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Counter-Terrorism Bill

Volume 477: debated on Tuesday 10 June 2008

As amended in the Public Bill Committee, considered.

[1st Allotted Day]

[Relevant documents: The Second Report from the Joint Committee on Human Rights, on Counter-Terrorism Policy and Human Rights: 42 days, HC 156, the Ninth Report from the Committee, on Counter-Terrorism Policy and Human Rights: Counter-Terrorism Bill, HC 199, and the Government Response, Cm. 7344, the Tenth Report from the Committee, on Counter-Terrorism Policy and Human Rights: Annual Renewal of Control Orders Legislation 2008, HC 356, the Twentieth Report from the Committee, on Counter-Terrorism Policy and Human Rights: Counter-Terrorism Bill, HC 554, and the Twenty-first Report from the Committee, on Counter- Terrorism Policy and Human Rights: 42 Days and Public Emergencies, HC 635. ]

New Clause 18

Recording of interviews

‘(1) This section applies to any interview of a person by a constable under section 24, 25 or 26 (post-charge questioning).

(2) Except as provided by order of the Secretary of State—

(a) any such interview must be video recorded, and

(b) the video recording must be with sound.

(3) The Secretary of State must issue a code of practice about the video recording of interviews to which this section applies.

(4) The interview and video recording must be conducted in accordance with that code of practice.

(5) An order or code of practice under this section—

(a) may make provision in relation to a particular part of the United Kingdom, and

(b) may make different provision for different parts of the United Kingdom.

(6) Any order under this section is subject to affirmative resolution procedure.’.—[Mr. McNulty.]

Brought up, and read the First time.

With this it will be convenient to discuss the following: Government new clause 19—Issue and revision of code of practice.

New clause 4—Post-charge questioning: safeguards

‘(1) Reference in this section to “post-charge questioning” relate only to post-charge questioning for a terrorism offence, in accordance with section 27—

(a) in England and Wales, in accordance with section 24;

(b) in Scotland, in accordance with section 25; and

(c) in Northern Ireland, in accordance with section 26.

(2) Post-charge questioning must be judicially authorised in advance.

(3) Post-charge questioning shall be confined to questioning about new evidence which has come to light since the accused person was charged and which could not reasonable have come to light before.

(4) The total period of post-charge questioning shall last for no more than five days in aggregate.

(5) Post-charge questioning may only take place in the presence of the defendant’s lawyer.

(6) Post-charge questioning shall always be video-recorded.

(7) The judge who authorised post-charge questioning shall review the transcript of the questioning after it has taken place, to ensure that it remained within the scope of questioning under subsection (3) and was completed within the time allowed under subsection (4).

(8) Post-charge questioning for a terrorism offence shall never be permissible after the beginning of the defendant’s trial for that offence.’.

Government amendment No. 57.

Amendment No. 16, page 17, line 12, clause 24, at end insert—

‘(3A) Subject to subsections (3B) to (3E) a constable may question a person about a related terrorism offence where the person has already been charged with, or been officially informed that they may be prosecuted for, a terrorism offence.

(3B) A police officer of at least the rank of superintendent may make an application to a judge of the Crown Court for permission to allow a constable to question a person under subsection (2), if the police officer reasonably believes that the person may be charged with a related terrorism offence.

(3C) A judge may grant permission for further questioning under subsection (2) only if satisfied by evidence that:

(a) there are reasonable grounds for believing that the original charge was appropriate to bring; and

(b) it is in the interests of justice to allow further questioning in the circumstances.

(3D) Where a judge grants permission for further questioning under subsection (2C) he shall make such directions as he considers appropriate with regard to:

(a) the maximum permitted period for further questioning;

(b) the total length of time over which further questioning is permitted; or

(c) any other directions as required in the interests of justice.

(3E) A “related terrorism offence” means a terrorism offence arising in whole or in part from the same set of facts as the offence with which the person has already been charged, or officially informed that they may be prosecuted.’.

Amendment No. 15, page 17, line 40, clause 25, at end insert—

‘(3A) A police officer of at least the rank of superintendent may make an application to a judge of the High Court for permission to allow a constable to question a person under subsections (2) and (3) above if the police officer believes that the person may be charged with a related terrorism offence.

(3B) A judge may grant permission for further questioning under subsection (2) and (3) only if he is satisfied by evidence that—

(a) there are reasonable grounds for believing that the original charge was appropriate to bring;

(b) it is in the interests of justice to allow further questioning in the circumstances; and

(c) that further questioning would not be oppressive.

(3C) Where a judge grants permission for further questioning under subsection (3B) he shall make such directions as he considers appropriate with regard to—

(a) the maximum permitted period for further questioning;

(b) the total length of time over which further questioning is permitted; or

(c) any other directions in the interests of justice,

and these directions shall be subject to variation on application by either party to the same court.

(3D) A “related terrorism offence” means a terrorism offence arising in whole or in part from the same set of facts as the offence with which the person has already been charged, or officially informed that they may be prosecuted.’.

Government amendments Nos. 58 and 59.

Amendment No. 14, page 61, line 18, clause 92, at end insert ‘, subject to subsection (7).’.

Amendment No. 45, page 61, line 18,  at end insert ‘subject to subsections (7) and (8)’.

Amendment No. 13, page 61, line 21, at end add—

‘(7) Section 24 (post-charge questioning: England and Wales) shall not come into effect until the codes of practice under section 66 of the Police and Criminal Evidence Act 1984 (c. 60) and referred to in section 24(4) shall have been agreed by a resolution of each House of Parliament.’.

Amendment No. 46, in page 61, line 21, clause 92, at end add—

‘(7) Section 22 (period of pre-charge detention) and Schedule 2 (amendments relating to a period of pre-charge detention) shall not come into effect until the codes of practice under section 66 of the Police and Criminal Evidence Act 1984 regulating such detention shall have been approved by a resolution of each House of Parliament.

(8) Section 24 (period of post-charge questioning) shall not come into effect until the codes of practice under section 66 of the Police and Criminal Evidence Act 1984 and referred to in section 24(4) shall be approved by a resolution of each House of Parliament.’.

I begin by reminding hon. Members that some further documents should be read alongside this group of amendments and new clauses. I made it clear in Committee that, were I in a position to do so, I would produce draft PACE—Police and Criminal Evidence Act 1984—codes for post-charge questioning. We have done so and I am assured that they are available in the Library, if not the Vote Office. For the sake of completeness, I agreed that with regard to clause 1 on the “Power to remove documents for examination”, I would introduce draft amendments to code B of PACE. We have done that, and they are also available. Finally, there were draft rules of court relating to the asset-freezing provisions. I said that I would introduce draft rules of court relating to asset-freezing, and they are also available. That is important, not least because, although there has been widespread support for the introduction of post-charge questioning for the offence charged in terrorism cases, people have rightly been concerned that safeguards should be put in place to protect the rights of those subject to questioning. I said in Committee that I had previously considered it better to leave the safeguards to the PACE codes, which is the normal practice in such circumstances. However, on reflection, I have decided that some safeguards should be included in the Bill, as hon. Members can see from our amendments.

Government new clauses 18 and 19 introduce a compulsory requirement for post-charge questioning to be video recorded. We believe that video recording of all interviews will guard against accusations that the questioning of the suspect was oppressive, although there are some areas, for example in Scotland, where facilities for video recording with sound are not yet available. I know that this is clumsy, but there is therefore a power for the Secretary of State to disapply the compulsory requirement in Scotland by means of an affirmative order.

I welcome the requirement that the right hon. Gentleman has just outlined and it would be a good precedent for establishing the same for other forms of questioning. Video recording should be extended throughout questioning under the PACE rules.

I do not doubt that that is an absolutely fair point, but it is not relevant to our deliberations. However, I am sure that the right hon. and learned Gentleman will pursue the matter elsewhere.

Government amendments Nos. 57, 58 and 59 mean that post-charge questioning for terrorism suspects could be authorised for up to 24 hours, in the first instance by an officer of the rank of superintendent, and that any subsequent questioning would require authorisation by a justice of the peace. The justice of the peace could authorise detention for post-charge questioning for a maximum period of up to five days if they believed that such questioning was in the interests of justice and that the police were conducting their investigation diligently and expeditiously. Further periods of detention for questioning would require a further application to a justice of the peace.

I have also prepared an initial draft of PACE code H, which will apply in the post-charge questioning of terrorism suspects, and that includes further safeguards. In particular, those PACE safeguards will include a right to legal representation during all questioning, will require the authorisation of post-charge questioning by an officer of the rank of at least superintendent in conjunction with the prosecutor, and will limit the circumstances in which the questioning could proceed. Our amendments, when considered in conjunction with the amendments to PACE code H, will provide sufficient safeguards for suspects subject to post-charge questioning.

I would like now to comment on the amendments and the new clause tabled by others, which all call for authorisation by a judge. That would be inappropriate, as it would create a significant and unnecessary burden. Authorisation by a High Court judge could require extensive work by the police and the prosecutors to prepare the case for judicial authorisation. Furthermore, as the Director of Public Prosecutions told the Committee,

“judicial oversight…could significantly slow down the process.”––[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 45, Q118.]

Amendments Nos. 15 and 16 would require a judge to accept that

“there are reasonable grounds for believing the original charge was appropriate”.

That could lead to lengthy proceedings, which could be tantamount to the trial for the offence. Authorisation by a judge would also be a costly use of the court’s time.

New clause 4 would prevent post-charge questioning before the commencement of trial. The Government do not believe that the Bill should make express provision for that, as there may be situations when questioning close to the trial is unavoidable, such as to prevent the person from causing injury to others or if a retrial were to occur. In such cases, every effort would be made to discuss the issue with the suspect, or his or her legal representatives, in order to minimise disruption to the court process. Guidance on that is covered in the draft codes of practice, which make it clear that police and prosecutors should seek to avoid post-charge questioning that may limit or restrict the ability of the person, or his or her defence, to prepare adequately for court proceedings.

New clause 4 would require the presence of the defendant’s lawyer before questioning could take place. The Government accept that all those subject to post-charge questioning should have access to legal representation. Indeed, we have made explicit provision for that in the draft codes of practice. However, we are concerned that new clause 4 would allow the suspect to veto questioning, as they could simply refuse to allow a lawyer to represent their interests.

New clause 4 confines the questioning to new evidence that has become available since the accused person was charged. We believe that it would not be appropriate or practical to confine post-charge questioning to new evidence that has become available only following charge.

The Minister will know that we registered some anxiety in Committee over the question of whether such questioning should be confined to new evidence. Another issue was whether the Government are right that re-interviewing can always take place when a separate charge is being considered. The Minister will know that there have been mixed views about that, so will he comment further?

If the hon. and learned Gentleman will bear with me, I will come to that shortly.

As I was saying, we think that confining post-charge questioning to new evidence could make all post-charge questioning subject to challenge on the basis of whether the evidence was available at charge. We also consider that there may be circumstances in which it would be appropriate to question the suspect about evidence available pre-charge—for example, analysis of evidence collected after charge could cast a new light on evidence that was available pre-charge. This is a dynamic process, as people will know.

Amendments Nos. 15 and 16 would allow questioning after charge for offences other than the offence for which an individual has been charged—namely, a “related terrorism offence”. The Government believe—and the matter has already been alluded to—that this is already possible. If, for example, the police charge a suspect with a lesser terrorism offence and further evidence becomes available that a more serious offence was committed as part of the conduct in question, the police could re-caution the suspect—or re-arrest them if on bail—and interview them about the more serious offence.

We believe that judicial review of the transcripts of post-charge questioning is also unnecessary, as the trial judge could refuse to allow prosecution evidence if it was believed that it had been obtained by unfair questioning, including confessions obtained through the oppression of the suspect. It is also unclear what actions a judge reviewing a transcript would undertake, should discrepancies be found.

Finally, amendments Nos. 13, 14, 45 and 46 would require codes of practice for post-charge questioning and pre-charge detention before the Bill could come into effect. It is already the case that codes of practice must be issued for post-charge questioning; as I have said, draft codes have already been circulated. Pre-charge detention provisions will only require minor amendments to PACE codes. Although these will be done before anyone is detained pursuant to these provisions, having a statutory requirement for those codes to be issued and approved by Parliament before commencement is, we think, unnecessary, so I ask Members not to press any of these four amendments.

For the reasons I have outlined, I commend Government amendments Nos. 57, 58 and 59, as well as Government new clauses 18 and 19, to the House. In doing so, I accept, as I acknowledged in Committee, that these are sensitive matters and that post-charge questioning is not a simple panacea. I also accept that a whole range of models of post-charge questioning are proffered by various experts.

The Minister will know of the particular sensitivity about how this provision will apply to the Scottish legal system. He will be aware that it is a principle of Scottish common law that when someone is arrested and charged, they become the ward of the court and it is crucial that nothing is done to prejudice their trial. Does he accept that there are issues, perhaps difficulties, with how post-charge questioning will apply to Scottish common law?

I do, just as there are in the broader sense of the common-law base. That is what we are trying to get around. I genuinely believe that we have reached a place where post-charge questioning could work. It is a shift—a concession, in a sense—on my part from saying that it could all be done through PACE 2 to having some safeguards built into the Bill. I genuinely think that we have got the balance about right, notwithstanding what the hon. Gentleman says about Scottish common law. I commend the amending provisions to the House.

On a point of order, Mr. Deputy Speaker. The Minister said that the draft PACE codes were freely available. I have been to check at the Vote Office and found that they are not available.

That is not a matter for the Chair, and I am sure that any omission will be put right as soon as possible.

Further to that point of order, Mr Deputy Speaker. I had finished my speech and sat down, but I want to point out that I thought that I had made it clear that the documents were in the Library, not the Vote Office.

I thank the Minister for listening to some of the representations made in Committee on post-charge questioning. Although I shall have to disagree with him in a little while on one matter, I want to make it clear that I am the first to acknowledge that the Government did listen and that new clauses 18 and 19 reflect that. I go further and am prepared to acknowledge that Government amendments Nos. 57 to 59 also attempt to reflect some of the concerns raised in Committee about the process.

It is almost universally agreed on both sides of the House that post-charge questioning is desirable in terrorist cases. That said, there has perhaps always been a slight tendency to see it almost as a panacea that can simply be wafted in without much further consideration. Plainly that is not the case, as the Minister acknowledged in Committee.

First, as I have always accepted, post-charge questioning will not necessarily deliver all sorts of remarkable results. Secondly, when a person has been charged, one cannot simply ignore the fact that that point in the criminal justice process has been reached. Within a few hours, or overnight, the person is likely to be brought before a magistrates court. Under the fast-track procedure on committal that this country now has, the person is usually also in the Crown court within a very short period.

The measure envisages the possibility of a person being interviewed, or re-interviewed, right up to the moment when the trial process begins. In those circumstances, it is perfectly obvious that injustice could take place, and that the process could also be oppressive. As the Minister acknowledged in Committee, were any of those things to take place, at worse the trial process might be vitiated as unfair, in which case we would not get a true verdict and someone might escape prosecution, or it might result in the end of the prosecution process altogether. It is therefore in everybody’s interests that we succeed in getting things right.

In new clauses 18 and 19, the Government have done exactly the right thing in respect of video recordings and the PACE codes. I greatly welcome that, and we will support them. But the Opposition continue to have a difficulty over whether judicial authorisation should take place. The Minister thinks that judicial authorisation or scrutiny would be ponderous. My feeling is that it need not be ponderous at all. If he will consider our amendments Nos. 16 and 15, he will note that we have moved the process from the High Court, as we discussed in Committee, to the Crown court. In all probability, much of the questioning will take place when the defendant is already before the Crown court, and the Crown court judge, who might eventually do the trial or whatever it might be, will already be seized of the matter.

Making an application to the court ought not to be a complicated matter; it is a matter of someone attending a Crown court for a couple of hours on a weekday morning for the sorts of applications that take place routinely in criminal justice proceedings. In most cases, I am absolutely confident that the judge, having considered and had the reasons for a further interview being required explained to him, would have absolutely no difficulty in giving the authorisation. Such a process would provide for a level of scrutiny, whereas the Government’s proposals, to which I shall return, seem not to do so. Slightly more bizarrely, the Government have made a move in our direction about providing a measure of judicial scrutiny, but in a way, as I shall try to illustrate in a moment, that will not really make any difference.

May I explore my hon. and learned Friend’s thinking on this matter? Is he suggesting that the application should be ex parte or inter partes?

The application should be inter partes, but an inter partes hearing in front of a Crown court judge need not take up an enormous amount of court time. All that needs to be done is for the prosecution to indicate to the defence that it wishes to re-interview and that it has the grounds to fulfil the necessary criteria. It is possible, of course, that the defendant will consent to being re-interviewed. If he consents with his lawyers present, I do not see why the interview should not proceed without an application, but if there is an argument over it, presumably the matter could be put before a Crown Court judge, who could reach a decision after considering the circumstances. He could also exercise a watching brief, so that if a problem arose, an application might again be possible.

Surely the procedure would be complicated and difficult only if there were a large number of such cases. Given that such cases will be unusual, the procedure surely does exactly what my hon. and learned Friend wants: it ensures that there is a little halt while people decide whether it is sensible to re-interview someone. Will he press the Government to tell us how often they think the procedure is likely to be used?

I am happy to press the Minister to answer that question, but I think that I can almost give my right hon. Friend the answer now. In Committee, we discussed the number of times that the problem was likely to arise. We need only consider the number of terrorist cases. Mercifully, we are not so burdened with those at present that such circumstances are not unusual, and I do not believe that they will arise very often.

The other reason why I think the circumstances will not arise very often—and it is one of the reasons why I consider Government amendment No. 57 to be deficient—is that people who have been detained for a long time without charge have not necessarily been questioned for very long. Amendment No. 57 would allow a person to be questioned for 24 hours, although obviously not continuously, on the authority of a senior police officer. Only after that would it be necessary to obtain permission from a magistrate to continue the questioning for another five days. It is at that point that I begin to feel that the Government are not really addressing the issue.

We know that there have been two instances in which a person has been detained for up to 28 days and subsequently charged. As it happens, I have the figures before me showing the amount of time in those 28 days for which those people were actually questioned. One was questioned for 13 hours and 29 minutes in all, while the other was questioned for 14 hours and 34 minutes. In one case, the longest interview lasted for one hour and 58 minutes, and in the other it lasted for one hour and 37 minutes.

After the 14th day of detention, one defendant was not interviewed on 14 days in the subsequent 14-day period, and the other was not interviewed on 11 days. The figures break down as follows: in the case of one, 38 minutes on day 19, 14 minutes on day 20, one hour and 11 minutes on day 26, and 15 minutes on day 27; in the case of the other, 54 minutes on day 19, one hour and 58 minutes on day 20, and one hour and 17 minutes on day 26.

Quite apart from illustrating the fact that interviewing is probably not the central aspect of the problem of investigating offences, those figures emphasise that if amendment No. 57 were passed, the chances are that it would have no impact whatever on the present position, because the chances of someone being interviewed for 24 hours post-charge are so negligible that they can be entirely ignored. If we are to allow post-charge questioning with some supervision, which the Minister has begun to concede in certain cases, we may as well grasp the nettle and say that it should apply in all post-charge cases. That would obtain whether the Minister were minded to adopt our amendment No. 15 or new clause 4.

I share the hon. and learned Gentleman’s view that the Government have moved in the right direction following the discussions in Committee. There is one further anxiety that he has not yet mentioned, however. He said, inadvertently I think, that his judicial supervision would test whether the questioning was required. I see a distinction between what the Government amendment says and his amendment. The Government amendment says

“that further questioning of the person is necessary in the interests of justice”,

and it is important that the interests of justice are included here. His amendment says, however, that

“it is in the interests of justice to allow further questioning in the circumstances.”

That is an important distinction, and I support his formulation rather than the Government’s because his words state that all circumstances should be taken into account by whatever level of judicial supervision to ensure that the interests of justice, rather than the necessity to pursue an investigation, are served.

I am grateful to the hon. Gentleman, and I agree. Although I am sure that there are different ways of approaching this—and I am always conscious when proposing an Opposition amendment that it will often be easy to find flaws in it as it will have been drafted without having all the benefits provided by civil servants—I would be grateful if the Minister could respond to amendment No. 16, because it seems to me to set out a perfectly sensible and rational way of proceeding. It says:

“A police officer of at least the rank of superintendent may make an application to a judge of the Crown Court…A judge may grant permission…if satisfied by evidence that:

(a) there are reasonable grounds for believing that the original charge was appropriate to bring; and

(b) it is in the interests of justice to allow further questioning in the circumstances”

and:

“Where a judge grants permission for further questioning…he shall make such directions as he considers appropriate with regard to:

(a) the maximum permitted period…

(b) the total length of time over which further questioning is permitted; or

(c) any other directions as required in the interests of justice.”

Furthermore, we use the expression that I picked up with the Minister: a “related terrorism offence”, which

“means a terrorism offence arising in whole or in part from the same set of facts as the offence with which the person has already been charged, or officially informed that they may be prosecuted.”

That is included because I have always had the slight anxiety, which the Government do not appear to share, that there may be a successful challenge to the notion that just because a person is charged with a particular offence, we can automatically go and charge them with another. My gut instinct is that that might be wrong because, in practising criminal law, I have been under the impression that if the matter arises entirely from the same facts, at present there may be objection, although I am conscious that the Minister has been advised—by his civil servants, I think—that that is not the case. To help the Government and because I would much rather that this situation did not arise, we have used the expression a “related terrorism offence”, which I hope effectively covers that point.

I basically agree with my hon. and learned Friend. However, it is possible that both the Government proposal and his amendment might preclude a defendant or offender from being re-questioned if they wished to be so in order to clarify what they had said before. Perhaps we should consider whether the changes should be drafted in such a way as to make it plain that an offender could request re-questioning in order to clarify something or for some other reason.

My right hon. and learned Friend raises an interesting point, although, at this stage, I fear that we shall have to consider it in another place. However, in trying to approach the debate in the same spirit in which I know the Minister has approached it—I repeat my gratitude to him for having taken on board the matters that have been raised—let me say that the Government have the opportunity to look at this further, so that we have a system with which we are all happy.

I do not want to take up much more of the House’s time, so let me simply reiterate that I do not believe that judicial supervision will produce any obstacle to achieving what the Government want. I do not think it will take up time. I do not even think it will cost very much. For all those reasons, it would be wise to include it in the Bill.

Just so that the Minister knows it, our position is that we will welcome new clauses 18 and 19, but I say with some regret that we will vote against amendment No. 57, because we would like the opportunity for our amendment No. 16 to be put before the House. Alternatively, if the hon. Member for Hendon (Mr. Dismore) chooses to press new clause 4 to a Division, we will support him. With that in mind, I hope that whatever the outcome of this evening’s debate, the Minister will examine this matter as the Bill goes through the House of Lords. I have no doubt that their lordships will be taking an interest in the matter, and it is in everybody’s interest that we should get it right.

