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Alton of Liverpool, L.
Anelay of St Johns, B.
Armstrong of Ilminster, L.
Attlee, E.
Barker, B.
Bates, L.
Bonham-Carter of Yarnbury, B.
Bridgeman, V.
Bridges, L.
Brookeborough, V.
Brougham and Vaux, L.
Burnett, L.
Buscombe, B.
Byford, B.
Cameron of Dillington, L.
Cathcart, E.
Cavendish of Furness, L.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Cope of Berkeley, L.
Craigavon, V.
Crickhowell, L.
De Mauley, L.
Dear, L.
Denham, L.
D'Souza, B.
Dundee, E.
Dykes, L.
Eccles, V.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Fraser of Carmyllie, L.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
Glentoran, L.
Greaves, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Henley, L.


4 Nov 2008 : Column 181

Higgins, L.
Hogg, B.
Hooper, B.
Howe, E.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
James of Blackheath, L.
Jenkin of Roding, L.
Kennedy of The Shaws, B.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Krebs, L.
Laird, L.
Lawson of Blaby, L.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L. [Teller]
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Mackie of Benshie, L.
Mar and Kellie, E.
Marland, L.
Marlesford, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Murphy, B.
Naseby, L.
Neuberger, B.
Neville-Jones, B.
Newton of Braintree, L.
Northbourne, L.
Northbrook, L.
Northesk, E.
Norton of Louth, L.
O'Cathain, B.
Onslow, E.
Palmer, L.
Patel, L.
Patten, L.
Pilkington of Oxenford, L.
Razzall, L.
Reay, L.
Rees of Ludlow, L.
Roberts of Llandudno, L.
Rogan, L.
Ryder of Wensum, L.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selsdon, L.
Sharples, B.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Steinberg, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tyler, L.
Verma, B.
Waddington, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Warsi, B.
Watson of Richmond, L.
Wright of Richmond, L.

NOT CONTENTS

Adams of Craigielea, B.
Adonis, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bernstein of Craigweil, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Cameron of Lochbroom, L.
Campbell-Savours, L.
Carter of Barnes, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Cox, B.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Donoughue, L.
Drayson, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Gilbert, L.
Goldsmith, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L.
Hart of Chilton, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Ewelme, L.


4 Nov 2008 : Column 182

Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kerr of Kinlochard, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Manningham-Buller, B.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Myners, L.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Bradford, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Slim, V.
Slynn of Hadley, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Soley, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
6.56 pm

The Deputy Speaker: My Lords, there being an equality of votes, in accordance with Standing Order 57, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such an amendment, I declare the amendment disagreed to.

Resolved in the negative, and Amendment No. 7, as an amendment to Amendment No. 6, disagreed to accordingly.

[Amendment No. 8, as an amendment to Amendment No. 6, not moved.]

On Question, Amendment No. 6 agreed to.

[Amendments Nos. 9 to 14 not moved.]

Clause 24 [Post-charge questioning: Scotland]:

The Deputy Speaker (Lord Geddes): My Lords, I should remind the House that if Amendment No. 15 is agreed to, I will not be able to call Amendments Nos. 18 to 20 inclusive due to pre-emption.

Lord West of Spithead moved Amendment No. 15:

15: Clause 24, page 17, line 45, leave out subsections (2) to (6) and insert—

“( ) On the application of the prosecutor, a sheriff may authorise the questioning of a person about an offence—

(a) after the person has been charged with the offence, or

(b) after the person has appeared on petition in respect of the offence,

if the offence is a terrorism offence or it appears to the sheriff that the offence has a terrorist connection.

( ) The sheriff—

(a) must specify the period during which questioning is authorised, and



4 Nov 2008 : Column 183

(b) may impose such conditions as appear to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out.

( ) The period during which questioning is authorised—

(a) begins when questioning pursuant to the authorisation begins and runs continuously from that time (whether or not questioning continues), and

(b) must not exceed 48 hours.

This is without prejudice to any application for a further authorisation under this section.

( ) Where the person is in prison or otherwise lawfully detained, the sheriff may authorise the person’s removal to another place and detention there for the purpose of being questioned.

( ) A sheriff must not authorise the questioning of a person under this section unless satisfied—

(a) that further questioning of the person is necessary in the interests of justice,

(b) that the investigation for the purposes of which the further questioning is proposed is being conducted diligently and expeditiously, and

(c) that what is authorised will not interfere unduly with the preparation of the person’s defence to the charge in question or any other criminal charge.”

On Question, amendment agreed to.

