Report of operational need for further extension of maximum period of detention
‘(1) The report required by section [Power to declare reserve power exercisable] (2)(b) is a report by—
(a) the Director of Public Prosecutions and the chief officer of a police force in England and Wales,
(b) the Crown Agent and the chief constable of a police force in Scotland, or
(c) the Director of Public Prosecutions for Northern Ireland and the Chief Constable of the Police Service of Northern Ireland,
to the following effect.
(2) The report must—
(a) state that each of the persons making the report is satisfied that there are reasonable grounds for believing that the detention of one or more persons beyond 28 days will be necessary for one or more of the purposes mentioned in subsection (3) below, and
(b) give details of the grounds for that belief.
(3) The purposes referred to in subsection (2)(a) are—
(a) to obtain, whether by questioning or otherwise, evidence that relates to the commission by the detained person or persons of a serious terrorist offence,
(b) to preserve such evidence, or
(c) pending the result of an examination or analysis of any such evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining such evidence.
(4) In subsection (3)(a) a “serious terrorist offence” means—
(a) an offence under the Terrorism Act 2000 (c. 11) or the Terrorism Act 2006 (c. 11), or
(b) any offence that has a terrorist connection,
in respect of which an offender who has attained the age of 21 (in England and Wales, 18) is liable on conviction to a sentence of imprisonment for life.
(5) The report must also state that each of the persons making the report is satisfied that the investigation in connection with which the detained person or persons is or are detained is being conducted diligently and expeditiously.
(6) Until the coming into force of section 61 of the Criminal Justice and Court Services Act 2000 (c. 43) (abolition of sentences of custody for life etc), subsection (4) has effect with the omission of the words “(in England and Wales, 18)”.’.
New Clause 24
Notification of chairmen of certain committees
‘(1) The Secretary of State must on making an order under section [Power to declare reserve power exercisable] forthwith notify—
(a) the chairman of the Home Affairs Committee of the House of Commons,
(b) the chairman of the Joint Committee on Human Rights, and
(c) the chairman of the Intelligence and Security Committee.
(2) The Secretary of State must also, as soon as reasonably practicable, provide each of those persons with a copy of—
(a) the report received under section [Report of operational need for further extension of maximum period of detention] (report on operational need for further extension of maximum period of detention), and
(b) the legal advice obtained under section [Independent legal advice] (independent legal advice).
(3) The information received under subsection (1) and the documents received under subsection (2) are to be held by the recipients subject to the terms of their oath as a privy counsellor (or if any recipient is not a privy counsellor, on corresponding terms).
(4) The references in subsection (1) to the Home Affairs Committee of the House of Commons and the Joint Committee on Human Rights shall—
(a) if the name of the Committee is changed, be taken (subject to paragraph (b)) to be references to the Committee by its new name;
(b) if the functions of the Committee at the passing of this Act (or functions substantially corresponding to those functions) become functions of a different committee, be taken to be references to the committee by whom the functions are for the time being exercisable.’.
New Clause 25
Statement to be laid before Parliament
‘(1) After making an order under section [Power to declare reserve power exercisable] the Secretary of State must lay before Parliament a statement to the following effect.
(2) The statement must state that the Secretary of State is satisfied—
(a) that a grave exceptional terrorist threat has occurred or is occurring,
(b) that the reserve power is needed for the purpose of investigating the threat and bringing to justice those responsible,
(c) that the need for that power is urgent, and
(d) that the provision in the order is compatible with Convention rights (within the meaning of section 1 of the Human Rights Act 1998 (c. 42)).
(3) The statement may include such other information as to the reasons for the decision to make the order as appears to the Secretary of State to be appropriate.
(4) The statement must not include—
(a) the name of any person then detained under section 41 of the Terrorism Act 2000 (c. 11), or
(b) any material that might prejudice the prosecution of any person.
(5) The statement must be laid before Parliament within two days after the day on which the order was made or, if that is not practicable, as soon as is practicable.’.
New Clause 26
Parliamentary scrutiny
‘(1) Where an order under section [Power to declare reserve power exercisable] is made—
(a) the Secretary of State must as soon as is reasonably practicable lay the order before Parliament, and
(b) the order shall lapse at the end of the period of seven days beginning with the date of laying unless during that period each House of Parliament passes a resolution approving it.
(2) If the order lapses under this section, the officer having custody of a person whose detention—
(a) was authorised by virtue of the reserve power, and
(b) is not otherwise authorised by law,
must release that person immediately.
(3) Nothing in this section—
(a) prevents the making of a new order, or
(b) affects anything done by virtue of the order before it lapsed.’.