I am grateful to have the opportunity to follow the hon. and learned Member for Beaconsfield (Mr. Grieve), and I agreed with everything that he has had to say about this matter. I am also grateful to my right hon. Friend the Minister for the way in which he has approached it constructively and has moved the debate on a bit. The Joint Committee on Human Rights, which I have the honour of chairing, first recommended the introduction of post-charge questioning as long ago as July 2006 as a way of improving prosecution and as a human rights-compliant alternative to pre-charge detention. The proposal was part of a wider package of measures that we suggested.

I accept, as the hon. and learned Member for Beaconsfield has done, that this measure is not a panacea. I also accept the comment of the former deputy assistant commissioner, Peter Clarke, that it is unlikely that a suspect would answer questions after charge, because they do not do so pre-charge. The important fact is that the measure would give us the opportunity to draw adverse inferences at trial if a suspect was not prepared to co-operate.

The Government say that the measure does not breach article 6—the right against self-incrimination—and we agree with that, but only if the right safeguards against the oppressive use of post-charge questioning are put in place. That view is shared by Lord Carlile, the independent reviewer of terrorism legislation. His report on the proposed measures for this Bill stated that the provision

“would require careful amendment to the current Police and Criminal Evidence Act 1984 Codes of Practice, or an additional and specific Code.”

He says that that is particularly the case with regard to

“limitations on its extent, and…protection of the suspect from arbitrariness.”

In particular, he mentioned the importance of judicial supervision of the exercise of the power and the need to amend the code to

“include protection against repetitive or oppressive questioning.”

That view was shared by the eminent Professor Clive Walker and Professor Ed Cape, who is a criminal law professor, when they gave evidence to our Committee. They both expressed their strong concerns about the need for a number of detailed safeguards, particularly because the situation is different after charge, when the accused is in a particularly vulnerable position compared with the position pre-charge. Although many of the physical conditions could be dealt with in the PACE codes, it is important to set out in primary legislation the purpose of the questioning, the limitations on it—in particular, that it should be confined to new evidence—and the need for judicial supervision.

My new clause 4 would give effect to a series of recommendations proposed by the Joint Committee on Human Rights in its eighth report on counter-terrorism policy, published in February 2008, and in its 10th report on the subject. I am pleased that the Government have accepted some of our recommendations in principle and that we have made progress on others, although decisions remain on some.

The two key issues are those highlighted by the hon. and learned Member for Beaconsfield: judicial authority and the time limit for questioning. In their original responses, the Government merely said that it is the prison governor’s responsibility thoroughly to scrutinise the request, as they do for post-charge interviews and other matters—and that was about it. Our view was pretty clearly that that was an inadequate safeguard.

We now have the proposal on authorisation for 24 hours by a superintendent—presumably, that is again subject only to what the prison governor may or may not have to say about it, and that is not much of a safeguard—and the possibility of authorisation in chunks of five days by magistrates. Of course, it is not just one batch of five days; it can be repeated five days at a time. Some progress has been made, but the position is a long way short of the safeguards that are needed.

I stand by our report’s view that there should be judicial supervision. We have judicial supervision of pre-charge detention, for the purpose ultimately, I suppose, of questioning the suspect, so what is wrong with post-charge questioning also being subject to that judicial authority? Why choose the magistrates? We can only assume from the explanation that we have been given by the Minister that the magistrates would be expected to undertake rather less scrutiny of the police and Crown Prosecution Service request than a High Court or circuit judge would. We are told that it might slow down the process, but it is less time-critical because we are talking about after charge, not before.

I am very concerned about the five-day chunks, because they could become oppressive. We could end up with a cat and mouse game with the suspect. There is no reason why the police should not be able to organise their questioning before they start. We must also bear in mind the fact that a suspect may be on bail, because the offence is not one of the major or serious ones. In that case, the suspect could be rearrested and interviewed in detention for five days at a time.

We are also concerned about the sort of evidence that should be put to the suspect. We accept the argument that it should include new evidence that has come to light post-charge, such as computer decrypts or evidence from overseas that could not reasonably have been received before, but there is a risk of oppressive questioning if old evidence is regurgitated and old questions are put again, effectively giving the police a second bite at the cherry. The new draft PACE code seems to be on the same wavelength as we are with that point, but our view is that, because this is such an important development, the safeguards should be in the Bill.

I presume that some of my hon. Friend’s new clause would be redundant if Government new clauses 18 and 19 were to be added to the Bill. I understand the point that he makes about post-charge questioning on only new evidence, but I do not understand the point about evidence that

“could not reasonable”—

I think that that is a typographical error and should read “reasonably”—

“have come to light before.”

What would happen if another suspect in the same case decided to provide some evidence that he had—in his mind—reasonably withheld until that point? He might be held to have done so unreasonably, in which case I presume that questioning on it would not be allowed.

Ultimately that will be for the judicial authority to decide, but we are talking about a case in which, say, a computer has been seized and is in the possession of the police, but has not been decrypted. If the decryption comes after charge, it would be reasonable for that evidence to be put to the suspect. Similarly, if another suspect turns Queen’s evidence and decides to confess, that is evidence that could not reasonably have been available to the police before. It is a question of common sense. We added that provision to our original intentions to cope with scenarios in which new evidence came to light that might have been available before, but could not have been put to the suspect for those sorts of reasons. That part of the new clause is clear.

We wanted to provide for the presence of the defendant’s lawyer, and the Government have accepted that in principle in the draft PACE code. It is an important safeguard that should be included in the Bill.

We also want the interviews to be video-recorded, and I am pleased that the Government’s amendments will give effect to that. My right hon. Friend the Minister has explained that the exceptions that troubled me in new clause 18(2) were to cover Scotland, so I shall not press that point.

New clauses 4, 7 and 8 would require the judge to review the transcript and provide that there should be no questioning after the start of the trial. The Government appear to agree with the second point, but say that that should be up to the trial judge. Our view is that such a safeguard should be included in the Bill, primarily to ensure that the rules are followed. It should not be left to the uncertainty of how a trial judge may react. For example, if a case is adjourned—

I agree entirely with the hon. Gentleman. I find it inconceivable that someone could be interviewed during a trial.

I agree, but unless it is excluded, one cannot say for sure that it will not happen. The PACE code seems to be heading in that direction. Let us suppose that a trial were adjourned for some reason. The trial judge could allow questioning to go ahead because there was time for it. The only way to prevent that for sure and ensure that the rules are kept is to include a provision in the Bill. That is why we also want to provide that the judge should review the transcript of the examination of the suspect, because the judge can then check whether the parameters laid down when he or she gave consent have been properly followed. That would effectively mean that the whole process would be subject to judicial supervision, which is what Lord Carlile and the eminent professors seem to recommend, and with which we agree. We should not leave those fundamental and essential safeguards to the uncertainties and vagaries of a trial judge, who may react in a different way.

To conclude, we certainly welcome the introduction of post-charge questioning. There is a considerable measure of agreement about the safeguards. We need, in particular, proper judicial authorisation and fair maximum time limits to avoid oppressive questioning and the risk of no fair trial, which would be the case if new clause 4 were not accepted.

I, too, want to start my comments by thanking the Minister for what he has taken on board from the concerns that were expressed in Committee. I am sure that other Opposition Members have had the experience of serving in Committee when a range of amendments have been tabled, many of which were perfectly straightforward, and none has been taken on board. Here, we have an example of some having been taken on board and the Government coming back with their own proposals. From that point of view, it has been a positive experience.

It is clear that there is almost universal consensus that post-charge questioning is necessary, but there is also almost universal consensus on the limits of its effectiveness. The Minister has said that it is not a silver bullet, and all Members in the House, and those who were on the Committee, would agree, because terrorists are inclined not to respond to questions. Post-charge questioning should be part of the panoply of tools or measures that are at our disposal to tackle terrorist cases.

I am pleased to say that, with varying degrees of enthusiasm, the Liberal Democrats can support all the amendments, from the proposals tabled by the Government to those tabled by the official Opposition and the Joint Committee on Human Rights. The Government’s proposals create a system of safeguards over post-charge questioning, including judicial oversight by justices of the peace after the first 24 hours and video recording of the interview.

The Conservatives have tabled a group of amendments that involve an application to the Crown court, which can then judge the legitimacy of the case and set out conditions. The Minister described those amendments as creating a burden, but there are clearly cases where it is worth creating a burden because a contribution is made. Members often bemoan the number of forms that the police have to complete, but there are some good reasons why some of those forms are completed. They create a burden, but they make a positive contribution. The hon. and learned Member for Beaconsfield (Mr. Grieve) eloquently set out why, if there were a burden, it would be strictly limited.

The hon. Gentleman will be aware that the Government are planning to get rid of some of those forms, or at least to reduce the burden, by implementing the Flanagan report. Will his party support the implementation of that report?

I do not think that it would be appropriate for me to respond to that point. Clearly, no Member will say that they are in favour of unnecessarily burdensome form-filling. That is my view, and I am sure that it is the view of every other Member in the Chamber.

The hon. Member for Hendon (Mr. Dismore) eloquently set out the reasons why the JCHR has come up with a much more detailed series of amendments on the appropriate judicial oversight as well as the right to legal representation. The Minister has highlighted a point in the JCHR proposals that might require some refinement. Will requiring the presence of a defendant’s lawyer mean that there will be a loophole that people can use? That might need some refinement.

We are glad that the Government have taken on board so many of the points raised in Committee and brought forward amendments that introduce proper safeguards for post-charge questioning. We accept that that is not a cure-all, but it is important that that type of questioning does not become a form of intimidation—especially in terrorist investigations, where the evidence thresholds are lower.

Finally, we support the cross-party consensus on this matter. Such a consensus does not always arise, but there is a strict order of preference among the amendments on which we might vote today. If the hon. Member for Hendon is inclined to press his proposals to a vote, we would be keen to support them, but we would be equally happy to support the Conservative amendments. If we are left with only the Government amendments, we accept that they make a contribution and we would be comfortable about supporting them as well.

I want to make three points. First, my amendment No. 46 proposes that post-charge questioning should not come into effect until the codes of practice have been approved under the affirmative procedure of this House. However, the Government’s new clause seems to meet that objective, and I welcome it.

My second point has to do with judicial supervision, which I believe should be conducted by the Crown court rather than by the justices. To that extent, I very much support new clause 4 and the amendments tabled by my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve). It is preferable that a Crown court judge—who in any event is likely to be seized with the case—should have the supervisory role, rather than the justices. In part, that reflects my unease about the justices’ courts, which are not always as fully aware of the relevant facts as perhaps they should be.

My final point relates to the law of unintended consequences. It is obviously right that we should lay down the statutory framework within which the judicial approval for post-charge questioning should be sought, but I am slightly troubled that we may have produced proposals that would prevent post-charge questioning when that is what alleged offenders want. For example, they may want to have their previous statements clarified, or they may have found material that supports what was said in previous interviews. In such circumstances, they may want to be interviewed again, post-charge.

I am not absolutely clear in my own mind as to whether what we are discussing now would preclude that happening, but it might, and the Government should reflect on that possibility. I recognise that we cannot resolve the problem today but, if my anxiety turns out to be well placed, the other place is the proper place to address it.

I agree with what the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) has said. The point is moot, and I certainly cannot offer an answer to the important question that he has posed. However, it is on the record now and I hope that someone will answer it later.

I thank the hon. Gentleman for allowing me to intervene on the point that he has just made in response to the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). New clause 4 would mean that post-charge questioning could relate only to new evidence: if it were accepted, it would preclude the possibility that people could be interviewed again.

Not necessarily: the right hon. and learned Member for Sleaford and North Hykeham said that some new evidence might be thrown up that caused the defendant or the accused to reconsider what he or she had said earlier. That does not preclude the possibility that people could be re-interviewed. In any event, it seems that none of us in the Chamber is able to offer an answer on that point, but I accept what the hon. Gentleman says: there is an important debate to be had.

On new clauses 18 and 19, the Minister said in Committee that he would consider the issues, and to be fair to him, he has certainly done that. Interestingly, he also said:

“I do not entirely dismiss judicial oversight and all the detail; I simply ask the Committee to lay those matters to one side for now. Let us go away, have a further look”.––[Official Report, Counter-Terrorism Public Bill Committee, 8 May 2008; c. 338.]

To be fair, that is what he did with many points to do with the Bill, but I ask him now to look at new clause 4, which has the authority of the Joint Committee on Human Rights behind it. The new clause is very useful, and the Government might well consider accepting it in due course. I do not disagree with the Conservative amendment either; I am really hedging my bets on this one. With the bets that I have made, I hope to get a horse in the top four.

Of the myriad issues that we started off with in Committee, the only two left are the issue of judicial oversight and the question of the length of post-charge questioning. We are so near agreement that it would be very good if we were able to reach it. The Minister said in Committee that we could leave some matters to the trial judge, because he would decide at the beginning of a trial whether the questioning was oppressive, and so on. That is one way of doing things, but it would be preferable to provide for limited judicial oversight. The judge concerned would not have to be from the High Court; a circuit judge would be fine, I am sure. People apply for public interest immunity certificates to gain the right not to have certain evidence disclosed in an ordinary criminal trial. Those certificates are two a penny. They are granted all the time, and they do not take very much time from the judge’s list. It typically takes perhaps half an hour before the judge resumes his list. That would be an important, valuable safeguard. To be fair to the Minister, he has come a long way on the issue.

I share the hon. Gentleman’s general views, but although new clause 4 raises all the right issues, it is not drafted terribly well. We would like the Minister to agree to the principles of new clause 4 and to come back with an amendment of his own in the other place, or to invite those in the other place to come up with such an amendment for him.

I will not repeat that verbatim, but the Minister heard what was said, and I am sure that he will make a note of it, mentally or manually. Such an amendment would be fitting, a useful addition to the part of the Bill that we are discussing, and an important safeguard. As someone with personal experience of criminal matters—[Interruption.] On the professional side, I hasten to add. I thank the Minister for reminding me of that. That was almost a confession on the Floor of the House. I honestly do not think that limited judicial oversight will add a time burden, or any other burden.

The issue of post-charge questioning is not as time-crucial as issues relating to other parts of the Bill. I hope that the Minister can consider including the purport of new clause 4, if not its full wording, in the Bill in due course. I finish by saying, in an emollient fashion, that the Government have come a long way on the part of the Bill that we are discussing. There are just a few further feet to travel.

None of us would like to be churlish about how far the Minister has moved on the issue. I agree with the previous speaker that the Minister has done particularly well in reacting to many issues that were raised in Committee proceedings, which I have read but did not attend. I emphasise that even though the significant change that we are discussing has all-party support, it is important that it be implemented with due consideration for its seriousness. The Government have come under a good deal of pressure for seemingly intending to take draconian measures when they are not necessary. The change is a valuable example of taking a sensible measure in a non-draconian way, which gets support of the kind that we need in order to ensure that the special arrangements that we make for our counter-terrorism activities are accepted as suitable within a democratic society. Most of us ought to be concerned to avoid alienating people by going against our own philosophy.

The concept of going to a judge in the Crown court to get his agreement for post-charge questioning is not just a technicality. It would ensure that everyone realised that that was a step to be taken for a reason, not a step to be taken as part of the normal activity. That is all we are asking, and it has an importance outside as well as to the people who are charged, for it says once again that we are fiercely supportive of a judicial system that is designed to enhance as well as to protect our reputation as a free society. That is why the provision must be introduced. That is why I posed the question earlier, and why I would still like the Minister to tell us how often he envisages the procedure being invoked, as it emphasises the way in which we regard the matter.

Reading the text of the new clauses and the proposed amendments, it is difficult to see why they should be confined to terrorist offences. Looking at the generality of the language, surely it would seem that they could be applied to all serious offences, under a fairly wide definition.

The more we are able to consider these matters in the generality of the way the criminal justice system works, and the more we are able to see that changes can be made which do not damage the right of the individual in face of the full majesty of the law, the better. Special anti-terrorism arrangements inherently cause most of us concern. I agree with my right hon. and learned Friend, and the Minister might like to consider that.

The key thing for today is to ensure judicial oversight, not just because we think it is a good thing, not just because we think it will stop such measures becoming the generality, not just because we do not want people to be lax in what they do before they charge, but because we need to give constant succour to those outside who want to see that our changes in respect of the terrorist threat are firmly grounded in our attitude towards the freedom of the individual and the right of people to be treated as innocent until they are found guilty.

The debate has been useful. All three models have virtue. We are talking partly about philosophy and partly about the mechanics of implementation. I agree with the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) and others. I have always tried to approach these matters from what is normal in the generality of the criminal justice system—that relates to the point about introducing post-charge questioning more broadly—and replicating that normality as far as we can in the exceptional circumstances of terrorism law. Those are both reasonable positions to start from. Apart from some technical flaws in the amendments proposed, I have little to criticise in their broad philosophy, as I indicated at the start.

It is right and proper, however, that I offer Government amendment No. 57. I am grateful for the comments on new clauses 18 and 19; I pocketed those and moved on. It is not for me to invite the other place to do anything other than agree the Government’s position. I accept that although virtuous, extremely well thought through and well informed, ours is not the only model that would achieve the efficient use of post-charge questioning. It is not because I am weary at having moved so often on so many fronts in terms of our deliberations, but on this matter I have moved as far as I choose to for now, notwithstanding the virtues of some other proposals. For example, there is the small point that I do not want a defendant to be in a position to veto post-charge questioning because their lawyer is not present. That is simply a matter of wording. I could be even more picky and say that having travelled so far in terms of new clauses 18 and 19, I would rather that the video had sound, which is not offered in new clause 4, notwithstanding what I said earlier about the disapplication for Scotland.

I am not being pernickety and ungrateful for all the advice to move a lot further than I have done already, but the model that I offer through amendment No. 57, together with new clauses 18 and 19, together with the draft amendments to the PACE code, hangs together far more coherently than the mix and match that will occur if new clauses 18 and 19 are accepted, amendment No. 57 rejected and we go for new clause 4 or the amendments tabled by the hon. and learned Member for Beaconsfield (Mr. Grieve).

The Minister may not want to deal with this now, but before he sits down will he deal with the matter of the defendant seeking the questioning? It would be helpful to have assurances on that point.

Just let me finish this point. I am not being unjustly or over-critical about new clause 4 or the amendments tabled by the hon. and learned Gentleman, but if they were passed in place of what I have offered, they might or might not sit with the changes made to the PACE code, and they might or might not sit with new clauses 18 and 19. I would ask the House to take my miserable offerings, albeit with some movement forward, because they are cohesive with the other two; then there might be a chance later to tidy up all the movement that I have made.

The Minister is very tempting, but I am minded to press new clause 4, partly because I do not wish on amendment No. 16 to find myself having to vote against Government amendment No. 57 and all the other Government amendments that will be taken at half-past 6, because that seems quite ridiculous, but also because if new clause 4 were to be passed the Government would not have too much difficulty tidying the matter up in another place.

I have told the hon. and learned Gentleman that I am rather weary as a result of all the movement that I have already made in that regard.

My right hon. Friend sounds very much like a man who is about to move a bit further. Surely if new clause 4 were to be carried as well as new clauses 18 and 19, they would be contradictory. The substantial point is whether a magistrate or a judge should decide. What practical differences would there be in the process?

This opens up other areas. As I said earlier, not just for the process but for the Crown court judge concerned, it could be over-burdensome and too time- consuming for something that should be relatively straightforward. We quite deliberately say—this was another element on my road of discovery—“justice of the peace” rather than “magistrate”, because apparently a justice of the peace is a magistrate available 24 hours a day rather than otherwise.

My hon. Friend has made a fair point in the sense that, for the sake of cohesion, the draft changes to the PACE code, new clauses 18 and 19 and amendment No. 57 hang together. Those measures have been offered as one package, and they should be passed by this House in those terms. If we were to go further in the direction of new clause 4 towards a different model of judicial oversight, rather than the magistracy model, it would be a matter for the other place.

I have some good news for the Minister. I will not press new clause 4, because it would prevent our debating control orders before 6.30 pm., but I am certain that the other place will return to the issue. In our view, judicial oversight is necessary. We have some arcane procedures to deal with in this House this afternoon, and the last thing I want is an unnecessary vote that takes up more of the House’s time and prevents our debating other important business.

On the point raised by the right hon. and learned Member for Sleaford and North Hykeham, as the Bill is drafted a constable is the initiator of the request for post-charge questioning. I think—I will double-check the point—that if the defendant says they want to be questioned further on some reasonable points, it should not be unreasonably dealt with by the constable that the request came from the defendant rather than otherwise. I think that goes some way to addressing the point, but there is clearly a concern about how the request is recorded, lodged and responded to. The point is fair, and it should be responded to in detail in another place.

My hon. Friend the Member for Hendon (Mr. Dismore) has said that suspects on bail could be re-arrested for post-charge questioning. Actually, that cannot happen, because there is no power to detain in that regard. The provisions apply only to post-charge questioning, which applies only to those already in detention.

This has been a job well done all round, and we have made a degree of progress, although I do not doubt that the matter will be revisited in the other place.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 19

Issue and revision of code of practice

‘(1) This section applies to the code of practice under section [Recording of interviews] (recording of interviews).

(2) The Secretary of State must—

(a) publish a draft of the proposed code, and

(b) consider any representations made about the draft,

and may modify the draft in the light of the representations made.

(3) The Secretary of State must lay a draft of the code before Parliament.

(4) After laying the draft code before Parliament the Secretary of State may bring it into operation by order.

(5) The order is subject to affirmative resolution procedure.

(6) The Secretary of State may revise a code and issue the revised code, and subsections (2) to (5) apply to a revised code as they apply to an original code.

(7) Failure to observe a provision of a code does not of itself render a constable liable to criminal or civil proceedings.

(8) A code—

(a) is admissible in evidence in criminal and civil proceedings, and

(b) shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.’—[Mr. McNulty.]

Brought up, read the First and Second time, and added to the Bill.

No. Like the hon. and learned Member for Beaconsfield (Mr. Grieve), I want to get on to the next debate, although I support new clause 4.

New Clause 5

Control orders: pre-conditions

‘After sub-paragraph (b) in section 2(1) of the Prevention of Terrorism Act 2005 there is inserted—

“; and (c) unless section 3(1)(b) below applies, the DPP has certified that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence.”’.—[Mr. Dismore.]

Brought up, and read the First time.

With this it will be convenient to discuss the following:

New clause 6—Control orders: ongoing review of possibility of prosecution—

‘After subsection (6) of section 8 of the Prevention of Terrorism Act 2005 there is inserted—

“(6A) The Secretary of State shall, throughout the period during which the control order has effect—

(a) ensure that the question of whether there is a reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence is kept under review at least every three months;

(b) consult the police prior to such review; and

(c) share with the police such information as is available to him which is relevant to the prospects of a successful prosecution.”’.

New clause 7—Control orders: reasons for decisions on prospects of prosecution—

‘After subsection (2) of section 8 of the Prevention of Terrorism Act 2005 there is inserted—

“(2A) If the chief officer advises the Secretary of State that there is no realistic prospect of prosecution, he shall give reasons for his view.

