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EnactedCounter-Terrorism Act 2008

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Report stage in the Lords

11 Nov 200848 speechesView in Hansard ↗
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    The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead)The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead)Labour
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    My Lords, I beg to move that the Bill be now further considered on Report. Moved accordingly, and, on Question, Motion agreed to.
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  • Speaker
    The Financial Services Secretary to the Treasury (Lord Myners)The Financial Services Secretary to the Treasury (Lord Myners)Crossbench
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    moved Amendment No. 47A:
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  • Speaker
    Baroness Neville-JonesBaroness Neville-JonesConservative
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    My Lords, I thank the Minister for his explanation of the amendments, which come rather late in the day. The House will rightly have concerns about rushed legislation and the risk that it can pose of powers being used inappropriately. That is not just a theoretical remark. We need only think back to the use of the counterterrorism legislation to freeze Landsbanki’s assets to see a case in point—and I share that kind of worry. Nothing that I am about to say should be taken as condoning inappropriate use of power. That said, we entirely agree with the Government that there is a pressing need to address gaps in our ability to tackle terrorism financing, proliferation financing and money-laundering. It is a policy objective that we on these Benches entirely share with the Government. We are therefore supportive of the thrust of the amendments. It is indeed worrying that, for some time, the Treasury has not had the powers to allow the UK to apply the full range of financial restrictions and measures recommended by the Financial Action Task Force. That has been a matter of international embarrassment to us and it is right that we should close that gap. As the Minister said, we are not at present able to require business to be aware of risks, take extra diligence or supply systematic reporting when transacting with jurisdictions of concern. Those are things that we need to be able to do. We also need to be able to limit or cease transactions with countries of concern. That is obviously a considerable power and needs to be drafted with great care. The Financial Action Task Force issued a call for member states to address the gaps in their domestic legislation in October. Certainly, my colleagues on the Front Bench who deal with foreign affairs may wish to see us able to take action to respond to that. Given its subject matter, I agree that, while the Bill is not necessarily the ideal vehicle, it is the best we have available to put these powers in place at this time, and we think it reasonable to do so. It is the only vehicle, it has to be said, that will allow us to get these powers on the face of primary legislation by February 2009, the date of the next meeting of the Financial Action Task Force. Taking all that into account, as the Minister said, we have sought to work closely with the Treasury from these Benches to secure agreement on amendments over the past week or so. In doing that, we specified a number of safeguards that were not in the original draft of the amendment that we saw. In particular, we focused on the need for annual reports to Parliament on the use of the proposed new powers. I know that the noble Baroness, Lady Miller, has tabled a probing amendment and, like the Minister, I am interested to see what information she thinks should be included in the report. We went into fairly detailed and specific points in the drafting, so that the amendment put forward here is thought through. I thank the Minister for the constructive way in which he and his officials engaged with us. Our joint work is reflected in the amendment before us and in the Explanatory Notes sent to your Lordships' House last week. I am sorry to say that something seems to have gone wrong with the circulation of the Explanatory Memorandum. I did find it, but it was in the Library rather than the Printed Paper Office, so I fear that a number of noble Lords may not have seen it. That is a great pity because it is very helpful. I commend sight of it because it is a helpful explanation of what the Government are trying to do. Given that, it is all the more important, if noble Lords will allow me, to raise a number of points and questions on the Floor and have various assurances and points on the record. The Minister has already seen these questions so they will not come as a surprise. We tabled a number of amendments based on our work with the Treasury. One is probing and I hope that the Government are able to accept the other two. My first two questions are related. When would a failure to comply with a direction from the Treasury incur a civil penalty as opposed to constituting an offence? It is important to have clarity on that. Will the Minister give the House some indicative examples beyond those included in the Explanatory Notes of what “appropriate” action by an enforcement authority would be? “Appropriate” is defined as, “effective, proportionate and dissuasive”. That point about the action of enforcement authorities leads on to my next question. The amendment makes clear that the powers of enforcement authorities and their officers are not exercisable in relation to items subject to legal privilege. Can the Minister explain how an enforcement officer would distinguish between items that are not subject to legal privilege and those that are? This is obviously included in the PACE codes. What if an item is viewed or removed, and is later found to be subject to legal privilege? What would its fate be?