New Clause 27
Parliamentary scrutiny: prorogation and adjournment
‘(1) If when an order is made under section [Power to declare reserve power exercisable] Parliament stands prorogued to a day after the end of the period of five days beginning with the date on which the order is made, Her Majesty shall by proclamation under the Meeting of Parliament Act 1797 (c. 127) require Parliament to meet on a specified day within that period.
(2) If when an order is made under that section the House of Commons stands adjourned to a day after the end of the period of five days beginning with the date on which the order is are made, the Speaker of the House of Commons shall arrange for the House to meet on a day during that period.
(3) If when an order is made under that section the House of Lords stands adjourned to a day after the end of the period of five days beginning with the date on which the order is made, the Speaker of the House of Lords shall arrange for the House to meet on a day during that period.
(4) In subsections (2) and (3) a reference to the Speaker of the House of Commons or the Speaker of the House of Lords includes a reference to a person authorised by Standing Orders of the House of Commons or of the House of Lords to act in place of the Speaker of the House of Commons or the Speaker of the House of Lords in respect of the recall of the House during adjournment.’.
New Clause 28
Duration
‘(1) An order under section [Power to declare reserve power exercisable] lapses at the end of the period of 30 days beginning with the day on which the order was made.
(2) If an order lapses under this section, the officer having custody of a person whose detention—
(a) was authorised by virtue of the reserve power, and
(b) is not otherwise authorised by law,
must release that person immediately.
(3) Nothing in this section—
(a) prevents the making of a new order, or
(b) affects anything done by virtue of the order before it lapsed.’.
New Clause 29
Independent review and report
‘(1) After the end of any period during which an order was in force under section [Power to declare reserve power exercisable], the person appointed under section 36 of the Terrorism Act 2006 (c. 11) (review of terrorism legislation) must—
(a) carry out a review in accordance with this section, and
(b) send a report on the outcome of the review to the Secretary of State.
(2) The review must consider—
(a) whether before making the order the Secretary of State received a report complying with the requirements of section [Report of operational need for further extension of maximum period of detention] (report of operational need for further extension of maximum period of detention), and
(b) what information was before the Secretary of State as to the matters mentioned in the statement required by section [Statement to be laid before Parliament] (statement to be laid before Parliament),
and the report must state whether in the opinion of the person carrying out the review the decision of the Secretary of State to make the order was, in all the circumstances, reasonable.
(3) The review must consider the case of every person who was detained in pursuance of a warrant of further detention in which the specified period was extended beyond 28 days.
(4) The report must state with respect to each case whether in the opinion of the person carrying out the review—
(a) the procedures applicable to the making of an application to extend beyond 28 days the period specified in a warrant of further detention were properly followed, and
(b) the requirements of—
(i) Parts 1 and 2 of Schedule 8 to the Terrorism Act 2000 (c. 11) (treatment of detained persons and review of detention), and
(ii) any applicable code of practice under section 66 of the Police and Criminal Evidence Act 1984 (c. 60) or Article 65 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)),
were complied with.
(5) The Secretary of State may pay the expenses of the person who conducts a review under this section and also such allowances as the Secretary of State determines.
(6) The report under this section relating to any period during which an order under section [Power to declare reserve power exercisable] was in force must be sent to the Secretary of State not later than six months after the order ceased to be in force.
(7) The Secretary of State must lay a copy of the report before Parliament as soon as reasonably practicable.
(8) In this section “warrant of further detention” and “the specified period” (in relation to such a warrant) have the meaning they have in Schedule 8 to the Terrorism Act 2000.’.
New Clause 30
Amendment to the Civil Contingencies Act 2004
In section 23 of the Civil Contingencies Act 2004 (c. 36) (limitations of emergency regulations), after subsection (4) (provision that may not be made) insert—
“(4A) In subsection (4)(d) the reference to alteration of procedure in relation to criminal proceedings includes alteration of the period for which a person may be detained under section 41 of the Terrorism Act 2000 (arrest without warrant of terrorist suspect).”’.
New Clause 32
Independent legal advice
‘(1) Before making an order under section [Power to declare reserve power exercisable] the Secretary of State must obtain for the purposes of sections [Notification of chairmen of certain committees] and [Statement to be laid before Parliament] independent legal advice as to whether the Secretary of State can properly be satisfied of the matters mentioned in section [Statement to be laid before Parliament](2).
(2) “Independent legal advice” means advice from a lawyer other than a government lawyer.
(3) A “lawyer” means—
(a) as respects England and Wales, a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act);
(b) as respects Scotland, an advocate (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate;
(c) as respects Northern Ireland—
(i) a barrister (whether in practice as such or employed to give legal advice); or
(ii) a solicitor who holds a practising certificate.