(2B) The chief officer’s reasons shall be disclosed to the controlled person to the extent that such disclosure would not be contrary to the public interest.”’.

New clause 8—Control orders: cumulative effect of restrictions relevant to determination about deprivation—

‘After subsection (10) of section 3 of the Prevention of Terrorism Act 2005 there is inserted—

“(10A) In determining whether the effect of a non-derogating control order is to deprive a person of their liberty, the factors to which the court shall have regard must include,

(a) the nature, duration, effects and manner of implementation of the restrictions, and

(b) the cumulative effect of the obligations.

(10B) The combination of obligations may amount to a deprivation of liberty even if no individual obligation amounts to such a deprivation.”’.

New clause 9—Control orders: maximum limit on daily curfews—

‘After subsection (5) of section 1 of the Prevention of Terrorism Act 2005 there is inserted—

“(5A) The duration of any prohibition or restriction on the controlled person’s movements shall not exceed 12 hours in any 24 hour period.”’.

New clause 10—Control orders: right to a fair hearing—

‘(1) At the end of subsection (13) of section 3 of the Prevention of Terrorism Act 2005 there is inserted—

“except where to do so would be incompatible with the right of the controlled person to a fair hearing”.

(2) At the end of paragraph 4(2)(a) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted—

“except where to do so would be incompatible with the right of the controlled person to a fair hearing”.

(3) At the end of paragraph 4(3)(d) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted—

“except where to do so would be incompatible with the right of the controlled person to a fair hearing”.

(4) After paragraph 4(5) in the Schedule to the Prevention of Terrorism Act 2005 there is inserted—

“(6) Nothing in this paragraph, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with the right to a fair hearing in Article 6 of the European Convention on Human Rights.”’.

New clause 11—Control orders: obligation to give reasons—

‘(1) After subsection (4) of section 2 of the Prevention of Terrorism Act 2005 there is inserted—

“(4A) A non-derogating control order must contain as full as possible an explanation of why the Secretary of State considers that the grounds in section 2(1) above are made out.”’.

New clause 12—Control orders: obligation to provide gist of closed material—

‘(1) At the end of paragraph 4(3)(e) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted—

“and must require the Secretary of State to provide a summary of any material on which he intends to rely and on which fairness requires the controlled person to have an opportunity to comment.”’.

New clause 13—Control orders: communications between special advocate and controlled person—

‘After sub-paragraph 7(5) in the Schedule to the Prevention of Terrorism Act 2005 there is inserted—

“(5A) Rules of court must secure that persons appointed under this paragraph may apply to a High Court judge, without notice to the Secretary of State, for permission to communicate with the controlled person after the service of closed material.”’.

New clause 14—Control orders: proportionality of procedural protection—

‘After subsection 3(11) of the Prevention of Terrorism Act 2005 there is inserted—

“(11A) In a hearing to determine whether the Secretary of State’s decision is flawed, the controlled person is entitled to such measure of procedural protection as is commensurate with the gravity of the potential consequences of the order for the controlled person.”’.

New clause 15—Control orders: power of special advocates to call expert witnesses—

‘After paragraph 4(3)(e) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted—

“(ea) that, where permission is given by the relevant court not to disclose material, persons appointed under paragraph 7 may call witnesses to rebut the closed material.”’.

New clause 16—Control orders: maximum duration—

‘After section 3 of the Prevention of Terrorism Act 2005 there is inserted—

“3A Duration of non-derogating control orders

A non-derogating control order ceases to have effect at the end of the period of two years from the date on which it was made, unless there are exceptional circumstances justifying its renewal.”’.

Amendment No. 11, in clause 74, page 54, line 8, leave out subsection (2).

Amendment No. 12, line 40 , leave out subsection (4).

This group of new clauses and amendments relates to control orders. When we debated the renewal order in February, the control order regime was subject to considerable criticism. I agree with the Government that the control order regime is the second best option after prosecution. If the control order regime is to stay, we must review the safeguards and ensure that it is compatible with human rights law. We are discussing restrictions on liberty without a criminal charge or trial.

New clauses 5 to 7 refer to the importance of prosecution; new clause 8 relates to the nature of control orders themselves; new clauses 10 to 15 concern due process; and new clause 16 relates to an exit strategy. In the case of E, the House of Lords said that there was an implicit duty on the Government to keep the possibility of prosecution under review. Baroness Hale said that control orders were second best and that the public were far better protected, because even while criminal proceedings are pending, the controlled person is subject to serious restrictions on the basis of mere suspicion.

I welcome the introduction of the control order review group’s quarterly meetings to consider whether prosecution can take place, but not one controllee has ever been prosecuted. New clause 5 would put an extra check on whether prosecution was possible by requiring the Director of Public Prosecutions to certify that there was no reasonable prospect of prosecution before an order could be made. We know that the DPP is quite important in such matters because of the debate that we are likely to have tomorrow.

New clause 6 would make statutory the duty to keep matters under review. It is current practice; the Government agreed recently with the control order review group. In the case of Secretary of State for the Home Department v. E, they argued that they needed to have only periodic inquiries into whether the matter should go forward, so we need to ensure that the provision is included in the legislation. It is also important to ensure that the police see all the material available to the Home Secretary. They may well be able to turn some of what is currently inadmissible into admissible evidence; they have had some success in doing so in other terrorist cases. Lord Carlile, in his third report on control orders, made the point that the continuing investigation of current controllees could provide evidence for prosecution and conviction, so the new clause would give effect to his recommendation, too.

New clause 7 would provide for more transparency in the process and, again, would give effect to a recommendation from Lord Carlile in his third report, when he said that more detail about the reasons why there were no reasonable prospects of prosecution should be given by the chief of police to the Home Secretary. The new clause would also give effect to recommendations from Lord Carlile’s first report in 2006, when he said that the reasons should be disclosed to the controllee unless that would be contrary to the public interest. The new clauses would give effect to his recommendations in those two reports.

New clauses 8 and 9 are about the nature of the control order and whether it amounts to a deprivation of liberty—against article 5 of the European convention on human rights. If it does, it should become a derogating control order. That would happen only if the courts authorised it. Whether the order amounts to a deprivation of liberty is a question of not just the length of the control order, in terms of the number of hours per day, but the conditions imposed in combination. In the case of Guzzardi v. Italy, the European Court of Human Rights found that when combined with other restrictions, nine hours maximum amounted to a deprivation of liberty. We must have a more nuanced approach than simply stipulating the number of hours and a curfew.

Lord Bingham in the case of the Secretary of State for the Home Department v. JJ said that one should take account of the individual’s whole situation, and that it was inappropriate to draw a sharp distinction between a period of confinement that would amount to a deprivation of liberty and one that would not. New clause 8 would make that point in the Bill, looking at the overall factors that must be taken into account.

The period of daily confinement is, of course, important in the overall assessment, and new clause 9 therefore seeks to limit the daily length to a maximum of 12 hours. There is no guarantee that it would be compliant with article 5. After previous court cases, the Government reduced some periods to 12 hours. In fact, there is little evidence of any significant damage to public protection in reducing control orders to 12 hours. If there were any such evidence, the Government should and would have produced it by now.

The Government extrapolate that 16 hours is permissible from the judgment of Lord Brown of Eaton-under-Heywood in the JJ case. That is a rather strange extrapolation, because he actually said:

“It may be, indeed, that 16 hours itself is too long” ,

but that he wanted to leave it to the Strasbourg Court to decide. That is hardly a ringing endorsement of the Government’s view that 16 hours is permissible. We have no clear judicial guidance and Parliament therefore ought to form its own view, which my new clause would enable it to do.

The most important issue that we must face is the lack of due process. New clauses 10 and 15 are based on the recommendations that the Joint Committee on Human Rights put forward in our 10th counter-terrorism report in May. They are rooted in the evidence that we received from the special advocates who deal with such cases. I hope that my right hon. Friend the Minister will meet them, as he has promised to do, to discuss their concerns further.

Once a controllee enters the twilight zone of dubious legality, he faces restrictions on where he can go and when, who he can meet, his use of his phone and computer and his transfer of money and goods. He also faces requirements to report to the police, to allow the police into his home without a further warrant and many other restrictions. The controllee enters a Kafkaesque world in which, like those unfortunates who were brought before Henry VIII’s Star Chamber, he is not told of the case against him, is not allowed to discuss his case with his special advocate, sees the case against him decided on the ground of mere reasonable suspicion and, at the end of the process, is not given the reasons why the order against him was made. On that basis, people have been subjected to controls for three years so far, and remain so indefinitely—in some cases on top of three years’ previous detention without trial in Belmarsh. We know that the security services can make mistakes, not only in the de Menezes case but in the Lotfi Raissi case, which has had such a serious impact on an innocent man for the rest of his life. It is essential that safeguards are brought into play so as to have at least some element of due process in the control order regime if they are to continue to be used to protect the public.

The Government say that the House of Lords approved their procedures in the MB case, but some of our criticisms were upheld—for example, of the entirely undisclosed nature of the prosecution case. The Government have ignored the evidence given to us by the special advocates, and the guidance on MB is somewhat confusing. Indeed, another case is going to the Court of Appeal next month. This area of the law desperately needs clarification. I accept that some of the points that we have put forward are not required in relation to MB, but they are needed to achieve a modicum of fairness. New clause 10 would avoid the need for mental gymnastics by ensuring that the controllee would be entitled to a fair hearing. There is a lack of certainty in the Bill that needs correction.

New clause 11 would require an explanation to be given to the controllee of why the grounds for the control order were made out. New clause 12 would require the controllee at least to be aware of a summary of the material—the gist—which fairness requires him to be able to comment on. New clause 13 would allow the special advocate to apply to the court for authority to discuss aspects of the case with the controllee. That would be a safeguard from the security services’ point of view. It would ensure that there was an independent assessment so that the special advocate did not disclose matters that he should not disclose, but at the same time provide a degree of fairness. New clause 14 would provide a procedural protection for what was happening on a scale concomitant with the seriousness of the conditions to be imposed. New clause 15 would allow a rebuttal of expert evidence to be brought. Together, these new clauses, which are based on recommendations from the Joint Committee on Human Rights and rooted in the evidence that we received from the special advocates, would provide a greater degree of legal certainty and procedural fairness, which are essential if the control order regime is to continue into the future.

We should also consider the duration of control orders. Seven of the 15 people involved have been under control orders for more than two years, and two for more than three years, on top of three years’ detention in Belmarsh that was later found to be unlawful. Not one of them has ever been prosecuted. Nine controllees were serving deportation notices and six have been deported. One control order has been revoked and two were not renewed. Lord Carlile drew our attention to the fact that after that length of time such people are of somewhat questionable utility to terrorist groups, which prefer to operate with “clean skins”, not those who are so clearly compromised. The restrictions on freedom may not be Guantanamo Bay conditions, but they certainly provide a gilded cage in which people are confined indefinitely, and we therefore need to see an exit strategy. My new clause suggests a sunset clause of a maximum of two years on a control order unless there are exceptional circumstances. There is no clear human rights argument as to what should be the maximum length of time, but that chimes with Lord Carlile’s recommendation of a maximum two-year presumption unless there is a genuinely exceptional need. It is a question for Parliament to debate and decide.

Control orders are definitely a second best option to prosecution. We have to ensure that they are not unduly oppressive, that they are subject to due process and procedural fairness, and that there is ultimately an end to them in sight.

The hon. Member for Hendon (Mr. Dismore) and his Committee have done the House a good service in coming up with these new clauses and amendments and an opportunity to debate control orders. Many in this House will remember our original debate on the introduction orders in 2005. It is rather engraved on my heart as a debate that went on for some 36 continuous hours of ping-pong between the other place and this House. The curiosity of that debate was that although considerable anxiety had been expressed about the introduction of control orders, the issue on which consensus eventually disappeared was whether we should have a sunset clause in the measure to ensure by bringing it to an end within a reasonable period that the House would have to revisit it and think afresh.

I sometimes think that the opinion of those of us who wanted a sunset clause has been borne out by events. In fairness to the Government, I can fully understand why they have been coming back to the House year by year asking for the renewal of the power. I suspect that no one in this House likes control orders; certainly, none of us should. I think that I used the word “repellent” to describe the concept when we debated them in 2005, and I have seen nothing since to make me change my mind. The principle of enforcing restrictions on individuals and their liberties without the ordinary trial process is something that we cannot be happy about, although I have always accepted that there may be a necessity in view of the threat that we face. Being realistic about it, I can see that the Government are in a position to continue making a powerful case that renewal may be needed for the foreseeable future. All the more reason, therefore, why we should take the opportunity provided by the Bill to revisit what the architecture of control orders involves.

The Committee chaired by the hon. Member for Hendon has made an extremely important contribution to this debate, and the amendments that he has tabled are extremely valuable, even if each one probably needs to be considered separately. On new clause 5, the principle that there should be a requirement for a certification process that prosecution is not possible is one of the important safeguards that should be introduced into the control orders system. I do not doubt the Government’s good faith, and I have no reason to doubt the good faith of the Crown Prosecution Service, in respect of the fact that every effort must be made to ensure that individuals who are subject to control orders are prosecuted wherever possible. I leave to one side the debates that we have had about intercept evidence. I do not want to return to that subject and get bogged down in it, although I believe passionately that it might be of some assistance, if not a panacea, to have intercept evidence admitted. Nevertheless, it would be a valuable contribution to have a situation whereby, irrespective of whether we have intercept evidence, the Director of Public Prosecutions could provide such a certification process on the basis of the available evidence that is admissible in court. I very much hope that the Minister might feel able to respond positively to new clause 5, because I find it difficult to see why any rational individual should object to it.

Many of the hon. Gentleman’s other amendments are very sensible. I am bound to say that I am sympathetic to his view that there should be a finite period for control orders that do not involve a derogation. It might be premature for the Government to accept it at this stage, but I think that it is time for us to look carefully at the relationship between the special advocate and the person who is to be made subject to a control order to see whether we can make the system more flexible to enable better representation to take place.

Perhaps more controversially, the hon. Gentleman raises in new clause 9 the possibility of restricting to a period of 12 hours control orders for which derogation is not required. We are certainly in a grey area. We seem to have some confidence that 14 hours may be acceptable, but that 16 hours may, in some cases, not be acceptable. Having greater certainty might be valuable, but it is a matter on which I would want to hear from the Minister what he thinks would be appropriate.

I can only repeat that I am grateful to the hon. Member for Hendon for having introduced the new clauses, but before I allow time for further debate, and mindful of the fact that we have only half an hour to conclude the debate on this group, I repeat my view that new clause 5 merits the Government’s acceptance, even if they cannot accept anything else. Such acceptance would be a symbol of their good intent, and I do not see how it would interfere with the current system. If they are prepared to make some concession in the proposed direction, they will be in a much better position, when we come to renewing control orders next year, to say that they have made some progress in this matter.

If the Minister were minded to look sympathetically at new clause 5, and perhaps assure us that even if he does not accept the other new clauses, the process of debate in the other place might prove productive in seeing whether we can adopt some of the suggestions raised by the hon. Member for Hendon and his Committee, the House would have made good progress this afternoon. I would then be in a position to say even nicer things to the Minister at the end of the debate on this group than I did at the beginning. New clause 5 is important, and I hope that the House will have an opportunity to express its view on it.

The Liberal Democrats oppose control orders. However, when proposals are made to ameliorate them, they are worth looking at, and the hon. Member for Hendon (Mr. Dismore) has introduced on behalf of his Committee a raft of sensible proposals that would go a long way towards improving the orders. Unfortunately, the way in which they were rushed through meant that they are not watertight; indeed, the former Home Secretary described them as full of holes.

The hon. Member for Hendon, through new clauses 5 to 7, is encouraging prosecution as an alternative to control orders, and we would all support that. In new clauses 8 and 9, he seeks to improve conditions for people on control orders. I do not know whether other hon. Members have seen the book by Gareth Peirce, in which she describes in some detail the impact that control orders have on people:

“The electronic tag they had to wear, which registered every entry and exit from the house, was only one element of the family’s altered existence; a voice recognition system was supposed to confirm the detainee’s presence at home during curfew, but the machines, of US manufacture, often failed to recognise the accents of Arabic speakers, with the result that uniformed police officers would enter the house in significant numbers at all times of day and night. No visitor would come near their homes because to enter required first to be vetted by the Home Office. Children could do no schoolwork that involved the internet, the use of which was forbidden. Families had endlessly to involve lawyers in the most trivial matters: to obtain permission to go into the garden; to attend a parent-teacher meeting; to arrange for a plumber to enter the house.”

We should not underestimate the significant impact that control orders have on the people to whom they are applied. It is therefore entirely right that the hon. Member for Hendon and his Committee should seek ways to improve the conditions of people subject to those orders.

The hon. Gentleman’s new clauses 10 to 15 would tighten the rules on hearings, and new clause 16 would restrict control orders to a maximum length of two years, except in extraordinary circumstances. We believe that the system is unjust and that the proposals made by the hon. Gentleman and his Committee are sound. If there is a vote on this matter, it is our intention to support his proposals.

As others have said, control orders are a difficult concept. Many of us have experience of control orders in respect of other legislation and know how they have worked and how their effects have been felt. Although the hon. Member for Hendon (Mr. Dismore) and his colleagues have not been able to challenge fundamentally the use of control orders as provided for in the 2005 legislation, their new clauses propose that preconditions and conditions should be attached to the use and deployment of such orders, which is to be commended to the House.

The preconditions and conditions that would be attached to control orders are entirely reasonable. If the Government are telling us in respect of other measures in the Bill that the opinions, feelings and findings of the Director of Public Prosecutions should be relevant and should motivate moves by the Secretary of State and Parliament, surely in the case of control orders, we can hear from the DPP about the prospects of a prosecution. That would not become a one-off, jeopardy judgment, because the other proposals provide that it could be subject to further review, on a timely basis, every quarter, while other aspects of the control order would also be subject to review.

It would be entirely unreasonable, given all we have said about control orders being repellent to some of us, and given what the Government say about such orders being a matter of last resort, to refuse the proposals of the hon. Member for Hendon and others. I know that time is tight because of the programme motion, so we cannot go through them all, but I endorse what was said by the hon. and learned Member for Beaconsfield (Mr. Grieve)—the Government could signal a degree of openness and consideration by agreeing to new clause 5. That would allow further consideration of the consequential and related issues as the Bill progresses.

I am not opposed to control orders, but I see them very much as a last resort. I return to the continuous concern that whatever we do must be seen in the context of accepting last resort measures only when they are necessary. It is for that reason that I support the request that the Minister should agree to new clause 5. We need to remove from the penumbra of control orders any aspects that can be reasonably seen, as the hon. Member for Foyle (Mark Durkan) said, to be redolent of circumstances in which powers were used in a manner about which we feel sorry in retrospect; one aspect is a constant understanding that there is no alternative, albeit the alternative of a trial and prosecution. That is one of the things we have to do to earn the right to have control orders in a free society.

The Minister can help the Government to recover their necessary reputation on such issues, which perhaps has been lost because of their determination to push in what many of us feel to be an illiberal direction on a number of other issues, some of which we shall come to later tomorrow. My hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) is right to suggest that it would be much more elegant for the Government to accept the changes than to allow them to be put to a vote. I use the word “elegant”, but I mean that it would be useful for the Government if they were seen to understand what some of us have felt it necessary to harry them about—their attitude in the matters that we feel unhappy about. They could show themselves able to reinforce the consensus, even among those of us who accept the need for control orders, that such orders should be subject to regular review. That could begin with the suggestion that it is necessary to ensure that there no alternative. That is, after all, not much to ask in a free society.

I, too, appreciate the work done by the hon. Member for Hendon (Mr. Dismore) and his Committee. Like the hon. and learned Member for Beaconsfield (Mr. Grieve), I believe that it would send out a good sign if the Government were prepared to consider new clause 5.

Personally, I am adamantly opposed to control orders, but they are a reality, and we are told that they serve a purpose. The proposals in the group would go some way towards ameliorating some of the concerns out there about the use of control orders. Requiring that

“the DPP has certified that there is no reasonable prospect of”

a successful prosecution is not asking a great deal in the circumstances. If a person has been put on an 18-month or two-year control order, with stringent conditions attached thereto, that requirement is the very least that we could call for. New clauses 6 and 7 propose the periodic review of whether there is a reasonable prospect of prosecution, which is also utterly reasonable, bearing in mind the huge limitations on the liberty of the individuals who are the subject of such orders.

The proposals are all well meant and would improve the control order mechanism. They would not render the mechanism unworkable or in any way less effective, but they would—if I can use this word—humanise it and send out a positive signal to the people out there who are desperately concerned about the purport of such orders. In so doing, the proposals would address quite a few of the human rights questions on this area of law that concern us all.

With those few words, I fully endorse the ideas behind the new clauses and amendments in the group. I urge the Minister, as others have, to consider accepting new clause 5 at the very least.

I, too, welcome the work of the JCHR on control orders. Indeed, dwelling on control orders has become one of its fixations—and, given their unique and extraordinary nature, quite rightly so for a Joint Committee on Human Rights. I therefore do not deprecate its work at all. However, the Government would look to the highest court in the land, the House of Lords, for our legal reference point, rather than the JCHR, however munificent—or whatever the word is—it is.

To tackle things backwards, I do not accept anything in new clauses 10 to 15 that challenges directly the conclusions of the most recent House of Lords judgment on the process and whether a fair trial, or otherwise, has been accorded under article 6. Nor do I accept the passing reference that my hon. Friend the Member for Hendon (Mr. Dismore) made to the dubious legality of control orders. We might not like control orders; they might sit in a twilight zone and they might be deeply unsatisfactory compared with persecution—I do apologise; I meant prosecution—which of course they are, but it is simply not good enough to say, “We’re against them.”

On one level, we are all against control orders. I start from the premise that the right hon. Member for Suffolk, Coastal (Mr. Gummer) set out of “as much normality as possible”. In fact, I got into trouble last September for saying that the strongest lesson that we should have learned post-7/7 was that the rules of the game had not changed, and not the opposite. That was indicated by the Government of whom I was part at the time.

I will therefore resist the blandishments of my hon. Friend the Member for Hendon on new clauses 10 to 15, however well intentioned the work of the Joint Committee was. We think that they are unnecessary. Given the choice between a report, however well intended, by the JCHR and a judgment by the House of Lords, we find ourselves, as we always are, of course, on the side of the Law Lords.

There is much to commend in the broad thrust of my hon. Friend’s new clauses 5, 6 and 7 on the renewal of control orders, as, from memory, I think I indicated last time. However, the formalisation that he seeks simply goes too far. There are reasons why I do not think that it would be appropriate always to go for non-urgent control order certification by the DPP, as proposed by new clause 5. My hon. Friend will know that the Lords scrutinised the matter at length. They concluded that no changes to section 8 of the Prevention of Terrorism Act 2005 were required. The Lords considered that there were “strong practical reasons” for the current approach and that the changes would have the

“potential to emasculate what is clearly intended to be an effective procedure”.