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  • Speaker
    Lord GoodhartLord GoodhartLiberal Democrat
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    My Lords, I wish to add to what the noble Baroness said about the Delegated Powers and Regulatory Reform Committee. Owing to the extremely short notice that was given to us to deal with a very substantial set of amendments, the committee has been unable to look at them so far but will consider them tomorrow. We may recommend that certain alterations should be considered, which would take the form of amendments to the provisions passed by your Lordships' House today. I cannot say what will happen until the committee has met, but I think that there may be one or two matters on which we will make recommendations.
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  • Speaker
    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    My Lords, we on these Benches support the broad thrust of these amendments, which introduce important powers to help combat money-laundering and terrorist financing and proliferation by restricting financial interactions with the designated groups or individuals that the Minister talked about. We understand that this is a very important step which is in line with the recommendations of the FATF. Therefore, we are sympathetic to the introduction of the powers. However, we believe that it is necessary to introduce an amendment at least to seek some assurances from the Minister. These are very potent regulations with the ability to require, at the say-so of the Treasury, a business to completely cease trading with another business or with the whole of a Government. In fact, they constitute some of the widest powers on finance matters that I can remember coming through this House. As the Minister said, only any one of three conditions needs to be complied with. After the recent example, which the noble Baroness, Lady Neville-Jones, mentioned, of the Landsbanki Freezing Order, we really have to be very careful about hasty decision-making which can lead to problems later on. Although I have heard the Minister’s explanation, I am surprised that the Government have introduced the amendments so late in the day. I emphasise that, and I would be grateful for the Minister’s comment on that. The FATF conducted its third mutual evaluation report of UK compliance and made its recommendations over a year ago, in June 2007, as I understand it. Why has the Treasury left it until now to introduce the amendments? Unless I have that date wrong, it has had more than a year to think about it. I would be grateful to understand why it has taken that length of time. The difficulty created for Parliament by that lateness has been compounded by the fact that the Government have presented Members of this House with a moving target. I am very grateful to the Minister for giving us sight of the amendments in advance, and to members of his team, who went into considerable detail on questions that my researchers raised. However, the Government have changed the amendments over the past few days, so that it almost seems as if the Treasury is conducting an ad hoc consultation right up to the wire. Its willingness to discuss the amendments in depth with us has helped that, but it is certainly a very difficult situation to deal with. My second point relates to the mutual evaluation report published by the FATF last year. Why has the Minister chosen to react to only a small selection of the FATF recommendations in bringing forward these recommendations? The UK has a comparatively good record on powers to combat money laundering and terrorist financing, and some of the suggestions made by the FATF have since been met in the third EU money laundering directive, but other FATF concerns still seem to be outstanding. For example, in 2007, its analysis of preventive measures in this country found the UK to be non-compliant on obligations for politically exposed persons and correspondent banking, and it had concerns about record keeping in shell banks. Will the Minister give the House an assurance on all the other recommendations made by the FATF in June 2007, including institutional concerns, for example, as to why the UK does not maintain comprehensive statistics on cross-border disclosures or the breakdown of offences and the number of requests granted for mutual legal aid assistance? I tabled Amendment No. 61B to compensate for the scrutiny gap that comes with the speed with which these powers are being introduced. We are grateful that the Minister has decided to include the annual report to Parliament, which we considered to be the biggest gap in the amendments that were initially brought forward. My amendment is intended to probe what would be in that report. I would not want to see the amendment added to the Bill, because by specifying exactly what should be in the report, one is bound to overlook something. It would then be said, “That is not in the report because it was not specified”. I would very much like the Minister to comment on the specific issues raised by my amendment. Of particular concern is the fact that under proposed new paragraph 3(1)(a), the Treasury can issue a direction to a particular person, which could be a financial institution, without any sort of parliamentary oversight. For directions that apply to a sector, on the other hand, an order would have to be laid before Parliament. The Minister’s team tells me that the reason why individual firms could not enjoy the same parliamentary protection is that it would be resource-intensive and would waste time. However, they also told me that they do not imagine that the power would be used very often; but those arguments seem somewhat contradictory. How often do the Government anticipate using these powers to issue directions to sectors and particular persons? I recognise that that might be a difficult question to answer, but there must be a little bit of history to rely on. The government briefing suggests that they are ready to use these powers in relation to Iran. Perhaps that provides some indication of the number of occasions on which they intend to use them, if they have carefully looked into this matter. Because of these concerns, my amendment requires the justification of the use of a direction against a person, rather than a sector. My amendment then requires the Government to provide a breakdown of each of their three new powers and the countries to which they will apply. In addition, I specify that the Government should disclose the names of businesses affected and a summary of the intelligence that backs up the decisions, with a safeguard specified at the end of my amendment that national and commercial interests should be protected. That detail may be so redacted as to be somewhat worthless, but I have included it as a discussion point for the Minister. In a major piece of new legislation we need as much detail as possible on what will be in the report. I would be grateful for replies on those issues.
