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The noble Lord asked how a court will satisfy itself that it is not contrary to the interests of justice to give a live link direction. My reply is that the court will take
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There has been concern about defence representatives. Where the defence representative is at the magistrates' court, that lawyer will be able to communicate privately with the defendant using the video link in advance of the hearing. For such discussions the defendant will use a live link from a private interview room in the police station through which he will be able to see and hear his lawyer at the magistrates' court. The defendant will be alone for the duration of such discussions, thus preserving confidentiality.
We are moving forward with this scheme because so far it seems as though it has worked well. Of course we are watching it with extreme care. If there are any signs that it is not working well, we will look carefully to see what we should do about it. The safeguard for the defendant is that the tribunal has the right to say no to such a link. It also has the right to stop any link taking place if it is felt to be unjust. We therefore ask that Clause 93 stand part of the Bill.
Lord Thomas of Gresford: I hear what the Minister says. I have limited experience-but I have experience. What I think is not understood is the physical limitations for the use of live links. In a very busy Crown Court that I know of, which has some 17 courts operating, there are two rooms where it is possible to take instructions along the lines that the noble Lord has mentioned. Of course there is a queue. You have to wait. It is quite impossible to go back, as I said earlier, to take instructions as a case develops. That is just physically impossible. Although the equipment can work, sometimes it does not.
I am afraid that we are moving towards a situation where defendants are going to be even more packaged up and removed from the ambit of the courtroom where the judge can see and hear a real person. If this goes through, the judge will be able to sentence a person without his consent to a live link. He cannot ask him any genuine real questions by live link. He cannot appreciate the atmosphere in which the case is being advanced. We are approaching what used to be called a 1984 situation, with defendants popping up on a screen and being popped away without any physical contact with the court scene. I think that this is a retrograde step, but I will not oppose the matter any further.
Clause 100 : Powers in respect of offenders who assist investigations and prosecutions
185C: Clause 100, page 61, line 13, leave out "Enterprise and Regulatory Reform" and insert "Innovation and Skills"
Lord Tunnicliffe: These are purely technical amendments which do not affect the substance of the clause. Clause 100 extends to the Financial Services Authority and the Secretary of State for Business, Enterprise and Regulatory Reform the statutory powers in the Serious Organised Crime and Police Act 2005 for prosecutors to confer immunity from prosecution in respect of defendants who co-operate in the investigation and prosecution of others. There is also provision for defendants who turn Queen's evidence to receive a reduction in their sentence in return for their co-operation.
Following the machinery of government changes announced by the Prime Minister last month, it is necessary to replace the various references to the Secretary of State for Business, Enterprise and Regulatory Reform with references to the Secretary of State for Business, Innovation and Skills. Following Royal Assent it will be possible, in response to any future machinery of government changes affecting this clause, to amend this provision through a transfer of functions order. I beg to move.
Lord Henley: I am somewhat intrigued by these amendments, which we are told are minor and technical. In my experience, references to "the Secretary of State" in any legislation refer simply to "the Secretary of State" on the basis that "the Secretary of State" is a single legal entity. You then infer from the Act which Secretary of State it is. So, in my days in education, when we were passing education Bills, when the Bill said "the Secretary of State", that meant the Secretary of State for Education.
Later, under this Government, what was the Department of Education started changing its name with monotonous regularity. If we had put in the words "the Secretary of State for Education", every time a new education Bill came through, further drafting amendments would presumably have had to be made to a whole host of bits of legislation, suggesting that his or her name should be changed to whatever the Government had decided that that department should now be called.
This has happened in this case because the Government started by saying "the Secretary of State for Business, Enterprise and Regulatory Reform", which is a pretty silly title anyway, and now want to change it to the almost sillier title of "the Secretary of State for Business, Innovations and Skills". We understand that that also includes universities, but for some reason they did not want to add that to the title.
Anyway, on this occasion we are told that we will have the full title of the Secretary of State. Perhaps the Minister can assist me. It might be because, on this occasion, we have in Clause 100(3)(a),
Well, if he is acting personally, one might have gone further. Rather than giving his title, we could have used a whole raft of titles, such as "Lord Mandelson of Foy in the county of Herefordshire and of Hartlepool in the county of Durham, Lord President of the Council, Secretary of State, Deputy Prime Minister"-the whole lot. I honestly do not know.
Put simply, can the Minister tell us why we cannot have just "the Secretary of State", as we have always had in the past? When does the Minister expect to seek to amend the Bill further when the Prime Minister changes the title of that department again? Is this an appropriate way to go about things? If the Minister is going to suggest that the clause stays as it is, might this be one of those occasions where we have a new regulation-making power-it could even be negative; I would not even insist that it be affirmative-so that we could change the title as appropriate by means of negative instruments?
Lord Tunnicliffe: The noble Lord, Lord Henley, makes the case for spelling out which Secretary of State quite well. I believe-and I will write to the noble Lord if this is not correct-that it is essentially for the avoidance of doubt. Our amendments already pick up his suggestion. There will be no requirement for future changes to the Secretary of State's title in primary legislation. It will be covered in the transfer of functions order, as I said earlier. That will have the power to change the title in this case.