As I have already said, consultation arrangements are built into the legislation. As I think I said at the last annual review, should we make it clear that the processes for reviewing the potential for prosecution are all the sharper and clearer? Yes, we should. Should we look seriously into—and prove that we have looked seriously into—exit strategies for particular individuals? Yes, we should. Indeed, we have set out a range of ways in which we are seeking to do that. However, there are both principled and practical reasons for me to resist the substance of new clause 5, if not, in part, the spirit.

First, new clause 5 could leave a public protection gap. A control order may be necessary to protect the public from the risk of terrorism posed by an individual, even though prosecution of that individual is possible. For example, an individual may be on bail, pending trial for a relatively minor offence and so the risk posed by the individual is much greater than the bail conditions that a judge would lawfully be able to impose on the individual, meaning that a control order is imposed in the interim to manage that risk.

Secondly, new clause 5 could damage other investigations or prosecutions, or otherwise damage the public interest. My hon. Friend will be more than aware that, in addition to the purely evidential threshold, the Crown Prosecution Service is obliged to consider prosecution in the context of the wider public interest. Thirdly, and more practically, the proposal would be resource-intensive and does not take account of operational realities.

By the by, if that last point were the only one, it would not be sufficient, given the seriousness of the deprivation of liberty. Taken together, all three points militate against accepting new clause 5. However, I accept the spirit, if not the intent, of the comments that my hon. Friend and the hon. and learned Member for Beaconsfield (Mr. Grieve) made in saying that we need to be as clear as possible that we have considered everyone’s collective preference—that is, prosecution—in great detail and that, in addition, we have properly reviewed the prospects for a prosecution in future and an exit strategy. In part, that is what my hon. Friend is trying to get to in new clause 6. Again, however, new clause 6 as drafted, and probably in intent—although I am not imputing any malign intent—, is inappropriate.

It is important that we do not undermine the independent role of the CPS and the police. Very often—I say this merely in passing and no more—the very committee that should be more jealously guarding than any other the difference between the police, the CPS and the various arms of the state, and the interaction between the judiciary, the legislature and the Executive, couches some of its reports in terms that suggest that the Executive run the judiciary and legislature, which is not entirely appropriate. [Interruption.] I thought I heard my hon. Friend the Member for Foyle (Mark Durkan) say something then, but he points to the Liberal Democrat Benches—he must have thrown his voice.

The independence of the CPS and the police is important. The CPS, not the Secretary of State, is responsible for considering whether a person should be charged with a criminal offence. Any shift in that responsibility could undermine its role. So the notion of the review group looking at the future prospects for prosecution is, given the interface between the police and the CPS, appropriate. I would say that the proposed new subsection (6A)(a), (b) and (c) are unnecessary. The statutory obligations of the 2005 Act, combined with court judgments, already deliver the intention behind the amending provisions, and the courts have confirmed that the Secretary of State must consult the police on the prospects of prosecution and do what she can to ensure that the police’s consideration is meaningful by providing any relevant information available to them. We looked into the matter at the last review and we undertook to try to achieve that significantly better and in a clearer way, but it is not necessary to build it into the Bill in the way that my hon. Friend the Member for Hendon intends in new clause 6.

The Minister talks about the prospects of prosecution and who is involved in the process, but may I take him back to new clause 5? He relies heavily on the issue—to be debated tomorrow—of involving the Director of Public Prosecutions in decisions about the number of days for which people should be detained, so why is he now resisting the idea of the DPP saying whether there is a reasonable prospect for successful prosecution in respect of control orders?

For precisely the reasons that I have just outlined— what that might do to broader public protection, what it does in respect of resources and what it might well do to the interface between the decision on whether to prosecute an individual and the myriad of other potential prosecutions going on around it. The threshold test does not live or die on its own in this or any other regard; and alongside that is the notion that the prosecution is in the public interest. The interplay between the three factors is important. It is not to denigrate here or anywhere else the role of the DPP, but it is important to understand the interface between those three elements. I wholly appreciate the professional role of the DPP and, of course, the Crown Prosecution Service, to date and subsequently.

I believe that the right hon. Member for Suffolk, Coastal (Mr. Gummer) raised the question about the legitimacy, particularly the political legitimacy, of the process with the general population and the people who may be subject to these orders. Surely the safeguard is that people affected would have some sort of verification that someone in the process, such as the DPP, in whom the Minister invests a lot of confidence, was involved. Is that not only politically useful, but useful in respect of the utility of the process?

But I—or, rather, the courts—have already suggested that we are obliged to ensure that the review and monitoring of the prospects for prosecution are constantly kept under review. That is already an obligation imposed by the courts. It is the specifics of the certification by the DPP that trouble me in relation to the interface between resources, other prosecutions that may be germane and the very real risks relating to public protection.

On the Minister’s point about the DPP, I find it difficult to envisage circumstances in which it could be said that it was in the public interest to subject somebody to a control order, but not to prosecute them, when the evidence on which to do so was available. That is the first point. The second, which I would add in a spirit of being conciliatory to the Minister, is that I did not mention amendments Nos. 11 and 12. They are relatively minor, but they would deal with the introduction of some retrospective legislation, to which we profoundly object. We will vote against retrospective legislation even though we have no objection to what the Government are otherwise trying to do.

That is entirely fair, and I am grateful to the hon. and learned Gentleman for dropping me a note to explain that he was going to do that. I am happy with that.

In summary, in respect of where the House of Lords is now in view of the latest judgment—to be perfectly fair, it was not as clear as anyone would want in respect of article 5 or 6 or more generally—it is a sort of score draw for everyone. I have already said that I do not regard new clauses 10 to 15 as appropriate or necessary, given what the House of Lords has said about the process. I also disagree with my hon. Friend the Member for Hendon about the “dubious legality” of control orders overall, but it is right and proper for him to have tabled the provisions to allow us to discuss them. I repeat that it may seem churlish to be against new clauses 5, 6 and 7 and to resist the invitation to stay in emollient mood and carry on skipping happy-clappy into consensual uplands—that mood might even prevail tomorrow, who knows?—but I shall do so, not least because the absolute formulaic formulisation, if I may put it in those terms, of those new clauses does not aid the process of securing greater clarity and greater efficiency in the use of control orders in the way intended. That is true because of the obligations we are already under from the courts to do much of what my hon. Friend suggests.

That is not to say that if the amending provisions are not passed, what remains and pertains at the moment is perfect. With the gallant assistance of the courts, we are regularly getting clarity about what should or should not prevail in respect of control orders. I do not doubt that that clarity will continue irrespective of whether the new clauses are passed. In effect, the courts provide as useful a safeguard in the broader sense as possible in dealing with circumstances that I accept are, given the normality of the backdrop of our rule of law, abnormal. I do not doubt either that my hon. Friend the Member for Hendon will, with assistance at the other end of this building, ensure that these matters continue to be up for discussion. As I said at the annual review, given the unsatisfactory nature of control orders, it is right and proper that they should be. I am afraid, however, that I must in the end disappoint the House by resisting the amending provisions.

I gain the impression that my right hon. Friend is bringing his remarks to a close. I would like to press one final point on him—the question of whether it is appropriate to have a maximum period for a control order. I am not wedded to two years, which was simply the suggestion put forward by the Government’s own independent reviewer. We tabled the new clauses to allow Parliament to consider that, but let us remember that some of these people have been subject—without a criminal trial and without being found guilty of anything—to six years of control either in Belmarsh or under control orders. Does my right hon. Friend accept that, apart from in exceptional circumstances, there is a case for specifying a maximum length of time, or not?

In the broadest sense there is, but only within the context of everything else that is going on, rather than as an absolute. Given that we are talking about an unsatisfactory provision in the first place and that we are utilising such an unsatisfactory provision to deal with those who sit between the twilight zone of being fully prosecuted or otherwise, I do not see how, even with all the safeguards I have mentioned—monitoring and constantly reviewing prosecutions—there is anything magical about putting a limit of two years in statute regardless of wider public protection and public safety concerns that are part of the reason for the control order architecture in the first place.

I would rather get to the position implied by Lord Carlile of effectively having an operational norm and then going beyond it in respect of the number of years by exception, while concentrating more readily on the monitoring and evaluation of prosecution. We also need, as I mentioned at the annual review, a proper exit strategy for those who have had their order revoked, which has now happened, albeit only in a few instances. If we can get all the assorted paraphernalia of safeguards, monitoring and evaluation right, we could, as Lord Carlile suggested, think about having some nominal length of time for the order, but it is hard to equate putting such a provision in the Bill with wider public safety and protection considerations.

As with new clauses 5, 6 and 7, I am with my hon. Friend the Member for Hendon and his Committee in spirit, but not in respect of holding down the Government and the control order regime to an architecture of elaborate statutory provisions and responsibilities. In the end, that would only unpick the efficacy, such as it is, of the control order process in all its finest glory.

Although it has been a useful discussion, I must disappoint my hon. Friend and urge the House to resist new clause 5 and the other amendments in this group. However, let us keep discussing how we can collectively improve what I accept is an unsatisfactory process.

It being half-past Six o’clock, Madam Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

Question put, That the clause be read a Second time:—

The House proceeded to a Division.

Madam Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

Clause 4

record of removal

Amendments made: No. 47, page 3, line 23, leave out ‘as soon as is reasonably practicable’.

No. 48, page 3, line 23, at end insert—

‘( ) The record must be made as soon as is reasonably practicable and in any event within the period of 24 hours beginning with the time when the document was removed.’.—[Mr. McNulty.]

Clause 5

retention of documents

Amendment made: No. 49, page 4, line 24, at end insert ‘if satisfied that—

(a) the examination of the document is being carried out expeditiously, and

(b) it is necessary to continue the examination for the purpose of ascertaining whether the document is one that may be seized.’.—[Mr. McNulty.]

Clause 6

access to documents

Amendments made: No. 50, page 4, line 33, at end insert—

‘(1A) Where—

(a) a document is retained by virtue of section 5, and

(b) a request for a copy of the document is made to the officer in charge of the investigation by a person within subsection (2),

that person must be provided with a copy of the document within a reasonable time from the making of the request, subject to subsection (3).’.

No. 51, page 4, line 34, leave out ‘such a request’ and insert

‘a request under subsection (1) or (1A)’.

No. 52, page 5, line 1, after ‘document’, insert

‘, or (as the case may be) refuse to provide a copy of it,’.—[Mr. McNulty.]

Clause 7

photographing and copying of documents

Amendments made: No. 53, page 5, line 18, after ‘that’, insert ‘—

(a) a document may be copied for the purpose of providing a copy in response to a request under section 6(1A), and

(b) .’.

No. 54, page 5, line 21 [Clause 7], leave out ‘such copy’ and insert ‘copy under subsection (1)(b)’.—[Mr. McNulty.]

Clause 20

disclosure and the intelligence services: supplementary provisions

Amendment made: No. 55, page 15, line 33, leave out subsection (4).—[Mr. McNulty.]

Clause 24

post-charge questioning: England and wales

Amendment made: No. 57, page 17, line 12 , at end insert—

‘( ) The questioning of a person under this section —

(a) must be authorised in the first instance by an officer of at least the rank of superintendent, and may be so authorised for a maximum of 24 hours in total; and

(b) must subsequently be authorised by a justice of the peace, and may be so authorised—

(i) on initial application, for a maximum of five days in total (including the 24 hours mentioned in paragraph (a)), and

(ii) on subsequent application, for further periods each of up to five days in total.

( ) A justice of the peace 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, and

(b) that the investigation for the purposes of which the further questioning is proposed is being conducted diligently and expeditiously.’.—[Mr. McNulty.]

Clause 25

post-charge questioning: Scotland

Amendment made: No. 58, page 17, line 42, at end insert—

‘( ) The questioning of a person under this section —

(a) must be authorised in the first instance by a constable of at least the rank of superintendent, and may be so authorised for a maximum of 24 hours in total; and

(b) must subsequently be authorised by the sheriff, and may be so authorised—

(i) on initial application, for a maximum of five days in total (including the 24 hours mentioned in paragraph (a)), and

(ii) on subsequent application, for further periods each of up to five days in total.

( ) The 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, and

(b) that the investigation for the purposes of which the further questioning is proposed is being conducted diligently and expeditiously.’—[Mr. McNulty.]

Clause 26

post-charge questioning: Northern Ireland

Amendment made: No. 59, page 18, line 7, at end insert—

‘( ) The questioning of a person under this section —

(a) must be authorised in the first instance by an officer of at least the rank of superintendent, and may be so authorised for a maximum of 24 hours in total; and

(b) must subsequently be authorised by a justice of the peace, and may be so authorised—

(i) on initial application, for a maximum of five days in total (including the 24 hours mentioned in paragraph (a)), and

(ii) on subsequent application, for further periods each of up to five days in total.

( ) A justice of the peace 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, and

(b) that the investigation for the purposes of which the further questioning is proposed is being conducted diligently and expeditiously.’—[Mr. McNulty.]

Clause 44

sentences or orders triggering notification requirements

Amendments made: No. 62, page 31, line 18, leave out from beginning to end of line 22 and insert—

‘(i) imprisonment for life,

(ii) imprisonment for a term of 12 months or more,

(iii) imprisonment for public protection under section 225 of the Criminal Justice Act 2003;’.

No. 63, page 31, line 38, at end insert—

‘( ) In relation to a sentence passed at any time before the coming into force of section 61 of the Criminal Justice and Court Services Act 2000 (abolition of sentences of detention in a young offender institution, custody for life etc), subsection (1)(a) above has effect with the following modifications—

(a) in sub-paragraph (i), after “imprisonment” insert “(or custody)”;

(b) in sub-paragraph (ii), after “imprisonment” insert “(or detention in a young offender institution)”;

(c) in sub-paragraph (iii), after “imprisonment” insert “(or detention)”.’

No. 64, page 31, line 41, at end insert—

‘( ) imprisonment for life,

( ) an order for lifelong restriction under section 210F of the Criminal Procedure (Scotland) Act 1995,

( ) detention without limit of time under section 205(2) of that Act (punishment for murder for offenders under 18),

( ) detention in a young offenders institution under section 205(3) of that Act (punishment for murder for offenders aged 18 to 21),’.

No. 65, page 32, line 16 , leave out from beginning to end of line 18 and insert—

‘( ) imprisonment for life,

( ) imprisonment (or detention in a young offenders centre) for a term of 12 months or more,

( ) an indeterminate custodial sentence under Article 13(3) and (4) of the Criminal Justice (Northern Ireland) Order 2008,’.—[Mr. McNulty.]

Clause 52

period for which notification requirements apply

Amendments made: No. 66, page 36, line 32, leave out from beginning to end of line 36 and insert—

‘(i) imprisonment for life,

(ii) imprisonment for a term of 5 years or more,

(iii) imprisonment for public protection under section 225 of the Criminal Justice Act 2003;’.

No. 67, page 37, line 2, leave out from beginning to end of line 5 and insert—

( ) an order for lifelong restriction under section 210F of the Criminal Procedure (Scotland) Act 1995,

( ) detention without limit of time under section 205(2) of that Act (punishment for murder for offenders under 18),

( ) detention in a young offenders institution under section 205(3) of that Act (punishment for murder for offenders aged 18 to 21),

( ) imprisonment for a term of 5 years or more,’.

No. 68, page 37, line 20, at end insert—

‘( ) In relation to a sentence passed at any time before the coming into force of section 61 of the Criminal Justice and Court Services Act 2000 (abolition of sentences of detention in a young offender institution, custody for life etc), subsection (1)(a) above has effect with the following modifications—

(a) in sub-paragraph (i), after “imprisonment” insert “(or custody)”;

(b) in sub-paragraph (ii), after “imprisonment” insert “(or detention in a young offender institution)”;

(c) in sub-paragraph (iii), after “imprisonment” insert “(or detention)”.’

No. 69, page 37, line 20, at end insert—

‘( ) an indeterminate custodial sentence under Article 13(3) and (4) of the Criminal Justice (Northern Ireland) Order 2008,’.—[Mr. McNulty.]

Clause 71

offences relating to information about members of armed forces

Amendments made: No. 75, page 51, line 18, leave out from ‘about’ to ‘which’ in line 19 and insert

‘an individual who is or has been—

(i) a member of Her Majesty’s forces,

(ii) a member of any of the intelligence services, or

(iii) a constable,’.

No. 76, page 51, line 22, leave out ‘information of that kind’ and insert ‘any such information’.

No. 77, page 51, line 34, at end insert—

‘( ) In this section “the intelligence services” means the Security Service, the Secret Intelligence Service and GCHQ (within the meaning of section 3 of the Intelligence Services Act 1994).’—[Mr. McNulty.]

Clause 74

Control orders: meaning of involvement in terrorism-related activity

Amendment proposed: No. 11, page 54, line 8, leave out subsection (2).—[Mr. Grieve.]

Question put, That the amendment be made:—

Clause 28

Jurisdiction to try offences committed in the UK

I beg to move amendment No. 60, page 20, line 39, at end insert—

‘( ) In section 1 of the Justice and Security (Northern Ireland) Act 2007 (c. 6) (issue of certificate for trial without a jury), after subsection (6) insert—

“(6A) The Director of Public Prosecutions for Northern Ireland may not issue a certificate under subsection (2) if—

(a) the proceedings are taken in Northern Ireland only by virtue of section 28 of the Counter-Terrorism Act 2008, and

(b) it appears to the Director that the only condition that is met is condition 4.”.’.

With this it will be convenient to discuss the following amendments:

No. 111, page 20, line 39, at end insert—

“(6A) Where this section applies to an offence committed in Scotland, proceedings may only be taken in another part of the United Kingdom following consultation with, and with the consent of, the Lord Advocate.”.

Government amendment No. 9.

No. 112, in clause 30, page 21, line 14, leave out first ‘court’ and insert ‘jury’.

No. 79, in clause 33, page 22, line 13, after ‘property’, insert ‘in respect of’.

No. 80, page 22, line 14, after ‘which’, insert ‘the court is sure that’.

No. 81, page 22, line 17, leave out ‘had reasonable cause to suspect’ and insert ‘suspected’.

No. 82, page 22, line 22, after ‘which’, insert ‘the court is sure’.

No. 83, page 22, line 24, leave out ‘had reasonable cause to suspect’ and insert ‘suspected’.

No. 84, page 22, line 29, after ‘which’, insert ‘the court is sure’.

No. 85, page 22, line 35, after ‘which’, insert ‘the court is sure’.

No. 86, page 22, line 40, after ‘which’, insert ‘the court is sure’.

No. 87, page 22, line 43, after ‘property’, insert ‘in respect of’.

No. 88, page 23, line 1, after ‘which’, insert ‘the court was sure was’.

No. 89, page 23, line 1, leave out ‘is’.

No. 90, in clause 34, page 23, line 11, after ‘which’, insert ‘the court is sure that’.

No. 20, in clause 35, page 24, line 19, after ‘section’, insert

‘and where the court is satisfied on the balance of probabilities that the person is the owner or otherwise has an interest in anything which otherwise might be subject to forfeiture under that section and considers that it would be unjust to that person to make an order of forfeiture the court shall not make such an order but shall make such other order as seems to the court to be just.’.

No. 91, page 24, line 23, after ‘person’, insert

‘or on any person dependent upon the convicted person’.

No. 92, in clause 37, page 27, line 16, at end insert

‘and where the court is satisfied on the balance of probabilities that the person making the claim is the owner of or otherwise has an interest in anything which otherwise might be subject to forfeiture under this section and considers that it would be unjust to that person to make an order of forfeiture, the court shall not make such an order but shall make such other order as seems to the court to be just.’.

No. 93, page 28, line 2, at end insert

‘and where the court is satisfied on the balance of probabilities that the person making the claim is the owner of or otherwise has an interest in anything which might otherwise be subject to forfeiture under this section and it considers that it would be unjust to that person to make an order of forfeiture the court shall not make such an order but shall make such other order as seems to the court to be just.’.

These amendments relate to three distinct provisions in the Bill: UK-wide jurisdiction, aggravated sentencing and forfeiture. Clause 28 creates UK-wide jurisdiction for terrorism offences. A number of concerns about the clause were raised in Committee, and I hope that the House will agree that Government amendments Nos. 60 and 9 respond to those. It was pointed out fairly in Committee that there was at least potential for the provisions of Clause 28 to mean that an individual could be transferred to the Northern Ireland jurisdiction and fall straight under the non-jury trial provisions there. As I said in Committee, that was never the Bill’s intention on jurisdiction, which is why I undertook to examine the matter further.

Perhaps I may explain some of the background to this matter. The non-jury trial arrangements in the Justice and Security (Northern Ireland) Act 2007 are extremely narrowly drawn, not least in the wake of the peace process, which is happily unfolding. They are designed to deal solely with the residual risks to the administration of justice created by community and paramilitary-based pressures on jurors in Northern Ireland. Sadly, jurors in Northern Ireland remain vulnerable to threats to the safety of themselves and their families, and bribery and blackmail are used to influence jurors to reach particular verdicts. Those issues are exacerbated by the small, close-knit nature of communities in Northern Ireland, and they remain so acute that the special arrangements in the 2007 Act were put in place to ensure that fair trials could be delivered and that the safety of jurors could be protected. There is a presumption for jury trial in all cases, and non-jury trial will be available only in exceptional cases. That is the opposite of the Diplock arrangements, whereby the default was non-jury trial for certain offences. I have been told, nay upbraided, by the Home Office lawyers that I cannot call this Diplock by shorthand and that I must refer to non-jury trial.

A non-jury trial can take place only if the Director of Public Prosecutions for Northern Ireland issues a certificate on the basis that he is satisfied that one or more of the conditions in the legislation is met and, in view of that, there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury.

The conditions are the following: first, that the defendant is a member, or an associate of a member, of a proscribed organisation connected with the affairs of Northern Ireland; secondly, that the offence was committed on behalf of a proscribed organisation connected with the affairs of Northern Ireland; thirdly, that an attempt has been made to prejudice the investigation or prosecution of the offence by, or with the involvement of, a proscribed organisation connected with the affairs of Northern Ireland; and fourthly, that the offence was committed as a result of, in connection with, or in response to religious or political hostility—the serious sectarianism that still prevails, happily only in some small part, in Northern Ireland.

As the House will have noticed, the first three of the conditions are expressly limited to proscribed organisations connected to the affairs of Northern Ireland. Although the fourth condition implicitly refers to Northern Ireland, not least because it is in a Northern Ireland-related Act, it could be interpreted as allowing the transfer of cases to a non-jury trial in Northern Ireland where the terrorism is not connected to the affairs of Northern Ireland.