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  • Speaker
    Lord Harris of HaringeyLord Harris of HaringeyLabour
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    My Lords, like the noble Baronesses, Lady Neville-Jones and Lady Miller of Chilthorne Domer, I support the general thrust of this group of amendments, which are important in addressing a genuine and real problem. Like them, too, I have some concerns about the amount of time that noble Lords have had to consider the amendments, but I am particularly grateful to my noble friend Lord Myners for the considerable efforts that he has made in the past week or so to allow the fullest possible consideration of these detailed changes. One of the problems with these provisions appearing in a counterterrorism Bill, as they have had to because of the timetable with which we are now faced, is that this will lead, when the powers are used, to the sort of comments that we have heard in your Lordships’ House today about the use of so-called counterterrorist powers in freezing the assets of Landsbanki. That is unfortunate because, as I understand the situation, the powers used in that case were not specifically counterterrorism powers but, as they resided in a Bill that was primarily about counterterrorism, the assumption was that they were. There is a danger that a similar situation will arise in respect of these provisions, which are, quite properly, much broader than counterterrorism, because they will reside in what will ultimately be an Act that relates to counterterrorism. That is a problem that we have to face and the greatest possible clarity must be given to explanations relating to this. I have a specific question, which I hope that my noble friend can answer. He assured us that estate agents, casino owners and lawyers were not the subject of this Bill. We all acknowledge that they are popular categories of persons among some of your Lordships, but I wondered whether paragraph 8(1) of the new schedule would enable the Treasury to amend the paragraphs to which it refers to include other categories of persons. Perhaps we may have some clarity on that when my noble friend replies. My general point is that, if a country’s arrangements are so weak that it is easy for people to engage in money-laundering activities, the financing of terrorist activities or the financing of weapons of mass destruction, it is imperative that as a nation we have put in place powers that mean that people in this country who are engaged in trade or financial transactions with those countries are subject to the widest possible warnings and the widest possible expectations of what they should do to safeguard the position. Without such powers, we may not know what people in this country are implicitly supporting in terms of money-laundering. These provisions are important for that reason.
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  • Speaker
    Baroness Carnegy of LourBaroness Carnegy of LourConservative
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    My Lords, I underline what the noble Lord, Lord Goodhart, said as chairman of the Delegated Powers Committee. These are quite complex amendments; I find them extremely complex to read, as they relate to the area that I normally do not think about at all—finance. However, they are an important proposed addition to the Bill and no one is objecting to them. The noble Lord, Lord Goodhart, pointed out that not only does the House have to consider the amendments at short notice but the Delegated Powers Committee has to, too; it is meeting tomorrow. Having been a member of that committee, I know that quite often there are emergency meetings—they have to happen—and that the committee attempts to respond to emergencies. However, from what we have been told, this is a somewhat unnecessary emergency. The Delegated Powers Committee could make a mistake because of speed. I do not suggest that it will—I am sure that it will not—but it could. The Government should not move the amendments today but should wait until Third Reading so that the House can consider what the Delegated Powers Committee says. The order-making powers in the amendments are important and this simply must not be done wrong. That may sound a silly suggestion to the Minister but I do not think that it is; the Government would do well to wait and move the amendments at Third Reading, when the House could consider the whole thing properly.