(4) Until the commencement of the relevant provisions of the Legal Services Act 2007, the following is substituted for subsection (3)(a)—
“(a) as respects England and Wales—
(i) a barrister (whether in practice as such or employed to give legal advice);
(ii) a solicitor who holds a practising certificate; or
(iii) a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990);”.
(5) A “government lawyer” means a lawyer who holds, or has held, an office (other than judicial office) or employment under the Crown.
(6) If an order under section [Power to declare reserve power exercisable] is made the Secretary of State must lay before Parliament at the same time as the statement required by section [Statement to be laid before Parliament] a copy of the advice obtained under this section.
(7) If it appears to the Secretary of State that the advice contains material whose disclosure—
(a) would be damaging to the public interest, or
(b) might prejudice the prosecution of any person,
the duty of Secretary of State under subsection (6) is to lay before Parliament a copy of a version of the advice, provided by or agreed with the independent legal adviser, that does not contain such material.’.—[Mr. McNulty.]
Brought up, and read the First time.
Question put, That the clauses be added to the Bill:—
The Ayes to the right, 315. The Noes to the left, 306. [Interruption.]
Order. [Interruption.] Order. Mr. Gale, I warn you. You are a member of the Chairmen’s Panel, and you know full well that every hon. Member in the House has their own vote and their own conscience—[Interruption.] Order. And no one will ever censure a Member of Parliament on how they vote, especially one of their own. [Interruption.] Order. Let me do my job.
The Ayes to the right, 315. The Noes to the left, 306. The Ayes have it.
Question accordingly agreed to.
Clauses added to the Bill.
After Clause 21
Amendment made: No. 4, in page 16, line 17, leave out clause 22.—[Mr. McNulty.]
New Schedule 1
‘Amendments relating to period of pre-charge detention
Part 1
Reserve power to extend maximum period of detention
1 After Part 3 of Schedule 8 to the Terrorism Act 2000 (c. 11) (extension of detention under section 41) insert—
“Part 4
Reserve power to extend detention under section 41
Introductory
38 The power conferred by this Part of this Schedule is exercisable only when an order under section [Power to declare reserve power exercisable] of the Counter-Terrorism Act 2008 is in force.
Application to court to authorise further detention
39 (1) Each of the following—
(a) in England and Wales, the Director of Public Prosecutions or a Crown Prosecutor acting with the consent of the Director,
(b) in Scotland, the Lord Advocate or a procurator fiscal,
(c) in Northern Ireland, the Director of Public Prosecutions for Northern Ireland,
may apply for the extension of the period specified in the warrant of further detention under which a person is detained, beyond the period of 28 days beginning with the relevant time.
(2) An application under this paragraph must be made to a senior judge.
(3) Subject to sub-paragraph (4), the period by which the specified period is further extended on an application under this section shall be the period—
(a) beginning with the end of the period for which the period specified in the warrant was last extended, and
(b) ending with whichever is the earlier of—
(i) the end of the period of 7 days beginning with that time, or
(ii) the end of the period of 42 days beginning with the relevant time.
(4) A senior judge may further extend the period specified in a warrant by a shorter period than is required by sub-paragraph (3) if—
(a) the application for the extension is an application for an extension by a period that is shorter than is so required, or
(b) the senior judge is satisfied that there are circumstances that would make it inappropriate for the period of the extension to be as long as the period so required.
(5) Where the specified period is extended under this paragraph—
(a) the warrant must be endorsed with a note stating the new specified period, and
(b) if the period is extended to a time that is more than 28 days after the relevant time, it is the duty of the applicant (in Scotland, of the Crown Agent)—
(i) to inform the Secretary of State forthwith, and
(ii) to provide the Secretary of State, as soon as practicable, with the information required by paragraph 41(3) and (4) (information to be contained in statement to Parliament).
Application to court: supplementary provisions
40 (1) Paragraphs 30(3) and 31 to 34 apply to an application under paragraph 39 as they apply to an application for a warrant of further detention, but—
(a) as if references to a judicial authority were to a senior judge,
(b) as if references to the judicial authority in question were to the senior judge in question, and
(c) as if the reference in paragraph 32(2) to relevant evidence were to evidence relating to the commission by the detained person or persons of a serious terrorist offence.
(2) In sub-paragraph (1)(c) “serious terrorist offence” means—
(a) an offence under the Terrorism Act 2000 (c. 11) or the Terrorism Act 2006 (c. 11), or
(b) an offence that has a terrorist connection (within the meaning of the Counter-Terrorism Act 2008: see section 87 of that Act),
in respect of which an offender who has attained the age of 21 (in England and Wales, 18) is liable on conviction to a sentence of imprisonment for life.