I appreciate that—rather laboriously—amendment No. 60 would thus ensure that a case could not be transferred to a non-jury trial solely on the basis of that fourth condition. In other words, a prosecution could be transferred from Great Britain to a non-jury trial in Northern Ireland only where it was connected to the activities of a proscribed terrorist organisation in Northern Ireland and where the other conditions set out in the 2007 Act and clause 28 were met. The likelihood of circumstances arising where all those conditions would be met is extremely low, and, as such, I believe that the amendment provides sufficient reassurance that a defendant could not be transferred to Northern Ireland under the jurisdiction provided by clause 28 with the result that he be tried without a jury—the Committee mentioned that—unless his offence was connected with a Northern Ireland terrorist group, in which circumstance we feel that it is appropriate to preserve the DPP for Northern Ireland’s discretion to provide for the trial to take place without a jury under the regime that has been put in place to take account of the particular challenges facing the administration of justice in Northern Ireland.

The non-jury trial system in Northern Ireland is risk-based, which means that only those cases where non-jury trial is necessary to ensure that the administration of justice is not impaired are tried by a judge sitting alone. I thought that the reasons outlined in the Committee’s debate were perfectly fair, and, as I indicated, it was not the Government’s intention to have people presented to a non-jury trial in Northern Ireland, erroneously or otherwise, in that context. The amendment is a laborious if elegant way—that might be a contradiction in terms—to get round that and to ensure that what the Committee did not want to happen does not happen.

Amendment No. 9 arises from the deliberations of the Committee. It proposes to remove subsection (7) of clause 28 to ensure that measures providing UK-wide jurisdiction for terrorist offences cannot have retrospective application. The Committee was, quite fairly, at pains to express that point. Although we could envisage a cross-border incident occurring before the jurisdiction provisions are implemented, that is unlikely, and if it were to occur there could be separate prosecutions, as at present. I am therefore content to remove the subsection, and I ask hon. Members to support the amendment.

If I may, I shall speak just to the Government amendments. I shall, of course, respond to hon. Members as they propose their own measures. I might, thus, have some time to get rid of this fly, which has been pestering me for the past half an hour.

First, may I say to the Minister, as I said earlier, that I welcome the Government’s important concession in amendment No. 60? He has listened to the concerns that were expressed, and I was happy to accept his assurances in Committee that the purpose of transfer to Northern Ireland was not to enable somebody to be tried there without a jury when the offence was of a nature that would have been tried with a jury here. I am grateful to him for having taken that on board.

I also welcome the fact that the Government have signed up to what was originally our amendment No. 9—it is now Government amendment No. 9—which removes the ability for there to be retrospectivity. I wish the Government had taken the same view on amendment No. 11, on which we voted only a short time ago, because the provision that it addresses is also completely retrospective in its application. At least half the cake is better than no cake at all in terms of removing the most objectionable little bits that surface in pieces of legislation.

I am conscious that the Liberals have tabled amendment No. 111, which seeks to ensure the concurrence of the Lord Advocate in prosecuting decisions. The Lord Advocate’s evidence to the Public Bill Committee made it clear that she did not consider that there was any requirement for concurrence in respect of the Lord Advocate, because she simply did not envisage that, given the conventions and the strength of the relationship between her office and those of the Attorney-General and the DPP, there was any requirement for it. Although I fully understand the Liberal Democrats’ motives for tabling the amendment, the Lord Advocate did not ask for such a provision and I would find it difficult to support something that is not being requested by the independent lawyer in charge of the prosecution service in Scotland.

I am not without sympathy for that latter point, and it will perhaps have more significance tomorrow than today. The relationship to which the Lord Advocate referred is a dynamic one, and significant changes in it have taken place within the past 12 months. Is it not sensible to make provision for the day when perhaps the relationship is not working, so that it is clear who has the final say?

I understand the point that the hon. Gentleman makes. Perhaps because I am a Conservative, I am a believer in conventions. If a convention appears to work and not to require further amplification, I am loth to interfere. The Government, of course, have been good at interfering with conventions and of throwing them in the dustbin of history, and that is regrettable.

It is worth noting that the Lord Advocate is somewhat unusual in that she has survived a regime change in Edinburgh. She has also survived a slight and subtle, but significant, change in her constitutional role.

Given what the Lord Advocate has said so emphatically, I would be loth to interfere. I appreciate the hon. Gentleman’s anxiety, and perhaps I can reassure him by saying that if there were to be a serious difference of view on an issue of the kind we are discussing, it would create a mini constitutional crisis and the House would have to return to the issue. The smooth running of constitutions depends on more than our getting a series of rules right. If an established relationship is so clear and self-confident—at both ends—that no one has ever seen a problem on which there has not been a meeting of minds, I would be loth to interfere with it.

The disadvantage would be that where a relationship works well without such a requirement—and is therefore seen perhaps as a pillar of the good working of our Union, which I support—I would not wish to see its having to be qualified with even the suggestion that it would require some statutory clarification in certain circumstances. For that reason, I would not support the amendment.

The Liberal Democrats have also tabled amendment No. 112, which would require a jury to determine the issue of terrorist connection. We debated this point extensively in Committee, and I can see the force of the argument. However, as a lawyer, I am mindful that such issues are currently resolved on the voir dire by the judge alone. I shall be interested to hear the Minister’s comments on the point, but I would be hesitant about interfering with that principle just because a case is a terrorist case.

Last, but by no means least, my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) has tabled several amendments on forfeiture, which are highly pertinent. He has not had an opportunity to develop those amendments, and I shall finish speaking and let him do so. I hope that the Minister will respond in detail to what he has to say, because the issues are relevant. We need to protect the individual and when passing such legislation we need to ensure that it works fairly.

I wish to speak in favour of the Liberal Democrat amendments Nos. 111 and 112, and to respond to the other amendments in the group. My hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) has already highlighted the reasons why we tabled amendment No. 111. Elish Angiolini has confirmed that the relationship is a good working relationship and she does not feel that the amendment is necessary, but the relationship is presumably dependent on the different personalities who are in post, and those can change to personalities that might work less well together. That is why we think that it is appropriate to include the need for consultation.

The logic of that argument is that we should also include a presumption that the Attorney-General must afford permission for any offence committed in England and Wales to be transferred elsewhere. Why not include that if one does not trust the relationship?

That may be a point that my colleagues in the other place may wish to pursue. However, we are discussing amendment No. 111, which deals specifically with the relationship with the Lord Advocate, which was also discussed in Committee.

It is not only the Lord Advocate who is no longer prepared to pursue this amendment. The Law Society of Scotland, which briefed all Scottish Members before Second Reading, thought that it was not appropriate. After listening to the evidence that the Lord Advocate does not think that it is the right approach, does the hon. Gentleman agree that Scottish legal opinion is settled on this issue?

The hon. Gentleman might be right. We will not press the issue to a vote and, as it is unlikely that we would be able to muster sufficient forces, we could not achieve a change in the law. The issue was raised in Committee and on Second Reading, and it was appropriate for us to raise it by way of an amendment tonight.

According to my speaking notes, we have the support of the official Opposition on amendment No. 112, although the hon. and learned Member for Beaconsfield (Mr. Grieve) said that it was an issue in which he was interested, rather than something for which he expressed his support. It would require a jury to establish whether there was a terrorist connection, rather than a judge. The purpose of the amendment is not to seek to undermine the principle that it is for the judge to determine the sentence. Clauses 30 to 32 deal with evidential questions, not sentencing, and that is why—

The point that I was making was that if there is a plea of guilty to an offence and there is a dispute about the factual basis of the plea—the same principle as someone pleading to an offence, but saying that there is no terrorist connection when the prosecution says that there is—it has historically been resolved by the judge alone. If the hon. Gentleman wants to make a case for departing from that principle in terrorist cases, he must view it in the overall context of how our legal system has resolved that issue generally and whether it would be justified to make an exception in the case of terrorism. I agree that it is an important issue, but I remain unpersuaded.

The difference in terrorist cases is the aggravating nature of the offence and the penalties that are associated with it—

Precisely that point arises on a plea of guilty to murder, for example. In the Criminal Justice Act 2003, the question of whether there are aggravating or mitigating considerations arises in the same form, and that is a matter for the trial judge on a plea of guilty and never a matter for a jury.

I am at risk of taking a series of interventions from learned Members who may be better briefed on this subject than I am, but there is still the important principle that terrorist offences are serious by their very nature and attract appropriate sentences. The purpose of the amendment is to ensure that a jury, rather than a judge, takes responsibility for clarifying whether there is a terrorist connection—

Is not the difficulty the huge elevation in tariff that is possible by applying the terrorist tag to an offence that would otherwise be relatively minor? That is the difficulty, and why those tasked as the finders of fact should be involved.

As the Minister said, my hon. Friend played a key part in Committee. His intervention is helpful in supporting our case for the amendment and clarifying the reasons for it.

I do not want to pursue the debate further. We support the clause as a whole and would like to see it amended in the way that is proposed. We support Government amendments Nos. 60 and 9, which we welcome. Again, they are evidence that the Committee stage has delivered positive changes to the Bill. Should the larger number of amendments at the end of this group be pushed to a vote, we would be inclined to support them.

Notwithstanding the interventions from a number of hon. and learned Gentlemen, there is an important principle here. As my hon. Friend the Member for Somerton and Frome (Mr. Heath) said, we think that the additional tariff for terrorist offences would warrant the passing of amendment No. 112, which we will seek to press to a vote.

The Minister spoke on Government amendment No. 60 and said that the non-jury court provisions in Northern Ireland were not, according to his notes, the Diplock courts. There have been changes in the past couple of years. The House passed legislation to do away with the emergency provisions in Northern Ireland in 2006 and then provided the Justice and Security (Northern Ireland) Act 2007 to bring back a number of those emergency provisions, including non-jury trials, essentially continuing the Diplock courts. They might have been on a different basis, but they were non-jury courts none the less.

The Minister referred to the fact that under the 2007 Act the DPP for Northern Ireland will issue a certificate deeming that there will be a non-jury trial. That certificate is not challengeable in a court or by a court. None of that is changed by the Government’s amendment. As the Minister said, the DPP has four grounds to use for a certificate and does not have to declare any of those grounds on the certificate. No one has any way of challenging it, judicially reviewing it or anything else. The person concerned, their lawyers, the general public and everybody else will not know which of the four conditions the DPP decided was satisfied and therefore warranted a non-jury trial.

The first condition arises if the accused is a member of a proscribed organisation or has at any time been a member of an organisation that was at any time proscribed. The DPP will make that judgment and nobody will know where it has come from, on what information it is based or even what the organisation might be. Condition two is that

“the offence or any of the offences was committed on behalf of a proscribed organisation”

or that such an

“organisation was otherwise involved with, or assisted in, the carrying out of the offence”.

Again, nobody will know any of the details. Condition three is that

“an attempt has been made to prejudice the investigation”.

Of course, there is the issue of whether someone is an associate of a member of a proscribed organisation, too. None of the conditions is changed by the removal of the fourth condition by the Government’s amendment. The fourth condition is that

“the offence…was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility”.

In so far as the amendment reduces the grounds on which the highly arbitrary certificates can be issued, we welcome it as a departure from the norm in Northern Ireland. It will mean that the DPP will no longer be able to issue such a certificate to demand a non-jury trial simply because the crime has been religiously or politically motivated.

That is a small, welcome improvement, but it does not take away from the fact that we still have continuity when it comes to Diplock courts. The Minister might say that his notes say they are not Diplock courts, but we cannot believe that they are not when they are non-jury trials determined for unchallengeable reasons. The certificates do not have to state any grounds or any evidence. Indeed, when the 2007 Act was being passed, the then Secretary of State, the right hon. Member for Neath (Mr. Hain), told us that the DPP could act simply on the basis of information given to him by the intelligence services. He even said that the DPP could simply say to the judge—the judge might want to ask in advance, and could be told privately—that it was based on certain information, but that nothing could be said or asked in court.

Although I welcome the fact that the Government have seen fit to chip away at one bit of the provisions for non-jury trial that they belatedly added to the 2007 Act, they do not go far enough. Of course, we have the odd situation whereby as a result of the legislation passed last year—and of this Bill, if it is passed—the DPP for Northern Ireland will be able to insist on non-jury trials on grounds that are completely secret and unchallengeable if a terrorist offence is related to the affairs of Northern Ireland, but if it is a wider terrorist offence, there will be an absolute guarantee of a jury trial. That is an odd anomaly to ask the people of Northern Ireland to accept. If the group is al-Qaeda, a jury trial will be guaranteed. However, it will be a non-jury trial if it is some other group, name and link unstated and unspecified, with no evidence produced in court, with the court not allowed to ask questions and with people left to think the worst—in fact, some hon. Members went so far as to want the 2007 Act to be amended to ensure that a court could draw an inference from the fact that a certificate had been issued. Clearly, Northern Ireland needs even more revision of the 2007 Act than the Government amendment provides. The amendment is a very limited improvement. It is welcome to that degree, but we need to see a lot more.

I am not in any way as hostile to or critical of amendment No. 9. We have a more chequered view of the amendments tabled by the Lib Dems and the Tories. I can see the sense of some of them, but I do not think that others necessarily add any significant improvement to the Bill. In fact, they might create some technical difficulties.

I want to address three matters. I shall begin with a comment on amendment No. 112, which was tabled by the Liberal Democrats. I agree entirely with my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve). Let us take a comparable case, which I cited to the hon. Member for Carshalton and Wallington (Tom Brake), namely one in which there is a plea of guilty in a murder case. The hon. Gentleman will remember that a schedule to the Criminal Justice Act 2003 provides an approach to sentencing with a starting point of 15 years and provides aggravating and mitigating circumstances. It is relatively easy to drive up the tariff, if I may so call it, to 30 years. In other words, there can be a huge variation between the starting point and the end sentence. That rather takes account of the point made by the hon. Member for Somerton and Frome (Mr. Heath).

The disparity can be great, yet on a plea of guilty the issue of whether there are sufficient aggravating factors to drive the minimum sentence up to the high figure of 30 years, for example, is exclusively a matter for the judge. There is no role for a jury in such murder cases. Given that, I find it hard to see why, as a matter of principle, we need a specific provision for the jury in a terrorist case in which there is a guilty plea, when we do not have one for the jury in a murder case. Therefore, I am inclined to think that my hon. and learned Friend the Member for Beaconsfield is entirely right on that point.

Does the right hon. and learned Gentleman agree that the point of principle should be decided together, and not simply be a matter of precedent? Is it right in principle that a matter of such importance should be dealt with by the judge and not by the jury, even in the murder case that he described?

The hon. Gentleman says that the point of principle should be determined on its merits and not be simply a matter of precedent, and I entirely agree. That is a perfectly fair comment, but I am not uncomfortable with having the essential decision made by the trial judge. The hon. Gentleman will also know that there are other precedents on which we can draw and that we must have regard to precedents in this area of the law—for instance, the Newton hearings are designed to determine the basis of a plea. We are on a slippery slope: if we adopt the approach advocated by the Liberal Democrats, we would soon find ourselves calling juries in to determine many matters that I believe are properly the province of the judge.

I hope that the Liberal Democrats will understand that I will not be supporting them on this matter.

Does my right hon. and learned Friend agree that we have come across this problem before, in a rather different form? Legislation on terrorism is at its best when it sits best with all other legislation. Is it being suggested that we should look at how this matter is dealt with in all the other, non-terrorism legislation? It would be very much better if this Bill were on all fours with all that other legislation, as that is how it will get the legitimacy that it needs so desperately. In that way, it will be possible to justify those of its provisions that differ from other legislation.

My right hon. Friend is entirely right, and I should like to make two points in response to what he has said. I am sure he is correct to say that we should try to treat counter-terrorism legislation the same as legislation that covers other serious crime and that, to the extent that we properly can, we should adopt an exceptional process for it. On the other hand, the hon. Member for Cambridge (David Howarth) is right to say that we should be willing to bring the other issues of serious crime into line with counter-terrorism legislation, if the merits of the argument point in that direction. However, my feeling is that that is best left to the judge, and it is for that reason that I shall not follow the Liberal Democrats’ advocacy on the matter.

I want to make two other points, and the first has to do with forfeiture. The House will know that there are very extensive powers of forfeiture in both the 2000 Act and clauses 33, 34 and 37 of this Bill. What standard of proof should the judge require before a forfeiture order is made?

A forfeiture order is a draconian measure. It is appropriate in many cases, but we must make sure that a court is satisfied beyond a reasonable doubt that the relevant criteria set out in legislation are satisfied before such an order is made. In a bid to pre-empt an observation that the Minister may make, I should say that I believe such a requirement should be in the Bill. It may be that the courts will have said in previous decisions that surety is a requirement, but we must say as much in legislation. The Minister will know that there was a case earlier this year in which the issue of aggravating circumstances in murder cases went to the Court of Appeal. That was the level at which it was decided that the judge involved had to be satisfied beyond a reasonable doubt: that decision was needed because the existing legislation did not suffice in that respect.

The right hon. and learned Gentleman rightly said that the proposed powers are draconian. The high penalty that forfeiture represents persuades me that the decision that elevates a minor offence to one with a terrorist connection must be taken by a jury. Given what he said earlier, I do not think he agrees with me, but does he accept that that is a point worth considering?

The hon. Gentleman makes a real point that I do not underestimate, and we all have to work out where we stand on the issue. All I can say is that I disagree, but I do not dismiss his argument as nonsense; it is not but, all in all, I prefer to leave such decisions to the judge. On this matter, reasonable-minded Members must agree to disagree and vote accordingly.

My final point featured in Committee as the “McNulty issue”, although I assure you, Madam Deputy Speaker, that we were talking about a wholly fictional character and not the Minister. Our debate had to do with forfeiture that is capable of affecting innocent third parties. The terrorism offences specified in the Bill are quite extensive, and I suggested in Committee that a garage proprietor had been convicted of one. In my story, the entirely fictional McNulty had lodged his car for repair with that proprietor and, unhappily—but as might easily happen in real life—his vehicle had been used in connection with a terrorism offence. I said that the prosecution authorities in the case sought a forfeiture order, and that Mr. McNulty was naturally very upset because it meant that he would lose his car. My amendments Nos. 20, 92 and 93 would ensure that the court would have to give Mr. McNulty ample opportunity to make representations, and that it would not make a forfeiture order if he could establish that he owned the car and show that such an order would be unjust.

One other short point in respect of forfeiture orders is worthy of note. When such an order is made against a convicted person, the court is directed to have regard to the impact that it will have on that person. Other considerations, such as the value of the forfeiture, must also be taken into account. I am anxious to ensure that the court should also have regard to the interests of any person who might be dependent on the convicted person. I have in mind dependent children, or an innocent dependent spouse. The interests of such persons are easy to disregard, but it is our purpose and duty to try to enshrine in statute law a proper protection for them.

I have set out the three issues to which I wished to draw attention, and I commend them to the House.

I shall not detain the House long, but I want to say a few words about amendment No. 111, to which my hon. Friend the Member for Carshalton and Wallington (Tom Brake) spoke.

The only objection to the amendment appears to be that, in evidence to the Committee, the Lord Advocate said that she did not feel it was necessary. I have worked with the hon. and learned Member for Beaconsfield (Mr. Grieve) on many Bills, and I have a high regard for him. I listened to him carefully, and I was struck by his apparent willingness to be just a little slapdash. He is famous for dotting i’s and crossing t’s—he often dots i’s and crosses t’s that the rest of us do not know are there to be dotted and crossed—but he was prepared to say earlier that the matter covered by the amendment could be left to convention and existing working relationships.

The point of which the House is not properly seized is that the clause adds a new, radical dimension to that relationship. The existing convention may at some future date simply be insufficient to deal with it. Where there are cross-border elements to the planning or execution of a criminal act, criminal procedure already allows for it to be tried in the most appropriate jurisdiction. That is well established, and it works in criminal courts on both sides of the border, week in and week out. The novelty is that the Bill will for the first time allow a crime that is wholly planned and executed in Scotland to be tried somewhere other than Scotland. The only occasion when that happened was the trial of the Lockerbie bombers. It took place in Holland, which, for the purposes of the trial, was deemed to be Scotland, so the idea did not work. Full account has to be taken of that novelty.

I take the views of the Lord Advocate exceptionally seriously. I hold her in the highest possible regard. As the hon. and learned Member for Beaconsfield pointed out, she has quite remarkably survived regime change. She was originally nominated to her position by a Labour-Liberal Democrat Administration, and was then nominated for a slightly different position by the incoming Scottish National party Government. It is reasonably well known in some circles that she was my first boss when I was a trainee solicitor. I find it very difficult to take issue with her views. However, having considered the terms of her evidence to the Committee, I do not think that what she said constitutes a barrier to the House agreeing to amendment No. 111, if it were pressed to a Division.

As I said to the hon. and learned Gentleman, the amendment will not create any particular barrier. If it is a codification of an existing convention, there is no harm in having it in the Bill. If the point came when a case was removed from the jurisdiction of the Scottish courts without the consent of the Lord Advocate, it would be not only a constitutional crisis, as one hon. Member said, but too late, because there would be absolutely nothing to stop it happening.

I appreciate the hon. Gentleman’s diligence on the issue, but does he not accept that the Lord Advocate is not alone in her opinion? It is shared by the Law Society of Scotland. There is no enthusiasm from the Scottish Government on the issue. It seems that only the hon. Gentleman and his colleagues are hell-bent on pursuing the issue. It really is time to give up.

My goodness, I never thought I would see the day when the hon. Gentleman became the voice of the Scottish establishment. There is a supreme irony in the fact that although Scottish National party Members are always chuntering and heckling away at the rest of us about how they are the only ones who will stand up for Scotland, now that there is a real challenge to the independence of the Scottish legal system, they are the first to roll over and give in.

We will not press the amendment to a Division, as it is pretty clear that it does not have the support of the House. However, in future it will be seen that we were right. It will be seen that it was the Liberal Democrats who stood four-square with the independence of the Scottish legal system, and that the SNP and the other parties conspired against it with the legal establishment.

May I say, unusually, what a profound displeasure it is to follow the rant of the hon. Member for Orkney and Shetland (Mr. Carmichael)? With the best will in the world, even he does not believe what he said. I stand four-square with the SNP, the Conservative and Unionist parties and all others in saying that he is looking for a bandwagon that simply does not exist. I have a document here that says “Stand up for Scotland”. What a load of nonsense.

I am absolutely astonished. The right hon. Gentleman’s colleagues from north of the border will be furious to see him giving such support and succour to the Scottish nationalists.

Okay, pantomime over. That is not the case at all. The hon. Gentleman is looking for an issue that simply is not there. To be fair, the Scottish press sought the same issue. To be absolutely fair, as my noble Friend Baroness Scotland and the Lord Advocate have said, it is not an issue. They say that not because they get on so well, but because of the absolute responsibilities of their respective offices. The measure is utterly redundant, as will I be if other Members keep knocking Opposition amendments with such guile and eloquence. I need add no more on the subject of the amendment on aggravated sentences, because it has all been said by assorted Opposition Members.

When it comes to bad pantomime dames, I will take lessons from the Minister. Does he not accept that the whole point of the Bill is that it fundamentally affects the total authority of the prosecution authorities? That is why some safeguard is necessary.

