2005, I said in col. 1148 that I understood that even at present an application made under paragraph 29 of Schedule 8 to the Terrorism Act 2000, which provides for the applications for a warrant extending exemption, or for the extension of the period of such a warrant, was normally made to a sheriff by the procurator fiscal, with the assistance of senior police officers. Thus there would appear to be no difficulty in removing from the police in Scotland the capacity to seek a warrant extending detention, let alone further detention. It would also ensure—consistent with the general tenor of such legislation on the investigation and prosecution of serious offences, and which touches on the rights of individual citizens—that any application is made only after the Lord Advocate, or one of his officials responsible for the investigation and prosecution of crime in Scotland, has independently assessed the appropriateness of the grounds for making such an application.
I refer again to Clause 24(3) of the Bill, which sets out the reasons for the judicial authority to be satisfied that further detention is necessary before granting an application. It is arguable that those are the kind of reasons that should be considered by the applicant before he even goes before the judicial authority.
In reply, the Minister said that the amendment,
"would reverse the current arrangements under which police officers can apply for such extensions. We see no reason why we should reverse the existing situation or create an arrangement in Scotland which is different from that in the rest of the UK".—[Official Report, 13/12/05; col. 1149.]
I have already pointed out that in the present Bill there are arrangements that are different from the rest of the United Kingdom. Another example can be found in the provisions for all premises warrants for England and Wales and Northern Ireland in Clause 26, and for Scotland in Clause 27.
4.30 pm
The Minister did not in her reply answer the point that I had made about what I understood to be the normal practice in Scotland. If at present it is the normal practice that the procurator fiscal makes applications under paragraph 29 of Schedule 8 to the 2000 Act, there can be no substantial difficulty in reversing the existing situation in Scotland. I would be grateful if the Minister will answer two questions, of which I have already given her notice. First, was my understanding of the normal practice followed in Scotland correct? Secondly, have police officers in Scotland made such applications independently of a procurator fiscal and in what circumstances did that occur? If they have never done so, that would appear to support the view that the arrangements in Scotland could be amended without difficulty and without doing any violence to the operation of the current or proposed arrangements for warrants extending the period of detention of terrorist suspects.
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In her reply, at col. 150, the Minister also indicated that she would ensure that the Lord Advocate had the benefit of reading Hansard. I look forward to hearing why the Lord Advocate considers that my amendment would in any way be detrimental to the operation of the provisions of the 2000 Act or the new provisions for Scotland in the Bill if, in fact, he considers that to be the case. This being Burns Night, I hope that the Minister will be able to give this a fair wind. I beg to move.
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