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  • Speaker
    Lord Mayhew of TwysdenLord Mayhew of TwysdenConservative
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    My Lords, I endorse what has been said about the general thrust of the amendments, which I of course support, and what my noble friend Lady Carnegy said about complexity and the dangers that go with attempting to legislate at such speed, albeit in necessary circumstances. I have one small point to raise, which I have not made the subject of an amendment. It is a faint point that I raise in the interests of consistency about the drafting in line 213 of government Amendment No. 61A, which is to be found on page 12 of the Marshalled List that was published on 7 November—I hope that there has not been a subsequent one. My point gives rise to the question whether there is any difference in meaning between undertaking enhanced customer due diligence measures and taking enhanced customer due diligence measures. This is very much a nit-picking point but nits, if left undealt with, can turn very toxic. It is a point for Committee, but there is no opportunity to take it elsewhere. Paragraph 10(1) of the proposed new schedule, beginning on line 213, states: “A direction may require a relevant person to undertake enhanced customer due diligence measures”. Paragraph 10(2), states: “The direction may do either or both of the following … impose a general obligation to take enhanced customer due diligence measures”, and so on. Immediately after that, we read that the direction may, “require a relevant person to undertake specific measures identified or described in the direction”. I do not think that a technical distinction is intended between taking and undertaking enhanced customer due diligence measures. Paragraph 11(2) states: “The direction may do either or both of the following … impose a general obligation to undertake enhanced ongoing monitoring”, and so on. There is scope for tidying this up, in case leaving it at large gives rise, in some later litigation, to a quite unintended distinction and to difficulty.
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  • Speaker
    Lord Thomas of GresfordLord Thomas of GresfordLiberal Democrat
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    My Lords, I shall speak to the amendments in my name. One problem with legislation being produced in this way at a very late stage in the consideration of a Bill is that it is impossible fully to understand its purpose. Consequently, my amendments are largely directed at clarification and are probing. I do not propose to refer to Amendment No. 61AC but, so far as concerns Amendment No. 61AD, I ask the Minister why offences of this nature require jurisdiction throughout the United Kingdom. Paragraph 34 of the new schedule proposed in Amendment No. 61A says: “Where an offence under this Schedule is committed … proceedings for the offence may be taken at any place in the United Kingdom, and … the offence may for all incidental purposes be treated as having been committed at any such place”. I follow the argument that it mirrors the provisions of Clause 29 in the Bill but I am not sure why it is applicable to offences of this type. I look forward to hearing the explanation. My next amendments refer to the time limits of summary proceedings in paragraph 35 of the proposed new schedule. Normally magistrates’ courts have limited jurisdiction for six months and sometimes 12 months, but apparently jurisdiction may be claimed in a magistrates’ court, “at any time within three years after the commission of the offence, and … within twelve months after the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings comes to the knowledge of the prosecutor”. Why do we require the jurisdiction of magistrates to be extended in this way? Paragraph 35(4) states that, “a certificate of the prosecutor … as to the date on which such evidence … came to their notice is conclusive evidence”. In other words, the prosecutor can say, “Well, we didn’t think in this particular month that there was a case but we did in a later month, and that is conclusive. Our view is absolutely conclusive as to when the time runs”. That strikes me as an odd sort of provision, which goes against many of the principles relating to time limits in a magistrates’ court. With regard to paragraph 36 and my remaining amendments, I question why an officer of a company or of a body corporate should be guilty of an offence not if he or the company does something with his connivance or consent but merely if he is neglectful. Why do criminal sanctions have to be applied and why is negligence brought into the criminal concept in this schedule? I should be grateful for explanations. Had we had these provisions before us at the beginning of our consideration of the Bill, there would have been no need for these questions to be raised. However, they have been thrown at us at the very end, when we have only Report and Third Reading in which to take stock of what is being assessed. That makes it extremely difficult for us to pass legislation, particularly when it appears to be in breach of some of the principles of jurisdiction and of the time limits to which we have always adhered in this country.
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  • Speaker
    Lord MynersLord MynersCrossbench
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    My Lords, this has been an interesting, helpful and illuminating debate, and I thank all those who have participated in it. I also recognise that there is a great deal of good will in the House on this issue, for which I am very grateful, as I am for the constructive basis of the comments that have been made. I shall endeavour to cover the various comments and questions. If I fail to deal with any of them, I shall examine Hansard and communicate with an explanation with those who participated in the debate. I start by thanking the noble Baroness, Lady Neville-Jones, for her helpful contribution and expression of support. I have apologised for the lateness with which this legislation has been brought to the House but have explained that we judge it to be a matter of urgency. The point about lateness was also made by a number of other Peers, including the noble Baroness, Lady Miller, my noble friend Lord Harris and the noble Lord, Lord Thomas. I apologise to them as well for the lateness. I also appreciate, however, that the noble Baroness, Lady Neville-Jones, said that she regards this Bill as in some ways the least-worst option as the carrier for this particular legislation. My noble friend Lord Harris made a point about the affirmative order on the Landsbanki freezing and was right to point out that the full wording of the Act was not limited to terrorism but had wider coverage. That is also the case with this Bill.