(3) Until the coming into force of section 61 of the Criminal Justice and Court Services Act 2000 (c. 43) (abolition of sentences of custody for life etc), sub-paragraph (2) has effect with the omission of the words “(in England and Wales, 18)”.
(4) A senior judge may adjourn the hearing of an application under paragraph 39 only if the hearing is adjourned to a date before the end of the period specified in the warrant.
This does not apply to an adjournment under paragraph 33(2).
(5) In this Part of this Schedule “the relevant time”, in relation to a person, means—
(a) the time of that person’s arrest under section 41, or
(b) if that person was being detained under Schedule 7 at the time of that person’s arrest under section 41, the time when that person’s examination under that Schedule began.
(6) In this Part of this Schedule “senior judge” means—
(a) in England and Wales—
(i) a judge of the High Court, or
(ii) a circuit judge designated for the purposes of this Part of this Schedule by the Lord Chief Justice of England and Wales;
(b) in Scotland—
(i) a judge of the High Court of Justiciary, or
(ii) the sheriff;
(c) in Northern Ireland—
(i) a judge of the High Court, or
(ii) a county court judge designated for the purposes of this Part of this Schedule by the Lord Chief Justice of Northern Ireland.
(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under sub-paragraph (6)(a).
(8) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under sub-paragraph (6)(c)—
(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;
(b) a Lord Justice of Appeal (as defined in section 88 of that Act).
Parliament to be informed if court authorises detention beyond 28 days
41 (1) If on an application under paragraph 39 the court extends the period specified in the warrant of further detention under which a person is detained to a time that is more than 28 days after the relevant time, the Secretary of State must inform Parliament.
(2) The Secretary of State must lay a statement before Parliament as soon as reasonably practicable after the period has been extended.
(3) The statement must specify—
(a) the date on which the period was further extended,
(b) the period by which the period was further extended, and
(c) the total number of days for which the person’s detention has been authorised—
(i) beginning with the relevant time, and
(ii) ending with the last day of the period specified in the warrant.
(4) The statement must also give details of—
(a) the court that heard the application under paragraph 39 in relation to the detained person; and
(b) the place where the person is being detained.
(5) The statement must not include—
(a) any details of the person detained, or
(b) any material that might prejudice the prosecution of any person.”.
Part 2
Consequential amendments
Prosecution of Offences Act 1985
2 (1) Section 1(6) and (7) of the Prosecution of Offences Act 1985 (c. 23) have effect in relation to the making of an application under Part 4 of Schedule 8 to the Terrorism Act 2000 (c. 11) (a “Part 4 application”) subject to the following provisions.
(2) Section 1(6) (Crown Prosecutor to have powers of Director as to the institution and conduct of proceedings) does not authorise the making of a Part 4 application by a Crown Prosecutor without the consent of the Director.
(3) Section 1(7) (power of Crown Prosecutor to give consent etc in place of Director) applies only to a Crown Prosecutor authorised by the Director in person to give consent for the purposes of Part 4 applications.
Terrorism Act 2000
3 In section 41(6), (7) and (8) of the Terrorism Act 2000 (c. 11) for “or 36” substitute “, 36 or 39”.
4 In paragraph 29(3) of Schedule 8 to that Act for “paragraph 36” substitute “paragraphs 36 and 39”.
5 For paragraph 36 of that Schedule (extension of warrants) substitute—
“Extension of specified period
36 (1) Each of the following—
(a) in England and Wales, a Crown Prosecutor,
(b) in Scotland, the Lord Advocate or a procurator fiscal,
(c) in Northern Ireland, the Director of Public Prosecutions for Northern Ireland,
(d) in any part of the United Kingdom, a police officer of at least the rank of superintendent,
may apply under this paragraph for the extension of the period specified in a warrant of further detention.
(2) An application under this paragraph may be made to a judicial authority if—
(a) the grant of the application (otherwise than in accordance with sub-paragraph (4)(b)) would extend that period to a time that is no more than 14 days after the relevant time, and
(b) no application has previously been made to a senior judge in respect of that period.
In any other case an application under this paragraph must be made to a senior judge.
(3) Subject to sub-paragraph (4), the period by which the specified period is extended on an application under this paragraph shall be the period—
(a) beginning with—
(i) in the case of a warrant specifying a period that has not previously been extended, the end of the period specified in the warrant, and
(ii) in any other case, the end of the period for which the period specified in the warrant was last extended; and
(b) ending with the earlier of—
(i) the end of the period of 7 days beginning with that time, or
(ii) the end of the period of 28 days beginning with the relevant time.