I, too, was curious about what "acting personally" means. My answer begins:
"There is no intention that the Secretary of State will actually use these powers himself",
which I thought was a great start. The powers will be used by an appropriately senior prosecutor within the department. Where a Secretary of State is ordinarily granted a power in legislation, unless otherwise specified this power may automatically be exercised on his behalf by a large number of officials within his department. We want to ensure that these powers can be delegated by the Secretary of State only to no more than two appropriately senior prosecutors within the department. That is the sole reason behind the use of the phrase "acting personally".
Lord Henley: This is complete nonsense. I suggest that the noble Lord takes the amendment away, goes back to his draftsmen and suggests to them that we go back just to "the Secretary of State". He is creating more confusion by specifying which Secretary of State, because it casts into doubt all the other statutes that refer simply to "the Secretary of State". I suggest that the Minister has another look at it and comes back with further amendments on Report that put us back on to the normal footing that we understand, on the basis that we all know who the Secretary of State is. We always find a means of understanding what any particular statute means.
Baroness Butler-Sloss: What does the Minister think a court might do with this? If the phrase is "acting personally", I do not see how you can delegate.
Lord Tunnicliffe: I have every faith in those who drafted these clauses. I am sure that when we come back and probably propose precisely the same clauses everybody will be convinced by the extensive arguments I shall field. However, I recognise the mood of the Committee and shall withdraw the amendment. I expect to retable the amendments on Report. I suspect that they will be the same, but we will be backed up both by more reasons for why it is necessary to name the Secretary of State and by a response to the question about how we believe a court might react. I beg leave to withdraw the amendment.
Amendments 185D and 185E not moved.
Clause 101 : Bail: risk of committing an offence causing injury
Amendment 186 had been withdrawn from the Marshalled List.
Amendments 186A to 186C not moved.
Clause 102 : Bail decisions in murder cases to be made by Crown Court judge
Amendments 186D to 186F not moved.
187: After Clause 103, insert the following new Clause-
"Independent Commissioner for Terrorist Suspects
(1) The Secretary of State shall appoint a person to be known as the Independent Commissioner for Terrorist Suspects (the "Commissioner") and such appointment shall be subject to the approval of the Lord Chief Justice, and shall be on such terms as to length of service and remuneration as the Secretary of State shall determine.
(2) The principal function of the Commissioner shall be to monitor the detention and treatment of terrorist suspects held under section 41 of and Schedule 8 to the Terrorism Act 2000 (c. 11) and in particular to give the judicial authority such independent assistance as it may require in deciding whether or not to extend the period of detention, and to perform such other related functions as the Secretary of State may determine.
(3) In order to fulfil his functions under this section, the Commissioner shall be entitled to visit Paddington Green Police Station, and any other place of detention where terrorist suspects are held, so as to ensure that the questioning of suspects is being carried out diligently and expeditiously, and in accordance with the provisions of Schedule 8 and PACE Code H.
(4) Such visits shall take place at the discretion of the Commissioner and may be unannounced.
(5) The custody officer shall inform the Commissioner within 24 hours of a terrorist suspect being detained.
(6) The police shall give the Commissioner such assistance as he may reasonably require so that he can fulfil his functions under this section.
(7) The Commissioner shall be entitled to interview terrorist suspects with their consent, and may require such interviews to take place in the absence of the police and he may also attend interviews, conducted by the police.
(8) The custody officer shall inform the Commissioner whenever the prosecution are to make an application for the extension of the period of detention and the Commissioner shall be entitled to be present at the hearing.
(9) The Commissioner shall make an annual report to Parliament as to the carrying out of his functions under this section."
Lord Lloyd of Berwick: The purpose of the amendment is to require the Secretary of State to appoint an independent commissioner for terrorist suspects. The commissioner would have two main functions. First, he would be able to monitor the detention and treatment of suspects detained under Section 41 of the Terrorism Act 2000. Secondly, he would act as the eyes and ears of the judge when the prosecution apply for an extension of time from seven days to 14 days and, ultimately, to 28 days under the provisions of Schedule 8.
Eight months ago, in November 2008, I moved an almost identical amendment to the Counter-Terrorism Bill. That amendment was supported by the noble and learned Lord, Lord Mayhew, whom I am glad to see in his place, the noble Viscount, Lord Colville of Culross, the noble Lord, Lord Dear, the noble Baroness, Lady Manningham-Buller, and many others, including the two opposition Front Benches. At the end of the debate, the noble Lord, Lord West, said that at first he had been minded to resist the amendment, but that, having listened to the debate, he would accept the amendment in substance, but needed more time to look at the wording. This Bill seemed to present a good opportunity to bring back the amendment before the Committee.