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  • Speaker
    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    My Lords, before the Minister leaves the point about lateness, will he comment on the fact that the FATF made the evaluation in June 2007? The Treasury has had over a year.
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  • Speaker
    Lord MynersLord MynersCrossbench
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    My Lords, I was going to come to that issue. I shall do so promptly. The first thing to note is that the UK’s record is among the most compliant in the world on FATF measures. No country is able to satisfy all the FATF conditions but we have a very strong record of achievement in that respect. We have taken action more recently to comply with further FATF requirements, including new money-laundering regulations in December 2007, and we have brought in regulations on politically exposed persons and shell banks. So we have taken action to address some of the areas where the FATF said that we could do better. We wish to be exemplary and lead others in the actions that we are taking. The noble Baroness, Lady Neville-Jones, asked whether there would be a civil or criminal penalty. Each supervisory body has an established set of guidelines and precedents from the wider money-laundering regulations. They will adopt the same approach here as they are already using in the implementation of those regulations. In particular, they will take into account the nature, seriousness and impact of any non-compliance. Generally, I would expect civil penalties to be applied when a failure to comply is less serious in manner and consequence. The noble Baroness, Lady Neville-Jones, also asked about the use of the term “appropriate”. This replicates a provision in the money-laundering regulations and will depend on the circumstances of the case. Circumstantial factors that will be taken into consideration include the deterrent effect and the size and capability of the financial resources of a firm that might be in receipt of a civil penalty. The noble Baroness, Lady Neville-Jones, asked about legal privilege. The approach to legal privilege in the Bill and in this amendment will be carried over from existing money-laundering regulations. Supervisors are open about their policies on handling issues of legal privilege. For instance, the FSA has a number of guides on its website, such as the Decision Procedure and Penalties Manual and the Enforcement Guide Review 2008, which usefully highlight its approach to such issues. Furthermore, enforcement officers will have ready access to legal advice about privilege. The issues of legal privilege raised here are therefore very similar to those that already arise under existing legislation. The noble Baroness, Lady Neville-Jones, also asked about HMRC and the amendment of its review procedures. HMRC has not yet finalised the order amending its review procedures, so I am unable to say exactly what final form they might take. The order will be an affirmative resolution order, so the House will have an opportunity appropriately to consider it. I believe that the noble Baroness, Lady Neville-Jones, asked about the functions of the tribunals set out in proposed new paragraph 28(6). These have not yet been transferred to the first-tier or upper-tier tribunal. Until that happens, the Treasury will need to make an order providing for appeals to be made to the existing tribunals. The noble Baroness, Lady Neville-Jones, raised two other issues on which I shall comment. She asked that we agree to review various pieces of legislation providing for powers to impose financial restrictions and consider the need to consolidate them. I fully agree with the request; it makes considerable sense, and we wish to avoid any situation where there are inconsistencies. We will do that as soon as we can in a manner consistent with doing the job thoroughly and professionally. Finally, she asked whether we wanted further to amend the Long Title of the Bill. I am very happy to give that further consideration. I am grateful to the noble Lord, Lord Goodhart, for his comments and to the noble Baroness, Lady Carnegy, for her observations on the Delegated Powers and Regulatory Reform Committee. In my short time in Parliament I have come to appreciate the respect and authority which this committee commands among noble Lords. We look forward to seeing the outcome of its consideration of the Bill when it meets tomorrow, and noble Lords will have ample opportunity to take its comments into consideration when the Bill comes back to the House. I apologise to the committee again that it is being placed under time pressure, but I do so in the knowledge, based on everything that I have been told, that it will do a thoroughly professional piece of work despite the time pressure under which we have placed it. I have already partly addressed the comments of the noble Baroness, Lady Miller. The UK is, as I say, largely compliant with a significant number of the FATF’s measures of effectiveness and among the best jurisdictions. On this basis, only the USA and Belgium scored higher than the UK. She asked why we are acting only now. That is an aspect of the lateness question. There has been a changing dynamic in the FATF. The way in which it is operating means that, among other things, we have concluded that we need the power to take unilateral