But the substance of part 3 addresses precisely that point, and we think that it does so in an entirely satisfactory fashion—and so does the Scottish legal establishment, as the hon. Member for Perth and North Perthshire (Pete Wishart) said, and most other parties in the House. I really do not think that this is an issue of substance.

On the points that my hon. Friend the Member for Foyle (Mark Durkan) made, I want to make it very clear that I am in no way amending the Justice and Security (Northern Ireland) Act 2007. I am not taking out that fourth limb, save in the context of clause 28 and the issues to do with jurisdiction. I have nothing but support for the Act, because it is a Government Act, but I am keenly aware that my hon. Friend has some difficulties with it. I just wanted to make that point clear. When I referred to Diplock, I was referring to the admonishments from my lawyers, who wanted me to stop calling this Diplock. That at least implies that I may have called it that before I was suitably admonished. I pass no comment on whether I was right or wrong.

I am not entirely sure what is left to be dealt with, save the amendments of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), which are important. I do not take them lightly. In the main, they are redundant and emphasise points that are already provided for in the Bill, but I can give a little hope to him: amendment No. 91 stands out from the array. I thank him for tabling it. The motivation behind it is clear, and he referred to it in Committee. He wishes to ensure that forfeiture of a convicted terrorist’s assets does not lead to injustice and unwanted consequences for his innocent family. Clearly, the Government share that motivation, and we discussed the point in Committee. The sting in the tail, as ever, is that we are not entirely happy with the drafting as there may be issues to do with who counts as a dependant. The term is not fully defined. I assure the House that I will take the amendment away for careful consideration, and intend to come back with a revised amendment of our own, because I do not think that the amendment is otiose or redundant. Most of the other arguments that he makes are perfectly fair, but they reinforce points already set out in the Bill or in law.

The right hon. Gentleman is being very helpful. He says that it should not be stated in the Bill that the burden of proof is “beyond reasonable doubt” because that is already set out in law. Would he be good enough to explain why he says that? I am not persuaded that what he says is the case; if I am wrong, so be it, but will he say why I am wrong?

At the risk of stating the obvious, “beyond reasonable doubt” is absolutely central to all that we do, in every part of the courts’ processes. I do not say that it is wrong to put it in the Bill; I simply say that it is redundant to do so as explicitly as the right hon. and learned Gentleman suggests. However, I take his point on amendment No. 91, and with his indulgence, I will take it away to look at it further.

The Minister is generous to give way to me, because I have not taken part in this debate. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) makes a good point, because normally when a forfeiture is made under current law in criminal courts, the standard is “the balance of probability”—that is, the civil standard, not the criminal standard.

I am not sure that that is the case. If we specified in the Bill that the judge must be satisfied beyond reasonable doubt, that could cast doubt not only on the burden of proof, but on the integrity of all other sentencing provisions. Our law is not littered with the phrase “beyond reasonable doubt”. It operates in part by convention and in part by statute, and to isolate the forfeiture provisions and add “beyond reasonable doubt”, which pertains anyway, could cast doubt on other sentencing provisions. Where there is doubt lies confusion, and where there is confusion, a pile of lawyers rush in and make a load of money out of it. That is not worth while, especially in such a sensitive area. It is well established that the test is “beyond reasonable doubt”. My brief says, “Leave well alone”. I shall not translate that into parliamentary language; the thrust is clear.

I commend Government amendments Nos. 60 and 9, and I am grateful for the broadly generous way in which the House has received them, notwithstanding the comments of my hon. Friend the Member for Foyle. I urge the House to resist the other amendments in the group, save for my assurance that I will take amendment No. 91 away for consideration. It refers to an issue that the right hon. and learned Member for Sleaford and North Hykeham has usefully brought to the attention of the House.

At the risk of giving the Minister some satisfaction, having listened to wiser counsel, and because of the wider implications of amendment No. 112, I suggest that although we can perhaps return to it in the context of a range of offences, we do not intend to press it to a Division tonight.

I am grateful.

Amendment agreed to.

Amendment made: No. 9, page 20, line 40, leave out subsection (7).—[Mr. McNulty.]

Clause 65

Certificate requiring inquest to be held without a jury: England and Wales

With this it will be convenient to discuss the following: amendment No. 33, page 45, line 23, leave out subsections (b) and (c).

Amendment No. 2, page 46, line 21, leave out clause 66.

Amendment No. 35, clause 66, page 46, line 34 , leave out subsections (b) and (c).

Amendment No. 3, page 47, line 30, leave out clause 67.

Amendment No. 119, clause 67, page 47, line 35 , leave out ‘Secretary of State’ and insert

‘Lord Chief Justice of England and Wales or the nominated senior judge’.

Amendment No. 37, page 47, line 36, at end insert

‘provided that such a person has been specifically approved for the purpose by the Lord Chief Justice of England and Wales.’.

Government amendment No. 70, page 47, leave out lines 37 to 40 and insert—

‘( ) The Secretary of State must establish and maintain a list of coroners eligible to be appointed under this section (“the approved list”).

( ) A coroner may be included on the approved list only with the agreement of the Lord Chief Justice of England and Wales or the nominated senior judge.

( ) A person may be appointed under this section only if—

(a) the person is—

(i) a coroner on the approved list,

(ii) a puisne judge of the High Court in England and Wales, or

(iii) a circuit judge, and

(b) the Lord Chief Justice of England and Wales or the nominated senior judge agrees to the person’s appointment.’.

Amendment (a) to the proposed amendment, line 1, leave out ‘Secretary of State’ and insert

‘Lord Chief Justice of England and Wales or the nominated senior judge’.

Amendment (b) to the proposed amendment, leave out the second proposed subsection.

Amendment (c) to the proposed amendment, in paragraph (b) of the final proposed subsection, leave out

‘Lord Chief Justice of England and Wales or the nominated senior judge’

and insert ‘the Secretary of State’.

Government amendment No. 71.

Amendment No. 120, page 48, line 32, at end insert—

‘( ) must hold the inquest in the same district,’.

Amendment No. 121, page 48, line 40, leave out ‘Secretary of State’ and insert

‘Lord Chief Justice of England and Wales or the nominated senior judge’.

Amendment No. 38, page 48, line 46, leave out from ‘to’ to end of line 47 and insert ‘the affirmative resolution procedure.’.

Amendment No. 39, page 49, line 1, after ‘may’, insert

‘, with the prior consent of the Lord Chief Justice of England and Wales,’.

Amendment No. 122, page 49, line 8, leave out ‘Secretary of State’ and insert

‘Lord Chief Justice of England & Wales or the nominated senior judge’.

Amendment No. 40, page 49, line 8, after ‘may’, insert

‘, with the prior consent of the Lord Chief Justice of England and Wales,’.

Government amendments Nos. 72 to 74.

Amendment No. 10, page 50, line 4, leave out clause 69.

The amendments all refer to part 6 and the provisions on inquests and inquiries. This is the first chance that we have had to debate these matters on the Floor of the House. Part 6 was tacked on to the Bill very late, and the first observation to make is that although the Bill deals with terrorism, the provisions in relation to inquests go way beyond mere terrorist cases—they are much broader than that.

My amendments Nos. 1, 2 and 3, which are tabled to give effect to recommendations of the Joint Committee on Human Rights, effectively delete the operative parts of part 6. Our argument is that those should be incorporated in the forthcoming coroners Bill and dealt with as part of the general reform of coronial law.

Article 2 of the convention imposes a positive obligation on the state to provide an adequate and effective investigation when an individual is killed as a result of the use of force, particularly where the death is the result of the use of force by state agents. The person conducting the investigation must be independent from those implicated in the events, and there must be a sufficient element of public scrutiny to secure accountability in practice as well as in theory. The inquest must involve the next of kin to the extent necessary to protect their legitimate interests.

The Bill provides a new procedure. The Home Secretary will be able to issue a certificate stating that the inquest should be dealt with rather differently, without a jury and with a special coroner if it is in the interest of national security or the interest of the relationship between the UK and another country, or otherwise in the public interest. Those are very broad exceptions indeed, going way beyond the issue of terrorism, as I said—and with no jury, but a specially appointed coroner.

The Government are tabling their own amendments to tweak details of the appointment of the coroner, but in practice they are a fig leaf. The Lord Chief Justice or another senior judge will approve the appointment of the people on the list prepared by the Secretary of State for Justice and the appointment of the individual coroner in a particular case, but will not deal with the key question whether it is appropriate to hold a special inquest in the first place. The Government say that that is an Executive function because the Secretary of State is privy to sensitive information and the overall intelligence picture, which the Lord Chief Justice is not, but there is no reason why he could not be in any individual case.

The Government’s response to our various reports and recommendations on the matter are, first—and this I find the most bizarre argument—that they will facilitate an independent inquest. Far from it. They say that they will allow an independent finder of fact to see all the material, that the office of coroner is an independent judicial office, that it would be incompatible if material central to the case were not considered, and that the investigation would have to proceed but could not if material could not be disclosed in open court.

First, if all that were true, which I do not think is the case, does it amount to a counsel of perfection? Secondly, the obligation is to provide an adequate and effective investigation and all those factors necessary for it. The proposals will not give closure to relatives; not give the public confidence that any lessons have been learned; not provide an adequate and effective investigation or the element of independence; not provide for public scrutiny; and not involve the next of kin—the four elements required by article 2, which I mentioned earlier. The Government’s proposals allegedly comply with the requirements of article 2, but they do exactly the opposite. They comply with article 2 not by a jot or tittle.

Is my hon. Friend aware that when Nicholas Blake produced a report given to the Government on the deaths at Deepcut barracks, he said that the families of the soldiers who had died should find their answers through the inquest system because the Government said that there should not be a public inquiry. Does my hon. Friend agree that under these provisions the families would never have found any answer to the deaths of their loved ones?

My hon. Friend makes an important point. The real question is whether the Deepcut cases would have ended up with a special inquest. If the Government resisted a public inquiry, one can only assume that they would probably have resisted an open inquest as well. She is right: in those circumstances, the families would have no closure and no knowledge of what had happened.

A further problem that would be faced by the families is that a coroner might, on the basis of closed material, return a verdict of unlawful killing. No prosecution could arise from that verdict of unlawful killing because the information that was crucial to that finding would not be available to the court. That illustrates the oddity of proceeding with these provisions before the issue of intercept evidence in court has been resolved in the way that the Judicial Committee of the Privy Council has recommended.

The right hon. Gentleman makes an important point. I agree.

What is proposed in part 6 is no more and no less than a system of secret inquests for exactly the sort of cases that should be held in the open, where the state is potentially implicated. Independence is essential in such circumstances, and a Secretary of State-appointed coroner, even with the fig leaf of the Lord Chief Justice or other official, would have no hope whatsoever of satisfying that independent test.

What makes matters worse, in a sense, is that the originating certificate is issued by the Secretary of State, who may very well have a departmental interest in not holding a public inquest.

The right hon. and learned Gentleman is entirely right. That goes to the heart of the question of independence, particularly if the Ministry of Justice is involved, the Secretary of State appoints the coroner and the case happens to involve a death in custody, or if the Home Secretary is the Secretary of State involved, and the case involves a shooting by the police, as in the de Menezes case, for example. One can think of a raft of examples in which, on the face of it, the Secretary of State may to a greater or lesser degree be implicated. It is not just a question of whether they are implicated; it is a question of justice being seen to be done, and if there is even a suspicion of implication, that undermines the whole concept of independence in the provisions.

I compliment my hon. Friend on his speech. In his capacity as Chair of the Joint Committee on Human Rights, is he aware of any current procedure that allows an inquest to be held in camera, or allows denial of evidence to be made public, or anything remotely similar to what we have at the present time? Does he know of any other European countries that adopt the system proposed in the Bill?

On my hon. Friend’s first question, public interest immunity certificates can be used, and I will refer to them shortly. I cannot help him with regard to the European experience, but bearing in mind all the arguments that we have had on the Bill about international comparisons generally, I prefer not to go down that route. If he has such knowledge, I will be happy to hear from him.

The hon. Gentleman touched on an important point, which is the lack of clarity in respect of who the Secretary of State is. One might have expected that if this was a judicial process, it would be confined to the role of the Lord Chancellor, even though I agree with the hon. Gentleman that there are problems there because the Lord Chancellor is also the Secretary of State for Justice and in charge of prisons, so there can be a conflict of interest. But the Bill, as it stands and even as amended by the Government’s proposals, does not specify that it has to be the Lord Chancellor and Secretary of State for Justice at all, which for me raises even greater anxiety about the fact that there seems to be a mixing of administrative and judicial process.

The hon. and learned Gentleman is entirely right. That is why I gave two different examples. My understanding, based on what I have read and not on what is in the Bill, is that the list will be maintained by the Secretary of State for Justice. The hon. and learned Gentleman is right that it is not in the Bill, but it should be, if we are to go down this route. I hope that it will not be because I hope that the House will agree to my amendments to take all this out. But if it is not the Secretary of State for Justice, one can only assume that it will be the Home Secretary and, in those circumstances a whole raft of other possible conflicts of interest and therefore lack of independence potentially arise.

The hon. Gentleman mentioned public immunity certificates in his response to the intervention of the hon. Member for Islington, North (Jeremy Corbyn), but am I right in saying that rule 17 of the coroners’ rules 1984 enable a coroner to direct that the public can be excluded from an inquest or any part of an inquest if he considers that it will be in the interests of national security? If that is the case, what we are debating as part of the Bill is completely unnecessary and totally over the top.

I thank the hon. Gentleman for that intervention. He is right, and it is a point that I intended to make later, but I am happy to have it made now.

The next comparison to make here is with criminal cases. We have criminal cases prosecuted before a jury and we have criminal cases prosecuted before a judge—not a specially selected jury and not a specially selected judge, but as part of the ordinary criminal process. In those cases, the Secretary of State cannot pick and choose his jury and cannot pick and choose his judge, even if they are dealing with sensitive security matters. All the terrorist trials that we have seen in the last several years have been conducted through the ordinary criminal courts, so why do we need a separate process for something that is rather less than a criminal trial—the inquest system?

We must remember that a criminal trial in a homicide case is, in effect, a substitute for the inquest anyway. An inquest will not normally follow a criminal prosecution for a homicide offence. The Minister may well say that in a criminal trial the prosecution always has the option not to proceed with a trial and it does not have that option in the inquest sphere, but I find it difficult to believe that we will find a case involving a terrorist that is not prosecuted because it is for the convenience of the Secretary of State to keep matters private.

What sort of cases are we dealing with? The European Court has looked at some of these. In the Mubarek case, Lord Bingham summarised the purposes of an inquest as follows:

“The purposes of such an investigation are clear: to ensure as far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”

This process does not provide any of that. The point that I would particularly emphasise is that this is not a counsel of perfection. Lord Bingham summarises it quite accurately by saying

“to ensure as far as possible”.

My understanding—it may be the hon. Gentleman’s—is that the reason why the Government suddenly came forward with these proposals was a problem encountered in one particular case, which interestingly enough is not terrorist related. Does he agree that the oddity is that the anxiety that the full facts should emerge in that one particular case, which is given as the justification for the change, seems in a way to be completely counterbalanced by the fact that even if the facts emerge correctly in that case and in the way that Government intend through this process, there will not be the transparency that will enable the verdict to be accepted?

The hon. and learned Gentleman is right. I was going to refer to the fact that I understood that this was all triggered by one case in which the inquest has been stalled. So we run the risk of creating this whole part of the Act, and this whole new superstructure, for one case. That one case is clearly very distressing for the family concerned because of the fact that they do not know what happened to their loved one, but this is a matter of convenience. As the hon. and learned Gentleman says, supposing that that one inquest is then allowed to complete, the family will still not know what has happened to their loved one. They still will not know whether the lessons have been learned. They still will not have closure on the case, so it achieves very little for those people anyway. It makes far more sense not to legislate in haste, but to look at this as part of the overall comprehensive review of the coroners Bill, which we know is coming in the next Session.

That family may have to wait an extra year—an extra year of distress. I know what it is like because, when I was in practice, I dealt with dozens of fatal cases, and every one is special to the family concerned, but every one of those families wants to have closure in one way or another, and this process will not deliver that.

What sort of cases are we talking about? Deaths in custody, such as the Mubarek case, perhaps, or the de Menezes case, the shooting at Stockwell tube station. That inquest has been adjourned and is due to reopen later this year. If the Bill goes through, will the Secretary of State issue a certificate in relation to that case before the inquest resumes, because the process can be triggered in relation to an already opened inquest—

Order. I am sure that the hon. Gentleman is well aware of the sub judice rules. He should be careful what he mentions at this stage.

I take your constraints, Mr. Deputy Speaker. I simply say that the inquest is due to reopen later this year and that people can draw their own conclusions.

This process could, for example, apply to the Deepcut barracks case that was referred to earlier, or the death of the service people in Iraq, all potentially an embarrassment to the Government and the Ministry of Defence, as we have seen from some of the inquest verdicts so far. They are precisely the sort of cases that should not be subject to this process, which should have the transparency required by article 2 and not be swept into the secret inquest process being proposed by the Government through part 6.

I agree with the hon. Gentleman that these are exactly the cases that should be given publicity. Even if one were to accept the premise that there are circumstances in which evidence could not be put before an inquest on the grounds of national security, has his Committee considered any possible reasonable interpretation of the other provisions that an inquest should be held in secret because of the interests of the relationship between the United Kingdom and another country, or this vague term

“otherwise in the public interest”?

Are we in the business of not holding inquests in order to save embarrassment to foreign princes?

The hon. Gentleman makes an important point. We have very interesting relations with Saudi Arabia, as we all know. Let us suppose that somebody died in Saudi Arabia in circumstances that might be embarrassing to the regime. Let us suppose that someone was even executed by that regime. In the end it could be very embarrassing indeed, and therefore we would have the inquest in secret.

We know that the jury will be excluded from special trials, and the implication is that the family will also be excluded and will not know what is going on. Are the family seriously expected to take the specially appointed coroner’s word for what happened to their loved one, which would extend only to what the specially appointed coroner could tell them? It is difficult enough for families to accept verdicts under the existing open system, given the number of challenges to coroners’ verdicts, and it will be more difficult under this process.

The hon. Gentleman has made an important point, namely that the family will have great difficulty in accepting the verdict of the specially appointed coroner. That difficulty will be aggravated by the fact that the specially appointed coroner will be appointed by the Secretary of State, who may have a departmental interest in the matter. In other words, the public may see the specially appointed coroner as the Secretary of State’s man.

The right hon. and learned Gentleman has made his point, and I do not disagree with it.

Juries are an essential part of the process. They are used in about 2 per cent. of inquest cases, which are the contentious ones—deaths at the hands of the police, deaths in custody, deaths in prison, health and safety cases and other matters to which I have referred. The situation is crazy, because the implementation of the process is unnecessary. Public interest immunity certificates apply to inquests, so, as has been said, the Government could persuade the coroner to withhold sensitive material or to exclude the public.

The use of PII certificates has been upheld in two cases against the United Kingdom, so it has been found that such restrictions are compatible in principle. In the case of Jordan v. UK, a father alleged that his unarmed son was shot and killed unjustifiably by a Royal Ulster Constabulary officer. When the European Court rejected a complaint about the frequent resort to PII certificates to prevent the disclosure of certain documents on the grounds of national security, it stated that

“the Court finds no indication that these certificates have prevented examination of any circumstances relevant to the death of Pearse Jordan.”

The best example is McCann v. UK—the death on the Rock case. The families of the three suspects shot dead by the SAS on Gibraltar alleged a breach of article 2 of the ECHR because of the use of PII certificates by the Government. If that incident had happened under the process in the Bill, it would be a prime candidate for the secret inquest process. At the time, the ordinary inquest process was used including PII certificates. Again, the Court rejected the complaint that the inquest had been an inadequate investigation, stating that

“it is not necessary in the present case for the Court to decide what form such an investigation should take and under what conditions it should be conducted, since public inquest proceedings, at which the applicants were legally represented…did in fact take place. Moreover, the proceedings…involved a detailed review of the events surrounding the killings…the lawyers acting on behalf of the applicants were able to examine and cross-examine key witnesses…and make the submissions they wished…The Court does not consider that the alleged various shortcomings in the inquest proceedings…substantially hampered the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings.”

A council of perfection is unnecessary; returning to the original test, what is important is that the inquest is held adequately. An inquest does not have to consider 100 per cent. of the evidence, because its purpose is to establish the cause of death, and the matters that I have mentioned would not be met by those arrangements.

The hon. Gentleman is making a compelling case against the Government. Does he agree that his remarks reinforce the point that the Government should withdraw the provision and await the publication of the coroners Bill, which will come before the House in the next Session? It makes more sense to take a long hard look at the situation, rather than rushing through a provision in this Bill.

That is my next point. Amendments Nos. 1 to 3 would ditch this part of the Bill, and I hope that the Government accept them. If we were to review the process in its entirety, we could examine PII certificates, the exclusion of the public and the role of the coroner in excluding evidence—we could even consider security- vetting juries. There is a series of other options that would enable an inquest to be held in public without going through the rigmarole of a secret inquest. The fact remains that the provision has nothing to do with terrorism; it concerns a secret system for investigating deaths that might be embarrassing for the Government, and that system cannot be allowed to stand. The measure is far too broad for inclusion in the Counter-Terrorism Bill, and it should wait for the publication of the coroners Bill. The situation will be difficult for the one family whose inquest has been stalled, but we should not legislate in haste to solve one case’s problems. Let us be sensible and throw out the provision.

I rise to support amendment No. 1, which is necessary and essential to preserve the integrity of the coroners’ courts system.

Uncharacteristically, I have a measure of sympathy for the Government, which I shall explain before I discuss why they have taken completely the wrong turn. I accept that the distinction between a coroner’s court and a criminal trial is that one involves an adversarial system from which the state can always withdraw itself, if it is so minded, whereas the coroner’s court involves an inquisitorial system designed to answer a certain number of questions. A coroner’s court does not include the option of not having an inquest.

In the light of the recent case where the inquest has been halted because the Government want to use intelligence material that is available to the police to present their case, I see that the Government have a problem. Some have imputed sinister motives to the Government given the way in which they introduced the provision, but I do not share that view. Faced with a particular issue—this is usual in bureaucracies—the Government have tried to find a solution, but they have failed to see the wood for the trees.

The Government have come up with a system that would immediately appeal to any Administration, because it seems to resolve the problem in a simple manner, but actually it will not meet the interests of justice. Leaving aside the way in which coroners are appointed—I will return to that issue, because the Government have made some sensible concessions, although they have not done enough to attract my support for the measure in its totality—the Government say that coroners need to use intelligence material in order to obtain a full understanding of the background circumstances to an individual’s death. They want to appoint a safe pair of hands, because that person will have passed all the necessary tests to handle such information and will come up with a fair conclusion based on the intelligence material and other facts.