[Amendments Nos. 16 and 17, as amendments to Amendment No. 15, not moved.]

[Amendments Nos. 18 to 20 not moved.]

Lord West of Spithead moved Amendments Nos. 21 and 22:

21: Clause 24, page 18, line 24, leave out “subsection (2) or (3)” and insert “this section”

22: Clause 24, page 18, line 25, at end insert “(or had appeared on petition)”

On Question, amendments agreed to.

7 pm

Lord Wallace of Tankerness moved Amendment No. 23:

23: Clause 24, page 18, line 25, at end insert—

“( ) The Lord Advocate shall publish guidelines about the questioning of a person by a constable in accordance with this section.”

The noble Lord said: My Lords, the amendment intends that the Lord Advocate should publish guidelines about the questioning of a person by a constable in accordance with the clause. In the previous debate, the noble Baroness, Lady Neville-Jones, referred to the draft code issued last week under the Police and Criminal Evidence Act, and how she very much regretted its vagueness and lack of definition compared with the previous code. In England and Wales, however, at least there is a code that proceeds on a statutory basis. In Scotland, not only have we not seen any draft protocol or guidelines; there is no statutory basis for such guidelines to be issued.

This issue was raised in Committee and the noble and learned Lord, Lord Boyd of Duncansby, a former Lord Advocate, indicated that he wanted the Lord Advocate to issue a protocol or guidelines. In his letter, the noble Lord, Lord West, indicated that the Lord Advocate has confirmed that she intends to issue guidelines on post-charge questioning

4 Nov 2008 : Column 184

in the same way as for the detention, treatment and questioning of persons arrested under Section 41 of the Terrorism Act.

I welcome the fact that such guidelines are to be issued, but noble Lords will recognise that there is a world of difference between the statutory provisions that safeguard the way in which post-charge questioning takes place in England and Wales and the promise by the Lord Advocate to issue guidelines in Scotland. The amendment seeks to put this on a statutory footing. I have not yet been given a good reason why there should be a difference between how post-charge questioning provisions are implemented in Scotland and how they are implemented in England and Wales. I do not think that I need to elaborate further on this. Good intentions are fine and welcome, but I have not yet had a good explanation of why the provisions cannot proceed on a statutory basis, as is the case in the parts of the Bill dealing with England and Wales and Northern Ireland. I beg to move.

Lord West of Spithead: My Lords, as the noble Lord, Lord Wallace, has said, and as I made clear in Committee, the Lord Advocate has confirmed that she intends to issue guidelines on post-charge questioning and that they will be similar to those that the Lord Advocate issued on detention, treatment and questioning of persons arrested under Section 41 of the Terrorism Act 2000. These were issued despite there being no statutory requirement to do so.

We have made a legislative requirement that codes of practice must make provision regarding post-charge questioning in England and Wales and Northern Ireland because in these jurisdictions codes of practice are a statutory requirement—for example, in England and Wales, under Section 66 of the Police and Criminal Evidence Act 1984. As for why that should not be the case in Scotland, the answer is that Scotland is different. It is not the case in Scotland, and it is a matter for the Lord Advocate to determine whether it is appropriate or necessary to issue guidelines. We therefore do not believe that a statutory requirement would be helpful or appropriate, and the Lord Advocate supports us in this view.

Lord Wallace of Tankerness: My Lords, I hear the argument that Scotland is different, and it can be a compelling argument. Will the Minister undertake to ensure that when the Lord Advocate issues these guidelines, a copy will be placed in the Library of the House?

Lord West of Spithead: My Lords, I would be happy to do that. I shall have to check with the Lord Advocate, but I cannot see any difficulty whatever in doing so. Assuming that she has no issue with that, and I cannot see that she would, I will certainly agree to do it. On the basis of there being a difference, as we know there is, and that she will be issuing guidelines, I ask the noble Lord to withdraw the amendment.

Lord Wallace of Tankerness: My Lords, it is always worthwhile to challenge and test these matters. When legislation is making provision for all parts of the

4 Nov 2008 : Column 185

United Kingdom, we should ensure that at least some equivalence of protection is given to those affected by it. I hear and accept what the Minister has said. Given his willingness in principle, subject to consultation with the Lord Advocate, to place the guidelines in the Library of the House, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 [Post-charge questioning: Northern Ireland]:

Lord West of Spithead moved Amendment No. 24:

24: Clause 25, page 18, line 29, leave out subsections (2) to (4) and insert—

“( ) A district judge (magistrates’ courts) may authorise the questioning of a person about an offence—

(a) after the person has been charged with the offence or been officially informed that they may be prosecuted for it, or

(b) after the person has been committed for trial for the offence,

if the offence is a terrorism offence.