decisions if necessary. I cited in particular the difficulty we had with using countermeasures and whether those were included in any statement made by the FATF. This problem became evident to us only at the October meeting of the FATF. We realised then that we had a problem of which we were not previously aware because the FATF was changing the way in which it was approaching issues and the language it was using in its recommendations. The noble Baroness, Lady Miller, asked whether we will use the powers against Iran. The Prime Minister, in his powerful speech at the Guildhall last night, urged Iran to be part of a world that is addressing the issues of terrorism and to pull away from any actions designed to facilitate the proliferation of weapons of mass destruction. We want that to be the case and will use all our diplomatic resources to secure that objective. At the same time, we recognise that Iran may not choose to do that. If that is the case, the legislation will contain powers that we would be obliged to consider in certain circumstances if the evidence so justified. I believe that I have dealt with the point raised by the noble Baroness, Lady Carnegy, about waiting for Third Reading. Obviously, we await the outcome of the Delegated Powers and Regulatory Reform Committee meeting under the chairmanship of the noble Lord, Lord Goodhart, tomorrow. I shall now give the government view on some of the amendments. I thank the noble Baroness, Lady Neville-Jones, for raising the point about proportionality. Proportionality is a very important requirement for the operation of any administrative power of this type, and I can assure the House that it will be a key consideration in the exercise of these powers. In any use of these powers, Ministers will seek to balance the need to take effective action against the potential impact on UK business. That will require careful consideration of the money-laundering, terrorist-financing or proliferation risks, and of the burden of any requirements imposed on business. I am therefore happy to recognise the need for proportionality in the Treasury’s exercise of the powers. If the noble Baroness will be content, the Government will therefore table an amendment at Third Reading to include a provision that gives proper effect to that. I understand the reasoning behind Amendment No. 61AB, but it would remove an important provision that it is necessary to retain. The Treasury needs the ability to act quickly, if necessary, to give effect to orders containing general restrictions, but these should be subject to ultimate parliamentary approval. Removing the provision could unnecessarily inhibit our ability to act. However, let me reassure the House again that we will be concerned that use of the powers does not impact unduly on business. To that end, I have given a commitment to establish a formal requirement for proportionality. Nevertheless, there may well be circumstances where a direction will require businesses transacting with jurisdictions of high risk to limit or cease business. In some cases, that will require the cessation of current business, and it is important that we can implement that power quickly. It will, of course, be possible for any firm affected by a direction to apply for a licence to exempt transactions from its scope. That will be an important means in appropriate cases for firms to mitigate the effect of any direction. Where an order is not approved by Parliament, I can assure the House that we would consider the circumstances carefully to see whether compensation is justified. Ultimately, the courts could in appropriate cases consider whether a firm was due any compensation as a result of actions taken to comply with a direction that subsequently ceased to have effect or as a result of an order failing to secure approval. I therefore cannot agree to the amendment, but I hope that the noble Baroness, Lady Neville-Jones, will be satisfied with that response. I appreciate the points made in the tabling of Amendment No. 61AC, but it is important to retain that provision, which provides an appropriate sanction for people who attempt to obtain a licence by duplicity. We have made provision for a licensing regime to enable the Treasury to reduce any avoidable impacts on third parties from a direction requiring the limitation or cessation of business. I understand the significant issues mentioned by noble Lords in respect of Amendment No. 61AD. The provision has a dual purpose: to give UK courts jurisdiction over offences committed outside the UK; and to provide for UK-wide jurisdiction for offences regardless of where the offence took place. I say to the noble Lord, Lord Thomas, that such provisions in respect of offences committed outside the UK exist in other legislation—for instance, in Section 17 of the Terrorism Act 2006. We consider that such provision is necessary, given that directions may apply to action outside the UK and that offences may be committed by action outside the UK. The provision replicates Clause 29, which deals with specific terrorist offences. Given the nature of the offences that we are discussing in relation to these powers, namely the breaching of directions, I accept that they are of a different order to such terrorist offences, and that there is therefore less requirement for such provision in relation to offences committed in the UK. Therefore, although I cannot agree to the amendment, the