As the hon. Member for Hendon (Mr. Dismore) has said, the difficulty is that such a verdict would be incomprehensible to the people most directly concerned. Such people would not have any faith in the verdict, because many of the building blocks on which it was made would have been kept secret from them. That is the issue with which the Government have to grapple. There will be the element of secrecy, and those secrets will be imparted to only one individual, however worthy and well appointed. Even with the Government’s safeguards on the manner of the appointment of the special coroners, absolutely nobody will be persuaded that there has been a fair process.

Having listened to what the Government said in Committee and, I might add, having had a briefing by Home Office and Ministry of Justice officials about the matter, I was in some ways quite sympathetic to the problem that the Government were facing. However, the more I reflected on the issue afterwards, the more convinced I became that I preferred a flawed and imperfect coroner system that was open over one brought in for these exceptional cases that turned out to be unacceptable to the people whom—in part, at least—it was intended to benefit; I am thinking of the relatives and others. Furthermore, such a system plainly would not provide public reassurance.

Obviously, my hon. and learned Friend’s discussions with Home Office and Ministry of Justice officials would have been totally off the record. However, did they give him any indication on why existing procedures and the existing situation were not sufficient to achieve the Government’s ends? That is what I find unfathomable.

The Minister may be able to amplify the position when he responds. I was left with a twofold impression. I hope that it is not unreasonable; the Minister will correct me if I am wrong. The first aspect was that a case had come to light—it had nothing to do with terrorism, I might add—in which there was a difficulty from the point of view of the state in having the inquest conducted; I emphasise that it was the state’s difficulty. In such circumstances, it would suit the state and the police if material likely to help explain the circumstances of a death could not be submitted—because it was intelligence-derived and would cause difficulties. Coupled with that was the fact that, given the problems in the context of terrorism and terrorist-related deaths, or other deaths, I detected that the Government saw a problem in trying to deal with that particular area, that that problem might grow in future, and that the problem was more germane to terrorism.

Also, any consequent legal proceedings—whether judicial review of the coroner’s decision or an attempt to mount a prosecution or civil action arising from the coroner’s verdict—would not have access to the evidence. Would not proceeding with the clauses before we have finished assessing whether we can use intercept evidence in court not make things even more absurd?

The right hon. Gentleman pre-empts me; he is absolutely right. What he says must be the case. The provision would solve the Government’s problem in that they would end up with a verdict with which they were satisfied. The coroner would say, for example, “I am wholly satisfied that the police were justified in shooting this person. These were the facts and circumstances and in addition material that helps me to come to that conclusion has been given to me.” However, it would do absolutely nothing to enable relatives to challenge that decision or bring civil proceedings. The other interesting consequence is that if the verdicts seem to suggest that a criminal offence has been committed, that may in many cases be impossible to prosecute because the intelligence material would not be admissible.

My hon. and learned Friend is making a point about the public acceptability of inquest decisions. He will have in mind the decision of Lord Justice Scott Baker that there should be a jury-based inquest into the death of Princess Diana. The reason was that, otherwise, the conspiracy theories would not be dispersed. The decision to have a jury in that inquest is the clearest possible evidence of the need to retain jury-based inquests in matters of public sensitivity.

I agree entirely with my right hon. and learned Friend. I hope that he will forgive me; in developing my arguments I have tried to treat the two issues separately. I was moving on to the question of the jury. Even if one accepted that in some circumstances we should dispense with the jury—although it is normal to empanel a jury for consideration of controversial deaths—and even if one accepted the notion that an individual should come to the decisions, the burden to be placed on that individual would make his job intolerable in respect of commanding any public acceptance. He would be explaining decisions in a partial fashion, but they would not stand on their own, precisely because, as the right hon. Member for Berwick-upon-Tweed (Mr. Beith) said, other consequences might flow from it and make it even more profoundly unsatisfactory.

That task would be made impossible if there were a process of certification through the Secretary of State, rather than through an application to the court, and if the specific coroner had been selected by the Secretary of State. Even under the newly improved appointment process, it cannot be right that a Secretary of State should decide who would be the most appropriate coroner to hear a case in which that Secretary of State had an interest.

I agree entirely with the hon. Gentleman; we come back to the rather administrative way in which the whole thing seems to have been put together. Reading the original proposals, one sees that this was an administrative process, with the Minister wholly controlling it—the choice of the coroner, the selection of the special coroner and the special certification—without any intervention by the judiciary.

Perhaps we can go back over the history of how coroners’ courts have always been distinct from other courts in our country. However, if there is a way forward for coroners’ courts, I am absolutely sure that it is to bring them into the mainstream of our court system. I say that irrespective of these proposals. To move down a road that starts on the premise that we will put into operation a series of measures that appear to exclude the judiciary almost entirely—except that some of the decisions could be judicially reviewed—would be completely wrong.

In fairness to the Government, I should say that, having been lambasted in Committee on the issue, they have attempted to start to try to restore the situation. I am the first to accept that there have been improvements to the Bill and these measures as a result, particularly in involving the role of the judiciary and the Lord Chief Justice more fully in approving the special coroners and in changing some elements of how the process would operate.

For all that, we are merely tinkering at the edges of the problem. The longer this debate has gone on and the more I have thought about it, the more convinced I have become that the Government have simply taken a completely wrong turning. If this debate fulfils a purpose I hope that it is to persuade the Government that we are not ranked up against them to try to give them a hard time on these proposals—leaving to one side what will happen to the provisions in the other place, which may well find itself not very happy—but we genuinely think that if they go ahead and succeed in putting them on the statute book they will be an albatross around their neck and that of any successor Government. My gut reaction is that the process will constantly be thrown back in their face by people saying, “We have here a system which is unworkable and doesn’t command public confidence.”

May I ask the hon. and learned Gentleman to reflect on a point that relates to the Scottish element of this matter? This relates to national security and the way in which intercept and intelligence material could be presented to a particular court, in this case a coroner’s court. The Bill is strangely silent on the parallel process in Scotland. There seem to be no provisions relating to the fatal accident inquiry in Scotland. I suppose that part of the reason for that rests with the minority Administration who now reside in Holyrood. They have ducked this issue as well and kicked their review of the fatal accident inquiry off into some time in the far distant future. That may add grist to the hon. and learned Gentleman’s mill, and I ask him to take it on board.

I very much take it on board. I hope that the Minister will provide an explanation of how the Government are approaching that. The situation is partly helped by the fact that Scotland has its own legal system, so mercifully, perhaps, we are not capable of interfering with it, or at least not interfering with it quite as radically as the Government might wish if they had the opportunity. This is a seriously flawed procedure.

Moving on to the issue raised by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), the jury system exists in coroners’ cases to give public confidence, and it works well. I have done jury cases in coroners’ courts, and in my experience juries are capable of taking in the evidence and giving verdicts that accord with the evidence. Indeed, the Diana, Princess of Wales inquest was a model of its kind. Although it was carried out in the most difficult circumstances, and was very costly, it appears to have commanded widespread public acceptance. A Lord Justice of Appeal was brought in because that expertise was required. All that was possible under the existing coroner system.

What is the point of suddenly dispensing with juries? As the hon. Member for Hendon said, it is possible to have specially vetted juries, to have public interest immunity certificates, and to treat these processes as ordinary hearings. I very much agreed with his point about the requirement laid down by the European Court of Human Rights, which is highly relevant—that is, to do one’s best in carrying out such inquiries, not to try to cross insurmountable obstacles. There is a considerable degree of understanding that there may be problems that make the evidence being presented to inquests inadmissible and one must do one’s best, in a human and fallible world, to come up with the best answers.

If we could get intercept evidence admitted in cases more generally, which we have frequently argued about, I have little doubt that we might start moving in the right direction on inquests just as on any other kind of trial. However, to try to create a short cut—with the best of motives, I am sure—is a mistaken road, and these proposals are not capable of being salvaged by anything that the Government can offer. We are expecting a coroners Bill. If we had a delay of a year while we went away and thought about what needs to be done and the Government came forward with other ideas and proposals in the context of their planned reforms to the coroner system generally, that would be a sensible approach. Legislating quickly and repenting at leisure is a big mistake.

I will listen with great care to what the Minister says. I have no animosity towards the Government on this issue. I can see that they have a real problem, but the answer that they have come up with is profoundly and fundamentally wrong. This House has a major responsibility in upholding confidence in the law and the rule of law and in ensuring that deaths are properly investigated, particularly where there are issues of sensitivity surrounding possible state intervention, and it should not have anything to do with a set of proposals that will ultimately bring the Government into disrepute.

I listened with great care to my hon. Friend the Member for Hendon (Mr. Dismore), who made persuasive and cogent arguments on this important issue. He started by explaining the purpose of an inquest and asked what the purpose is of finding out the facts about a death if the circumstances are then to be kept hidden. The Government need to explain that key point in moving ahead with these provisions.

On Second Reading, I made the point that such issues should be debated when considering the coroners Bill. Since then, I have had the opportunity to examine the Committee reports regarding these provisions. In Committee, the Minister explained that he wanted to look at one particular case, and he feels that the provisions are the way to deal with it. We of course cannot know what that case is, but I do not question the fact that the Government want a way out of a problem, and are moving to solve it.

One of the issues that the Government must face is that most of the families affected by coroners’ inquests will be asking who else will be included in the remit of these provisions. Will loved ones be a part of it, or will they, too, fail to get the clarity and answers that they require? As has been said, many families who lose loved ones and attend a coroner’s inquest know that they will not get all the answers, but at least they will have an opportunity to hear the evidence, and the coroner can then make some determination, even if it is an open verdict or a verdict of death by misadventure. If they are not there, they do not even have that small solace.

I would like my right hon. Friend the Minister to address the issue from the family’s point of view. If it is decided that a coroner’s court will meet without a jury in special circumstances, what information can be given to the families so that they have details of what has happened? I mentioned the Deepcut deaths. I chair the all-party group on Army deaths and I have met the Deepcut and Beyond families. We have had coroners’ inquests under article 2 procedures with juries, and families have learned so much more from them. Even if they do not get a final answer, at least they are getting some answers. Recently, we had the second inquest into the death of Private James Collinson, and after that the families at least felt that their concerns had been listened to, which is what they want. Sir Nicholas Blake, in his report for the Government on the Deepcut deaths, saw coroners’ inquests as the way forward for those families and others. How can the Minister take forward families’ heartfelt wish for clarity and for closure, if they can find it? Will they be entirely excluded from the procedure or, in certain circumstances and with caveats, will information be released to them to satisfy their needs?

When it comes to Army deaths, I wonder how the boards of inquiry, and the fatal accident inquiries in Scotland, will link with secret coroners’ courts. The Army is increasingly involving families in boards of inquiry, sending them transcripts so that they have some idea of what happened in that internal inquiry. If an Army death is to be the subject of a secret inquiry, how will the BOI process link with that?

I appreciate my hon. Friend’s great knowledge and her involvement in the issue, but I must correct her on one point: fatal accident inquiries in Scotland do not need to inquire into deaths abroad—in fact, they are precluded from doing so. There needs to be a change in the law in Scotland to deal with the point that she raises, but that is being ducked by the current Administration in Scotland.

I thank my right hon. Friend for that. I do not pretend to understand English law, let alone Scottish law. I am a non-lawyer. However, many of the deaths looked into by the families involved in the Deepcut and Beyond campaign happened in this country in peacetime. I doubt very much whether those deaths would fall within the remit of clause 65, but the problem is that we do not know, because it is drawn so widely. I therefore seek reassurances from my right hon. Friend the Minister that he will address the needs of those families.

Is not the point that my right hon. Friend the Member for East Kilbride, Strathaven and Lesmahagow (Mr. Ingram) made, about the possible anomaly created by the law that the Bill would introduce and the situation in Scotland, an argument for the withdrawal of the relevant provisions, so that everything can be considered properly in the context of the coroners Bill?

My hon. Friend makes an interesting point. On Second Reading, I argued for the withdrawal of the relevant provisions. However, I have read what was said in Committee and I hear what the Minister said about a special case that needs to be addressed in a special way.

I will accept what the Minister said, but if the Government are not going to withdraw clause 65, they need to consider what will happen when the coroners Bill finally comes before the House. We could be here debating the issue again in a year’s time. The Government will be looking into the wider parameters of the coroners Bill, because there are many problems with the coroners system and huge delays. Indeed, I know of a peacetime death in barracks in this country that happened five years ago next month that has still not been the subject of a coroner’s report. Things therefore have to move on.

Can the Minister give me any assurances that when the coroners Bill comes before the House, we will have an opportunity to engage with the issue again? What we are debating today will have consequences for the coroners Bill. If the Government do not withdraw clause 65, there will be an opportunity over the next few months to learn the lessons of this special case and see how it could be better addressed in a wider review and restructuring of the coroners system.

Finally, paradoxically, many families involved in Army deaths want special coroners, but they do not want them in the circumstances that we are discussing. I have spoken to individuals in the Royal British Legion and to the families involved in the Deepcut and Beyond campaign. They admire the work done on Army deaths by the Oxfordshire and Wiltshire coroners, who have built up a huge amount of expertise. If we are going to have special coroners, they should bring expertise and particular skills to a situation, not secrecy.

I therefore welcome the Government’s amendments to introduce a role for the Lord Chief Justice, but there are still too many questions unanswered. I read what my right hon. Friend the Minister said in Committee, but he needs to give a lot of reassurances about the breadth of the provisions that we are debating, particularly to the bereaved families who want answers, and about how we can take the matter forward when we debate the coroners Bill.

It is a great pleasure to follow the hon. Member for Blackpool, North and Fleetwood (Mrs. Humble), who made a number of very important points. On this issue, it is also a pleasure and honour to follow both the hon. Member for Hendon (Mr. Dismore) and the hon. and learned Member for Beaconsfield (Mr. Grieve), who made devastating cases against part 6, which manages to be simultaneously repugnant, unnecessary, ineffective and premature.

Part 6 is repugnant because it violates the principle of the separation of the powers. It is unnecessary because the means for effecting most of its ends—public interest immunity and the power of the coroner—already exist to allow the public to be excluded on grounds of national security. It is ineffective because, as the hon. Members for Blackpool, North and Fleetwood and for Hendon and the hon. and learned Member for Beaconsfield have already demonstrated, this system will not bring about closure for the relatives, who will not know the basis on which the decision has been made. From their point of view, the uncertainties will continue. It is premature because it is wrong to decide these issues before we know the full structure of the coronial system that the coroners Bill will set up and before we know the final resolution of the issue over the admissibility of intercept evidence in all forms of procedure.

I accept what the hon. and learned Member for Beaconsfield said—that the origins of these clauses may not have been badly motivated. There is a case—we do not know the details, but we know the outline—for saying that there have been blockages because of how the present system works, but that does not justify where the Government have ended up, because they have ended up with a system that grants extraordinary powers to the Secretaries of State.

I also accept what the hon. and learned Member for Beaconsfield said about coroners being different and about the system being one of investigation rather than an adversarial conflict between two sides in court. That means that the state, in the form of the prosecution service, does not have the power to withdraw a case. Nevertheless, the issue of the relationship between the investigatory arm of the state in general and the Government is raised here.

The hon. Gentleman must be aware that under clause 65 the Government in power would be able to intervene during a case and suspend the jury; indeed, they could suspend the whole investigation, which I would have thought set an extremely dangerous precedent in any circumstances.

It is extraordinarily dangerous. I know of only one other provision that allows the Government to interfere in some way—although this has been disputed—with an investigation in progress. This is the superintendence power of the Attorney-General over the director of the Serious Fraud Office in respect of its investigations, which was notoriously used in the BAE case. That is the only other example that I know of. These issues are up for grabs in the draft Constitutional Renewal Bill. Why the Government are bringing forward yet another example of something that even they admit in that Bill, which proposes reform, to be wrong seems to me quite extraordinary.

The hon. Member for Hendon pointed out that only 2 per cent. of inquests end up before a jury, but that 2 per cent. is the crucial 2 per cent.—the 2 per cent. that consider deaths at the hands of agents of the state. At times in the debate, the Government’s response to those of us who are deeply troubled by what they are doing has been to say that worrying about it reveals one to be a paranoid conspiracy theorist or an obsessive. It seems to me that that is not the case at all; it is perfectly reasonable to be worried—[Interruption.] The Minister chunters that no one said that, but when I read the Committee report, I thought that his treatment of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) was of exactly that nature.

It seems to me that we have examples before us that we should all worry about. The hon. Member for Hendon mentioned one of them, and we need to be careful about mentioning matters that are sub judice. It is clear, however, that mistakes are made by agents of the state—perhaps more than mistakes on occasion. There is always a temptation for the state to cover up its own mistakes.

Much has been made of the crucial issue of public confidence. It is important that the public have confidence in the investigative system and public authorities, but more is at stake. The jury and the coronial system are a counterweight—a deterrent—to the temptation to abuse power in the first place. That is why the Government’s proposal is fundamentally wrong.

The Government’s proposal is breathtaking in removing the jury from the case merely through a certificate of the Secretary of State—that point has been raised only peripherally so far, but is crucial to understanding why the proposal should be resisted. The basis of national security, relations with a foreign power and public interest is enormously broad—in particular, relations with a foreign power and being generally in the public interest seem to leave virtually nothing that could not be used to justify exclusion.

To build on the hon. Gentleman’s comments, is there not an important general principle that it is surely offensive, to law and probably to the European convention, to allow an interested party—the Secretary of State—to decide the forum and the means by which that person’s liabilities could fall to be determined?

That is a very important point. For example, in a case of a death in custody, if the Secretary of State for Justice, who is responsible for the prison system, were to exercise such powers, he would in effect be a judge in his own cause. We do not need the Human Rights Act to be worried about that; a fundamental principle of the common law is at stake. The Secretary of State is not independent.

The hon. Member for Hendon was right to say that these provisions have nothing inherently to do with terrorism. They include any case of the kind just mentioned. The provision that the simple certificate of the Secretary of State is enough to decide that the jury should no longer sit is almost arrogant in its brutality. On that model of thinking, the Government decide the public interest, and nobody else need apply. If it were a matter of national security, one could understand why that might be the case. However, the provision applies not only to matters of national security but to relations with a foreign state and anything else that might be in the public interest.

As the Government want to resolve the problem—as the hon. and learned Member for Beaconsfield said, it is a serious problem—they need to do so in such a way that the Executive do not just decide the matter for themselves. They should need to apply to an independent court in some way, so that the decision could be challenged and the relatives could appear before the court and say, “No, there ought to be a jury.” The Government ought to have to persuade somebody that there is some necessity for such action. The Government’s current proposal requires them to persuade nobody. All it requires is the Government to decide for themselves that it would be convenient for them not to have a jury. That is only half the proposal; the other half concerns the special coroner. There is a Government amendment on the subject, but, as other Members have said, it is a fig leaf. It is not sufficient.

It was originally proposed that the coroner should be hand-picked by the Secretary of State. That represents an amazing violation of the separation of powers, and an astonishing violation of constitutional principle. A politician deciding which judicial officer should be responsible for an individual case? I cannot think of a worse violation of principle. It is a rule that would delight Robert Mugabe, and would probably get him into trouble. It is also the most dangerous of dangerous principles, subverting a basic rule of the constitution and a basic principle of the rule of law.

The Government amendment brings the Lord Chief Justice into the picture. It suggests that there should be an approved list of possible special coroners, and that the Lord Chief Justice must agree to any name included in the list. It also allows the Lord Chief Justice a veto when a particular person is chosen, but that is not enough. The right of initiative, throughout the system, still rests with the Secretary of State. Although people can be blackballed by the Lord Chief Justice, only the Executive can propose anyone. That too strikes me as a fundamental violation.

Is there not a third point, which was touched on by the hon. Member for Islington, North (Jeremy Corbyn)? The Secretary of State can revoke an appointment. As such a revocation would be profoundly damaging to the career prospects and reputation of a specially appointed coroner, it might well concentrate his mind in favour of the Government.

I agree. In fact, those provisions are quite confusing. The special coroner can be removed for misbehaviour—it should be asked in that context who decides what constitutes misbehaviour, and on what grounds—or can be effectively removed through revocation of the certificate. The question then arises whether a new certificate can be produced for the appointment of a new special coroner, thereby removing the first special coroner without having to prove misbehaviour. The scope for abuse seems to me very broad.

If the Government insist on embarking on this route, the least they should do is remove the Secretary of State entirely from the process of choosing the special coroner. That is the intention of amendment No. 119, which suggests that the coroner should be chosen by the Lord Chief Justice rather than the Secretary of State. I oppose all these provisions, but at the very least the Government should concede that principle.

I support amendment No. 1 and hope that it will succeed, along with the subsequent amendments to remove the rest of part 6. If those amendments are not passed, I hope that amendment No. 119 is pressed to a Division. Ultimately, however, these are mere details. On an earlier occasion, I was interested to know whether there was any constitutional principle that this Government would not violate for the sake of their own convenience. I think that in these provisions we have our answer.

I am delighted to follow the hon. Member for Cambridge (David Howarth) and to support amendment No. 1, along with amendments Nos. 2, 3 and 10.

Clauses 65, 66, 67 and 69 are simply wrong; they are wrong in terms of the process that produced them, they are wrong in principle, and they will do wrong in practice. They are wrong in process because they came out of nowhere and were smuggled into a counter-terrorism Bill; the Government hoped to smuggle through these very controversial changes under the cover of the other controversies associated with the Bill that are more prominently featured in the media and elsewhere.

The Government have told us all along that they wanted to create a consensus on counter-terrorism, and they went to some lengths to create all sorts of dialogues and discussions, although that did not particularly include the Northern Ireland parties, which I can understand in the prevailing circumstances. However, there was no consultation on the provisions before they appeared in the Bill, and since this matter was last discussed in the House there have, of course, been additions. Clause 66 will now extend some of the provisions on inquests to Northern Ireland, which was not previously the case. That clause 66 has been added to the Bill as an afterthought again shows how ad hoc the provisions are—it landed out of the blue in Committee.

Public consultation is a legal duty in Northern Ireland. I hope that the Minister can clarify whether there was any consultation on this measure. Was there consultation with any of the Northern Ireland parties? Was there consultation with the Assembly? Will there be? Has there been consultation even with the Office of First Minister and Deputy First Minister?

These sensitive proposed changes might give rise to a number of serious implications and complications regarding the devolution of justice and policing. Let me ask a simple question: to whom would the proposed powers be devolved in the event of the devolution of justice and policing—or will the Government insist that they should still reserve the powers to themselves on the grounds of national security and relations with other Governments? If that is the Government’s view, it is a serious issue. Northern Ireland Office Ministers have been telling this House how wonderful agreements and consensus have been reached in the Committee of the Northern Ireland Assembly that was looking at issues to do with the devolution of justice and policing, and at the detail of the exact scope of the powers to be devolved and how they might be devolved. Yet the Government have now—wham, bam—thrown in this grenade, when the Prime Minister has personally been involved in talks including the new First Minister and Deputy First Minister to try to resolve some of the difficulties in the devolution of justice and policing.