(4) A judicial authority or senior judge may extend the period specified in a warrant by a shorter period than is required by sub-paragraph (3) if—
(a) the application for the extension is an application for an extension by a period that is shorter than is so required, or
(b) the judicial authority or senior judge is satisfied that there are circumstances that would make it inappropriate for the period of the extension to be as long as the period so required.
(5) Where the specified period is extended, the warrant must be endorsed with a note stating the new specified period.
Extension of specified period: supplementary provisions
36A (1) Paragraphs 30(3) and 31 to 34 apply to an application under paragraph 36 as they apply to an application for a warrant of further detention.
(2) In relation to an application made to a senior judge they apply—
(a) as if references to a judicial authority were to a senior judge, and
(b) as if references to the judicial authority in question were to the senior judge in question.
(3) A judicial authority or senior judge may adjourn the hearing of an application under paragraph 36 only if the hearing is adjourned to a date before the end of the period specified in the warrant.
This does not apply to an adjournment under paragraph 33(2).
(4) In paragraph 36 “the relevant time”, in relation to a person, means—
(a) the time of that person’s arrest under section 41, or
(b) if that person was being detained under Schedule 7 at the time of that person’s arrest under section 41, the time when that person’s examination under that Schedule began.
(5) In this Part of this Schedule “senior judge” means—
(a) in England and Wales—
(i) a judge of the High Court, or
(ii) a circuit judge designated for the purposes of paragraph 36 by the Lord Chief Justice of England and Wales;
(b) in Scotland—
(i) a judge of the High Court of Justiciary, or
(ii) the sheriff;
(c) in Northern Ireland—
(i) a judge of the High Court, or
(ii) a county court judge designated for the purposes of paragraph 36 by the Lord Chief Justice of Northern Ireland.
(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under sub-paragraph (5)(a).
(7) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under sub-paragraph (5)(c)—
(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;
(b) a Lord Justice of Appeal (as defined in section 88 of that Act).”.
Terrorism Act 2006
6 (1) Section 25 of the Terrorism Act 2006 (c. 11) (expiry or renewal of extended maximum detention period) is amended as follows.
(2) In the heading for “extended” substitute “28 day”.
(3) In subsection (3)(b) for “paragraph 37” substitute “paragraphs 36A and 37”.
(4) For subsection (4) substitute—
“(4) The further consequential modifications are—
(a) the substitution for paragraph 36(2) of—
“(2) The person to whom an application under this paragraph may be made is a judicial authority.”;
(b) the omission of the words “or senior judge” wherever occurring in paragraphs 36(4), 36A(3) and 37(2); and
(c) the omission of paragraph 36A(2) and (5) to (7).”.’.—[Mr. McNulty.]
Brought up, and read the First time.
Question put, That the schedule be added to the Bill:—
Schedule added to the Bill.
After Schedule 1
Amendment made: No. 5, in page 64, line 15, leave out Schedule 2.—[Mr. McNulty.]
Motion made, and Question put, That the Bill be now read the Third time:—
Bill read the Third time, and passed.
On a point of order, Mr. Speaker. We understand that internal agreement of extra expenditure in Northern Ireland of some £1.2 billion has been announced today, so I wonder whether you, Mr. Speaker, have had notice of any emergency Budget statement concerning Northern Ireland?
All I can say is that that is something on which I do not want to be drawn. I will leave it at that.
Further to that point of order, Mr. Speaker. Would it be in order to request that an urgent question on precisely that issue be directed to the Chancellor of the Exchequer for tomorrow?
I deal with urgent questions on the day. The right hon. and learned Gentleman would know that, as he is quite a regular at submitting urgent questions.
On a different point of order, Mr. Speaker. Reports are appearing in the media that there may have been a major security breach, with a top-level intelligence report on al-Qaeda having been left on a train. Will it be possible for a Minister to make a statement to the House as soon as possible on what might be a very serious issue?
As the hon. Gentleman knows, Ministers are entitled to come to the House whenever they wish to make a statement. His concern will have been heard and recorded.
delegated legislation
Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Delegated Legislation Committees),
Extradition
That the draft Extradition Act 2003 (Amendment to Designations) Order 2008, which was laid before this House on 6th May, be approved.—[Steve McCabe.]
Question agreed to.
Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Delegated Legislation Committees),
Constitutional Law
That the draft Scotland Act 1998 (Transfer of functions to the Scottish Ministers etc.) Order 2008, which was laid before this house on 8th May, be approved.—[Steve McCabe.]
Question agreed to.