( ) The judge—

(a) must specify the period during which questioning is authorised, and

(b) may impose such conditions as appear to the judge to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out.

( ) The period during which questioning is authorised—

(a) begins when questioning pursuant to the authorisation begins and runs continuously from that time (whether or not questioning continues), and

(b) must not exceed 48 hours.

This is without prejudice to any application for a further authorisation under this section.

( ) Where the person is in prison or otherwise lawfully detained, the judge may authorise the person’s removal to another place and detention there for the purpose of being questioned.

( ) A district judge (magistrates’ courts) must not authorise the questioning of a person under this section unless satisfied—

(a) that further questioning of the person is necessary in the interests of justice,

(b) that the investigation for the purposes of which the further questioning is proposed is being conducted diligently and expeditiously, and

(c) that what is authorised will not interfere unduly with the preparation of the person’s defence to the charge in question or any other criminal charge.”

On Question, amendment agreed to.

[Amendments Nos. 25 and 26 not moved.]

Clause 26 [Recording of interviews]:

Lord West of Spithead moved Amendment No. 27:

27: Clause 26, page 19, leave out line 30

The noble Lord said: My Lords, the House will recall that the Bill included an order-making power which allowed the Secretary of State to disapply the compulsory requirement for post-charge questioning to be video recorded with sound, which caused some amusement at the time. The power had been included because there are police stations in some parts of the United Kingdom which do not have the facility to

4 Nov 2008 : Column 186

video record interviews with sound. The inclusion of this order-making power raised concerns at the previous stage and the Government concede that that power should be removed. That is the effect of the amendment.

All post-charge questioning under these provisions will now be video recorded with sound in all parts of the United Kingdom. The effect of the amendment will be to prevent post-charge questioning in certain police stations until the necessary facilities are available. We do not anticipate that this will be a significant problem as a suspect could be transferred for questioning to a police station which does have the facilities, and in time these facilities will be available in other police stations. I beg to move.

Baroness Neville-Jones: My Lords, I welcome what the Minister has just said. Is there a programme to equip the police stations where the facilities are not available? It would be a good idea to avoid having to shift people around because the necessary facilities are not on the spot.

Lord West of Spithead: My Lords, I do not know the exact answer. Perhaps I may get back to the noble Baroness in writing on the issue.

On Question, amendment agreed to.

[Amendments Nos. 28 and 29 not moved.]

Lord West of Spithead moved Amendments Nos. 30 and 31:

30: Clause 26, page 19, line 37, leave out “An order or” and insert “A”

31: Clause 26, page 19, line 42, leave out subsection (6)

On Question, amendments agreed to.

Clause 28 [Meaning of “terrorism offence”]:

[Amendment No. 32 not moved.]

Clause 29 [Jurisdiction to try offences committed in the UK]:

Lord Wallace of Tankerness moved Amendment No. 33:

33: Clause 29, page 21, line 24, after “may” insert “, with the written consent of the relevant law officer,”

The noble Lord said: My Lords, we now move to Part 3 of the Bill. The amendments relate to the clause which allows that where an offence to which the section applies is committed in the United Kingdom, proceedings for the offence may be taken at any place in the United Kingdom and the offence may, for all incidental purposes, be treated as having been committed at any such place. The clause then indicates the offences which would be covered by this, with provision as to how the offences might be amended.

Nothing in the Bill indicates the criteria or procedure which might be followed to establish that a particular place in the United Kingdom will be where the proceedings take place. The amendments do not seek to set down criteria. I can foresee possible difficulties if criteria were established, as they would no doubt create a breeding ground where lawyers could pour over them to find ways in which certain criteria had not been

4 Nov 2008 : Column 187

met. However, we should perhaps at the very least expect a formal basis of agreement between the prosecuting authorities in two distinctive jurisdictions; otherwise there could be confusion and challenge.

When the Lord Advocate appeared before the Public Bill Committee in the other place, and when I raised this matter with the Minister in Committee, the response was that the present Lord Advocate wishes this and that she thinks that everything will work fine and that she and the Attorney-General get on well. I have never thought of that as a sound basis for a constitutional legal framework. I have no doubt that the Attorney-General and the Lord Advocate get on well, but it is not impossible that future holders of the two respective offices might not get on so well. Some formal recognition that a transfer of jurisdiction has taken place would at least ensure some certainty in the proceedings.


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