I hope that the Minister can provide some explanation or clarification, and if there has not been proper consultation or consideration I ask the Government to think about using that as at least one of the grounds on which they might consider withdrawing some or all of the clauses to allow for wider developments and for wider and proper discussions of all these issues later in the context of the coroners Bill. Those discussions would then take place with our knowing about the issues raised for Scotland and Northern Ireland, and we could address all the other fundamental points that Members have been expressing in this debate.

Why this scramble? Why do that rather than await the coroners Bill, which the Prime Minister promised us when he made the statement on the legislative programme only a matter of days ago? If that new process introduced by the Prime Minister is to mean anything, we should properly respect that promised Bill and all eyes and all work should be focused on it, rather than try to piggyback in a grotesque way fundamental issues to do with coroners’ courts into a counter-terrorism Bill, when the powers in respect of coroners’ courts in the Bill are not restricted or confined to what could be defined as terrorist cases. Other hon. Members have made the point that these powers, which would apply UK-wide, could apply in cases of custodial death, military death or death in circumstances of pursuit or controversy, and in all sorts of health and safety cases where issues of negligence or malice might well arise, or be felt or suspected. Inquests are about affording families and the wider public a sense of truth and at least some basis of understanding. We cannot simply pat victims on the shoulder and then shrug our shoulders when it comes to their need for truth, understanding and a sense of justice, yet that is what we are getting in the Bill.

The breadth of the powers in the clauses is striking. The Secretary of State will be able to remove a jury and a sitting coroner on almost limitless grounds—national security; relations with any other Government, no matter how bad their repute; and the public interest—to be defined at the whim and with the private knowledge of Ministers, but to be undisclosed and unexplained to the public, as ever. In short, the discretion is unlimited and untrammelled. The Secretary of State will have the power to sack juries and coroners if and when he likes. It is the Secretary of State who will have that power, not a judge, who makes a decision after hearing submissions from parties. A politician will control what this special area of the judicial branch of the state is to do. So much for the independence of the judiciary.

It is not just any politician who will have this power, but one who will too often have a conflict of interest, as other hon. Members have said. Juries are required in inquests when there may have been wrongdoing or negligence on the part of the state, yet who will get to decide whether there is to be a jury? Who will get to decide whether to step in and put a stop to a certain coroner and jury if they do not like the way in which an inquest is going? Who will get to decide whether to appoint a select special coroner of their own? The answer is the Secretary of State, and that is a fairly breathtaking reach on the part of any Executive.

As far as I am aware, the vast majority of jury coroners’ inquests take place where the death involves the operations of an arm of the state—the military, the police or some other body—so the power is not just one of appointment; it is specifically a power of appointment where the state itself is involved.

The hon. Gentleman reinforces the point that a number of hon. Members have made. The state might have issues to cover up or its own interests or those of its agents to protect, and it is in a position to do so. It is even in a position to protect the agents of another state, no matter how unworthy that other state might be. That is the kind of law that this Parliament is being asked to approve tonight. The Secretary of State will not only be able to sack the sitting district coroner and the jury and take an inquest off them; if he so wishes, he will be able to sack the special coroner and then appoint another one. That is how far the Government have gone on this issue.

I am not sure that I could fully agree with the hon. and learned Member for Beaconsfield (Mr. Grieve) that this is just some messy lay-by that the Government have stumbled into. They seem to be going some distance with these proposals; they have worked their way around the board, passed “Go” and collected £200. I find it hard to believe that the Government have got lost here. They have ended up somewhere where they get all the control and hold all the cards when it comes to inquests. How real is the supposed veto that the Lord Chief Justice would have? That is a cosmetic move by the Government, because it would be almost impossible for the Lord Chief Justice to exercise the veto without causing huge controversy and difficulty. In reality, the Secretary of State will get to choose whom he or she wants.

Yet again, we witness the right to a jury being stripped away. The Minister earlier stressed that the non-jury courts in Northern Ireland will no longer be Diplock courts, because they will have a different legislative basis, However, clause 66 means that we will not only have continuity Diplock courts, but Diplock inquests, in which juries will be prohibited on the say-so of the Secretary of State in cases in which they would otherwise be involved. Juries could even be, in effect, sacked.

What message does that send to the families whose loved ones’ deaths are the subjects of the inquests? What message does it send out to jurors, who are responsible, law-abiding citizens who are prepared to play their role and do their civic duty on a jury? How would they feel if, for reasons unexplained, they were suddenly sacked and disposed of? It would be a scandal if that were to happen in any case, but we are told that this is a matter of administrative convenience and could be done for diplomatic comfort, for the sake of relations with other countries. It will certainly be for the convenience of those who have something to hide or who want to hide something for others.

If the Secretary of State is going to go so far as to remove the jury and if we have measures to control the business of inquests in terms of secrecy, is it too far fetched to worry that the next step will be to exclude the press and families, or even everyone? That is the dangerous logic of where this is headed, and that is why the Government need to put a halt to it now and leave such matters to the anticipated coroners Bill. It is entirely wrong that we face the prospect of the Secretary of State acting as the puppet master in inquests in which, as my hon. Friend the Member for Islington, North (Jeremy Corbyn) pointed out, the state may have much to hide. In some cases, the state may have little to hide but will still go to these offensive lengths to hide it. That must not and should not be done.

Inquests must meet certain standards, as Jordan v. UK, Edwards v. UK and other cases that have been taken to Europe have made clear. The first standard is that they should be independent, both institutionally and in practice. How does that standard sit with one side in the proceedings having the power to sack the jury and choose the coroner; to sack that coroner and choose another one, and to control what happens with secrecy?

Inquests must also be capable of leading to a determination of responsibility and the punishment of those responsible, yet in Northern Ireland there is no possibility of bringing a verdict of unlawful killing. Another standard is that inquests must be prompt, yet there are cases in Northern Ireland in which inquests into murders in the 1980s—there is even one in the 1970s—still have not happened. We still have 20 inquests outstanding involving 30 deaths from the troubles.

Inquests are meant to allow for sufficient public scrutiny to ensure accountability. With the jury sacked and, I have no doubt, with other powers and restrictions to come, that is clearly on the wane. Of course, inquests must allow the next of kin to participate, yet that too is under threat from the direction of travel that the Government are taking. Hon. Members should be in no doubt that these powers will be not only used, but abused.

Let me give an example of a case in Northern Ireland. Roseanne Mallon, a 76-year-old woman, was shot dead by loyalists in 1994. Her sister was shot, too, and she took a civil action against the Ministry of Defence. In the context of that action, by some miracle, she discovered tapes held by the Army that revealed that her house was under observation by members of the Special Air Service—the SAS. They saw the loyalists arrive at the house and saw what was happening. In fairness, they radioed back to Mahon barracks to say what they had seen and to ask for instructions. Mahon barracks told them to do nothing and that was that.

That information came up during a civil action, but in context of the inquest the coroner asked for a copy of the tape from the MOD, which flatly refused to provide it, God alone knows for what reason. Maybe it was for reasons of national security or the public interest, but whatever the MOD’s grounds for holding that clear evidence, which is relevant to an inquest, the Government will be able to use those same grounds to sack a jury and to dispose of the inquest, too. So that inquest still has not happened. Neither have inquests in the shoot-to-kill cases from the early ’80s, nor those in the cases from the late ’90s of Raymond McCord and Sean Brown. Such a situation leaves families wondering whether inquests are being stalled until one generation of the family dies off. It leaves them feeling that the state feels that time is on its side and that it can play it as long as it takes—and, of course, as the families say, the new measures are then brought forward.

In Northern Ireland, there is a consultative group looking at issues of the past, appointed by the British Government and led by Lord Eames and Denis Bradley. The Bill’s provisions leave a lot of people with the sense that some of the unresolved cases that have not been the subject of inquests will be crudely disposed of using the new powers. People such as me will not be in a position to disarm people of that suspicion unless the Government move to halt the measure now. Families are left without loved ones, suffocating with frustration that they cannot get truth or understanding about their situation. Rather than meeting their situation with truth and justice, the Government are creating more obstruction and more obfuscation.

My hon. Friend the Member for Islington, North asked my hon. Friend the Member for Hendon (Mr. Dismore) whether there were such powers in other parts of the world. My hon. Friend the Member for Hendon rightly resisted going on a comparative world tour of such matters. I draw the attention of the House to a fact about the clauses that we are discussing tonight, which concern not only Northern Ireland but the whole of the UK—or certainly England and Wales, at least. They are uncannily similar to a legislative provision made in another Parliament, which allowed the Minister to provide

“for the duties of a coroner and a coroner’s jury, or of either of them, as respects any inquest prohibited by the order being performed by such officer or court as may be determined by the order”.

The order was entirely in the control of the Minister, and that provision was in the notorious Civil Authorities (Special Powers) Act (Northern Ireland) 1922.

This year, we are celebrating the 40th anniversary of the civil rights movement in Northern Ireland. Its work and cause were supported by many Members of this House, and one of its aims—and eventual successes—was to overturn that obnoxious legislation. We need to remember how notorious the 1922 Act was. South Africa’s Minister for Justice in the apartheid years, Mr. Vorster, put through his own pernicious legislation, but said that he would trade it all for one clause of the 1922 Act.

Now we find that, with this Bill, this Government are digitally remastering one of the most pernicious and obnoxious provisions of the Civil Authorities (Special Powers) Act (Northern Ireland) 1922. That is what we have come to, and that is what is happening with the provisions in the clauses under consideration. They are almost uncanny in their resemblance to the 1922 Act when it comes to their scope and their effect.

If nothing else, what should give people cause for concern is that the measures will not be applied only to Northern Ireland. Indeed, Northern Ireland is in some ways protected from some of them, as the special coroners will not operate there. As I understand it, that is because it is deemed that all Northern Ireland’s coroners are already kosher, having been security-vetted and all the rest of it. However, the standard set by the 1922 Act is to be the law for England, Wales and Northern Ireland in the future.

The House needs to think twice about these provisions, and I beg the Government to think again about them. Ministers may claim that they apply in only a small number of cases, but it has been stressed already that those cases will be very important and controversial. Moreover, if the number of cases is likely to be small, and if the powers are to be used only rarely and as such are not worth worrying about, why are we to have 15 special coroners? Why are the Government going to such lengths, without consultation and when other legislation is going to be available soon? If they are trying to clarify, reform and deal with problems with the coroner’s system in an effective and positive way, appropriate legislation is already coming.

The Government should withdraw these provisions from the Bill. If they do not do so, Parliament should say no to them.

I find myself in complete agreement with the points made in the series of powerful speeches about this part of the Bill. Indeed, it is difficult to see how any objective observer could fail to be in complete agreement with those points.

I support the amendments put forward by Opposition Front-Bench Members, and others. I hope to vote for them later this evening, but I do not intend to engage on those issues in what I hope will be a brief contribution to this debate. Indeed, so comprehensive and compelling have been the arguments so far put forward that I am certain that I would be unable to add to or enhance them in any way. Instead, I want to make a particular point that relates to the proposed admissibility of intercept evidence at coroners’ inquests from which the jury has been excluded—as they would be if the provisions of the Bill as it stands reach the statute book.

The Home Secretary has recently appointed me to the advisory group of Privy Councillors that is concerned with the implementation of the Chilcot committee's recommendations on the admissibility of intercept evidence in criminal trials. The make-up of the committee is in fact identical to that of the original Chilcot committee, except that I have been appointed in place of my right hon. and noble Friend Lord Hurd of Westwell. The only other member of the committee who is a Member of this House is the right hon. Member for Berwick-upon-Tweed (Mr. Beith), and I am delighted to see him in his place this evening.

Obviously, the views that I express this evening are mine and mine alone. I do not purport to speak on behalf of the committee in any way. It is, however, fair to say that the committee as a whole has been impressed with the way in which the officials who have been charged with the task of implementing the original recommendations, which were of course accepted by the Government, have set about their task. That task is not an easy one. The Chilcot committee report set out nine requirements that must be met to ensure that the United Kingdom’s strategic intelligence capability is safeguarded, and that the ability of intelligence and law enforcement agencies to protect the public is not harmed if intercept evidence is made admissible.

I do not intend to go through all nine requirements this evening, but they include provisions relating to the retention of raw intercepted material and to the examination and transcription and note taking of intercepted material. In all, they add up to a comprehensive series of safeguards designed to minimise and, if possible, eliminate any risk to national security arising from the admissibility of intercept evidence. It therefore came as a surprise, to me at least, to see the provisions of the Bill that allow for the admissibility of intercept evidence in coroners’ inquests without a jury, and to see that there was no reference to those safeguards, and indeed no hint of their necessity. Of course, I appreciate that the disclosure envisaged in the Bill would be limited, but that does not dispose of some of the questions that could arise. For example, the way in which intercept material is prepared—an issue to which I have already referred—is, on the face of it, relevant whether we are talking about intercept disclosed in the circumstances envisaged under the Bill, or intercept disclosure in criminal proceedings.

Other questions arise, too. What if the verdict of an inquest that is based on intercept evidence, among other things, leads to a prosecution, or is challenged through judicial review? It may well be that the Government have thought through all the implications of the change, and have convincing answers to all those questions. I hope that they do, in which case I look forward to hearing them from the Minister at the end of the debate. Should that not prove to be the case, a great deal of further thought would be required before the provisions find their way on to the statute book.

I know that a number of people wish to speak, so I shall keep my remarks short. It was interesting to hear reference made to the Deepcut barracks cases. My right hon. Friend the Member for—I will probably get this wrong—Walsall, North—

I knew I would get it wrong. My right hon. Friend was the Chair of the Defence Committee when we produced the report, “Duty of Care”. That is an interesting phrase; it refers to our duty of care to people—the families—who have an interest in an inquest and go through the process. I am very interested in the subject.

In some senses, the part of the Bill that we are discussing worries me more than the issue of pre-charge detention. It is interesting that the media have not really done much with it, and that there has not been much informed debate among the public about the real effects of the provision that we are discussing.

It was clear both during our inquiry and subsequently that the inquest process has huge potential to allow people to understand not only what has happened, but why. The provision will deny that process to people who would be subject to it. We saw the genuine pain and suffering of families who wanted that ability to understand—they did not necessarily want revenge or retribution—but to whom the process was denied, because it was not properly run and not properly available to them.

A coroners Bill is due to be introduced. The Defence Committee is waiting for it, and had a discussion today. I do not speak on behalf of the Committee, but as everyone will know, we wish to hold an inquiry on how the coroners process is run, with regard to cases concerning the death of military personnel and attendant effects relating to people associated with the military. The provision that we are discussing seems inherently unsound, in a way that many hon. Members have already described. Certainly, its timing is wrong. When that Bill comes along, the provision in the Counter-Terrorism Bill and this discussion will not inform it. They will prejudice it if the Bill proceeds and the Government will have to unscramble it and redo it.

The dangers of the provision have been described by others. As the hon. Member for Foyle (Mark Durkan) said, the problem is not what such provisions do now, but what happens later. I suppose the Secretary of State responsible will be the Justice Secretary. That might be an honourable person at present, but individuals will change. We must be careful what we do. I signed the amendment and I shall prosecute that if necessary, but I would prefer not to do so.

Everyone has explained that this is the wrong time to legislate in haste in a Bill that, we are told, was drawn up in the cold light of day as a reserve power for the future. The provision is wrong, it is dangerous, and I hope that the Minister will withdraw it—if not here, then elsewhere later.

In a civilised society, every one of us, and the society itself, has an interest in the causes of the death of every one of its members. That point has been well rehearsed in the debate. The Bill is extraordinary, but I say to the hon. Member for Foyle (Mark Durkan) that I am not surprised by anything that the Government bring forward from the Home Office or any of their security agencies to improve the lot of the British citizen.

Who could imagine that a Bill about terrorism should suddenly incorporate an amendment of a Coroners Act to bring about a situation that repudiates the whole tradition of our open justice and our approach to the reinforcement of the citizen’s right to know what happened in the circumstances of an unusual or exceptional death? That is why we support coroners courts. That is why they have been largely open and accessible to us. We spoke about closure and satisfaction of the individual families concerned, but we as a society have a wider interest. We want to know that the cause of death is explicable and whether it was criminal in its intent.

Suddenly a Bill relating to terrorism contains an extraordinary and very nasty series of proposals. It states:

“The Secretary of State may certify in relation to an inquest that, in the opinion of the Secretary of state, the inquest will involve the consideration of material that should not be made public”,

and then it lists the circumstances:

“in the interests of national security,

in the interests of the relationship between the United Kingdom and another country, or”—

the usual catch-all that the Government use—

“otherwise in the public interest.”

Defining the public interest is a matter not only for Government, but for the Chamber. The measure strikes at the basis of our principles. It is outrageous that it has been incorporated in the Bill.

The provision can be retrospective. The clause goes on:

“Where a certificate has effect in relation to an inquest, the inquest must be held or (as the case may be) continued without a jury”

and so on. It is an assertion of the nervousness of the state. Let us be clear about that. Who in a democratic society would seek such far-reaching power to obscure something that we take as a routine part of our democratic exchanges? Yet there has been no justification. What do the Government mean by

“in the interests of the relationship between the United Kingdom and another country, or otherwise in the public interest”?

It is everything, is it not? The Government determine it. On the most basic and preliminary examination, this is unacceptable.

I have heard all the calls for national security over the nearly 30 years that I have been in the House. The Conservative Government used to bait the Labour party because it opposed internment and the Northern Ireland terrorism Acts. This Government now try to bait the Conservative party on the basis that we are soft on terrorism. It is nonsense. This country is united in the belief that we want peaceful, lawful existence, and that the purposes of the state are to ensure that each and every one of us is secure. To stick in the middle of that the view that something nasty might be going on in a coroner’s court hardly brings joy to the hearts of a free people when they listen to a Government bring forward what we all know are important measures in other areas of the Bill. I hope very much that the House—no one else has spoken in favour of it other than the Minister himself—

The right hon. Gentleman has probably been listening to the Prime Minister and will come back with the answer.

The House must reject these provisions. This is not a matter for the House of Lords. This is quite clearly a matter for us, and we should tell the Government that this should not be included in the Bill and should be withdrawn.

I shall be brief to enable the Minister to reply and other Members to speak. I want the Minister to be able to explain to the House exactly why we are introducing something as draconian as clause 65 into this Bill. I am glad that we have had a good debate on this issue this evening, because this part of the Bill is as important and as dangerous to liberties in this country as the 42 days that we will be debating tomorrow. Like that issue, it crosses the important Rubicon of the separation of political and judicial powers. If we are to give the Secretary of State the power to appoint a coroner, the power to prevent a jury and the power to intervene in a case as it goes on, we can no longer claim that there is a complete separation of political and judicial authority in this country. Additionally, since, as far as I understand it, the majority, if not all, of jury cases that are heard in a coroner’s court involve a state party—be it the police, the Army or some other organ of the state—in connection with a death, the Minister, whoever he is, will have a clear conflict of interest, as many hon. Members have pointed out.

Proposed new section 8A(1) (b), in clause 65 (2), contains the words

“in the interests of the relationship between the United Kingdom and another country”.

That particularly disturbs me. If we are to be proud of and believe in our judicial system and traditions, why are we saying that our relationships with another jurisdiction are an overriding interest? Look at the odium that Tony Blair incurred when he intervened to prevent the investigation by the Serious Fraud Office into the involvement of BAE Systems with Saudi Arabia. He said in his defence that the overriding interest was one of national security and the relationship with the kingdom of Saudi Arabia, whose record on human rights is slightly questionable in a number of areas. I suspect that the overriding interest would relate to many other jurisdictions as well where we have close relationships, arms sales or whatever else. It is simply wrong and dangerous for us to do this. It will not do our standing any good around the world and it is no good for our judicial system or our democracy.

I also draw attention to the briefing that has been sent out by Inquest. That organisation has its offices in my constituency and it has campaigned with great difficulty and tenacity and very bravely on investigating the causes of deaths in custody. I pay tribute to that organisation, and I know the people who work there very well.

I know families where somebody has died in custody, and the family goes through the pain of calling for an inquiry, a coroner’s court inquest and so on. Someone who dies in custody may be under suspicion, which may be why they are in custody in the first place. Such people often do not have wonderful connections with brilliant barristers and lawyers, and they are often victims who find themselves in police custody and tragically die for a variety of reasons. In such circumstances, it is not in the interests of the police to ensure that there is an open investigation, and it is not necessarily in the interests of any other agency of the state. The only avenue that is available for families of the deceased to seek justice is through the legal system. If we give the Secretary of State the power to intervene to prevent a jury trial in a coroner’s court, that avenue will not be open to such families.

I have two more points. First, deaths in custody raise important issues of state power and accountability. In a free and democratic society, deaths in state custody should be subject to particularly close public scrutiny. For that reason, it is imperative that the inquest system is open and transparent so that justice can be seen to be done and public confidence in the state bodies is upheld.

Secondly, I intervened on my hon. Friend the Member for Hendon (Mr. Dismore) during his excellent contribution—I will take great pleasure in supporting his amendment—on international comparisons. I do not have the information that he thought that I had about what happens in every other jurisdiction, but I want to discuss article 2 of the European convention on human rights, which other hon. Members have also mentioned. Article 2 requires the Government to implement a proper procedure for ensuring the accountability of agents of the state to maintain public confidence and to allay any concern arising from the use of lethal force. It places a positive duty on the state to investigate a death in custody with an inquiry that is conducted on the state’s own initiative, that is independent both institutionally and in practice, that is capable of leading to a determination of responsibility and the punishment of those responsible, that is prompt, that allows for sufficient public scrutiny and that enables the next of kin to participate.

When the Minister replies, I hope that he will explain the motives behind the inclusion of clause 65 and its related provisions in the Bill. We are taking a very dangerous step: we are giving too much unaccountable power to Ministers to protect the state’s agents, when the public rely on us, as Members of Parliament, to defend their interests, their procedures and their access to justice.

I am sorry to prevent others from contributing, but I am mindful of the time. [Interruption.] The programme motion was agreed by Government and Opposition Front Benchers, so take it up with them and get real.

Some germane and relevant issues have been raised. There have been some interesting little treatises, including the previous contribution, by my hon. Friend the Member for Islington, North (Jeremy Corbyn), but they do not bear much relation to the substance of the Bill. Nobody, apart from my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble), has answered the question of what to do about families who are currently stuck in limbo and cannot achieve resolution and closure at an inquest into the death of a loved one because of the blockage around the use of sensitive material and, potentially, intercept evidence—I will address the point raised by the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) in a moment. If this system, or a similar system, does not prevail, what will happen to families involved in such rare cases? The answer is that they will stay in limbo; the answer is that they will stay in abeyance and nothing will be done for them.

I understand what the Minister might be trying to do, but how has he met the tests that the Chilcot committee set, such as the test that intelligence and law enforcement agencies should not be required to retain, transcribe and otherwise process material to such an extent that it would interfere with their ability to gather intelligence? That is one of the things that the implementation group is now having to address.