I will remind the Committee of the benefits that will flow from the amendment, if it finds favour. I can do so briefly, because we went into it at some length last year. There are two main benefits. The first is that it will bring reassurance to members of the Muslim community-a point made very strongly on the previous occasion by the noble Baroness, Lady Falkner of Margravine. It comes about in this way. When terrorist suspects are arrested, often in circumstances of great publicity, and then released without charge after 28 days or whatever period it may be, it causes much resentment. It is resented, naturally, by the suspect himself. However, it is also resented by the suspect's neighbours, and by the Muslim community at large. The presence of an independent commissioner at Paddington Green would do much to reassure the Muslim community, not just that the suspects are being well treated, as should surely go without saying, but also that the police are getting on with the investigation as quickly as they can. In other words, the community needs to be reassured that suspects are not being detained for a day longer than is absolutely necessary. The amendment that I am moving will be in accordance with recent government policy, which is to remove, so far as can be done, the causes of alienation among ethnic minorities. The
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The second benefit flowing from the amendment is less obvious, but is equally important in the interests of justice. As the Committee knows, suspects are detained in the first instance for seven days. An application can then be made before a judge to extend the period to 14 and ultimately 28 days. As things stand, the judge has nothing to go on except what he is told by the prosecution. It is true that the suspect's counsel may be present and can make submissions. However, neither the suspect himself nor his counsel will have access to the closed material; so counsel's submissions on the point of whether there should be an extension will be based necessarily and to a large extent on guesswork.
The advantage of having a commissioner is that, unlike counsel, he will have seen all the closed material in relation to all the suspects who are being investigated. He will be in a much better position than counsel to assist the judge by expressing an independent view on whether, for example, the police are getting on with the investigation as quickly as they should; or, to take another example, on whether the case against some of the suspects is so weak that they ought to be released at once. Since the commissioner will be present at the hearing of the application for an extension, he will be able to express his concerns to the judge and can be questioned by the judge about them. Of course, the prosecution will be able, so far as it can, to answer the concerns.
I remember well, when we were asked to extend the detention period to 42 days, that a great deal was made of the fact that it would be a judge who made the decision on whether to extend the time. That was to be the great safeguard; but that safeguard is illusory unless the judge has heard both sides of the argument. That is the object of the amendment.
There are only two arguments the other way. The first is a fear on the part of the police that it will hamper their investigation to have the commissioner present at Paddington Green. I do not understand their concern. The commissioner will be present during interviews at Paddington Green as an observer-nothing more. He will not stop the police conducting the investigation in any way that they may think appropriate. He will not stop them asking any questions that they want to ask. I hope that the Minister will explain why the police are so concerned, if indeed they are. The fear that the presence of the commissioner will hamper their investigation reminds me greatly of the fears that used to be expressed when it was first suggested that interviews should be recorded. Now the recording of interviews is seen as the most natural thing in the world: indeed, the police positively welcome it. The role of the commissioner being present at interviews will come to be seen in the same way.
The second objection is on the ground of cost. It is said that the cost of a single commissioner at Paddington Green will be £50,000 a year. Is that not a small price to pay for ensuring that the judge gets all the help that
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Lord Condon: As a former police commissioner, I support the amendment, but not without reservations. I see a number of practical problems relating to the disruption of the meticulously planned chronology of the questioning of terrorist suspects. However, I believe that, on balance, the greater good that may be achieved by the creation of the commissioner post far outweighs any potential problems. As the noble and learned Lord said in moving the amendment, the potential engendering of confidence in the wider community by means of these provisions is well worth while. I support the amendment.
Lord Elton: I am a complete amateur in this matter. I have just one question to ask the noble and learned Lord, Lord Lloyd of Berwick. Does he foresee a possibility that an assiduous commissioner might disagree with Her Majesty's Government on substantive points from time to time? If that were the case, would it not be better to give some security of tenure and describe the circumstances in which he might be required to relinquish his post?
Lord Lloyd of Berwick: I could certainly foresee the commissioner being appointed for, say, five years. I should have thought that that would give him sufficient security.
Lord Mayhew of Twysden: I assure the Minister who is about to reply that my support for this proposal has not diminished in any way since I expressed it when we went into all this last November. As regards the police objection that their investigations would be hampered if the commissioner was present in police stations, exactly that misgiving was expressed when I had some responsibility for Northern Ireland and I introduced a system, staffed in the first instance by Sir Louis Blom-Cooper QC, whereby a commissioner was present when the police questioned a suspect. In a very short time, Sir Louis Blom-Cooper secured the support of all concerned with this procedure, including the police. I very much endorse what was said in that regard by the noble and learned Lord, Lord Lloyd of Berwick, a few minutes ago.
There is a necessary but inherent weakness in the procedure for the extension of detention from seven to 14 and ultimately to 28 days. It is a necessary weakness but it can be addressed by having a commissioner present and informed in the way in which the noble and learned Lord has described. It is not easy for a judge to determine whether the case for an extension has been made, particularly where the defence counsel is not able to see the strength of a case against him. Judges in this rather unwelcome position need all the support that they can get. I believe that that is provided to a significant extent by the terms of the proposed new clause.
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