Government are prepared to table an amendment at Third Reading so that the provision applies only to offences committed outside the UK. Amendments Nos. 61AE to 61AK all concern the same principle of the appropriate time limits for summary proceedings across the three jurisdictions in which prosecutions might be commenced. I believe that it is necessary to provide for extensions of the standard time limits due to the nature of the offences concerned. In these circumstances, it is quite possible that an offence may not come to light for some time, and that the subsequent investigation into it may be a complicated process involving the analysis of large amounts of documentation and computer records concerning complex transactions. Furthermore, it is not unusual to extend the time limits by this amount. I note it has been done, for instance, in the Terrorism (United Nations Measures) Order 2006; by Section 1128 of the Companies Act 2006; and by Section 431 of the Insolvency Act 1986. I hope that that will reassure the House that the provisions are useful and consistent with other legislation, and that noble Lords will understand why I cannot agree to the amendments. I note the points made by the noble Lord, Lord Thomas, on Amendment No. 61AL, but this is not an unusual provision. It is simply designed to prevent unjustified delay to any proceedings resulting from argument over precise dates. Similar provisions exist in other legislation, including the legislation I just mentioned. I shall deal with Amendments Nos. 61AM, 61AN and 61AP together, as they concern the same issue: that if an offence committed by a company is shown to be attributable to neglect of an officer of the company, the officer is guilty of an offence as well. Subsequent sub-paragraphs in the schedule replicate that provision in respect of partnerships and unincorporated associations. I appreciate the concern of the noble Lord, Lord Thomas, that that makes individuals potentially liable for non-compliance with a direction. However, I think that that is justified. It is a standard provision in relation to criminal offences that may be committed by a company, and it replicates the existing situation under the money-laundering regulations. Similar provisions exist in a number of other pieces of legislation, including the Energy Act 2004, the Animal Welfare Act 2006 and Section 78 of the Anti-social Behaviour Act 2003. An important point was raised in connection with Amendment No. 61B. We are keen to provide Parliament with appropriate information on the Treasury's use of the powers. Paragraph 38 of the schedule makes provision for the Treasury to submit an annual report to Parliament that sets out how it exercises those powers. The noble Baroness, Lady Miller, said that that was a probing amendment. She kindly said that it was in the nature of these things that whatever one listed, there would always be something that one forgot—rather like packing for a holiday—so it is probably not right to be prescriptive about the content. However, the general sense of the points that she made is well taken. The Government feel that their approach is the right one from a legislative point of view. It would be unusual for specific details to be included in primary legislation. Given that much of this information would already be in the public domain as a result of the Treasury providing it to Parliament for the making of an order and/or subsequently publicising directions, it would be helpful to maintain some flexibility in the preparation of each report. I assure noble Lords that the Government intend the Treasury’s annual report to be helpful and informative. On Amendment No. 61A, I should point out that guidance by industry bodies and supervisors has been of great assistance in enabling firms to implement the money-laundering regulations consistently and on a risk-sensitive basis. This guidance was developed by the supervisors and industry-led bodies, and was ultimately approved by the Treasury. The Treasury expects in this instance as well to help supervisors and others to develop guidance to ensure that any directions issued under the legislation can be implemented effectively and without undue burdens on business. We have begun initial discussions and engagement with the industry, including the British Bankers’ Association, to consider potential issues of implementation. Given this, I am ready to table an amendment at Third Reading to provide for such assistance to be given, although such a provision is not strictly necessary. We will consult noble Lords on the wording of that amendment. I can best say to the noble and learned Lord, Lord Mayhew, that I undertake to consider the point that he made about drafting. We will bear in mind his careful and precise observations. In conclusion, I thank all noble Lords for their constructive engagement. I hope that I have been able to respond fully to their questions about these important issues. If I have failed to do so, I apologise. I will be happy to answer any questions that I may have missed. Alternatively, I will write to noble Lords and to those who have participated in the debate. I very much hope that the House will support the amendment—again, I apologise for its late appearance—and that it will also support the other government amendments in this group.
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    Lord GoodhartLord GoodhartLiberal Democrat
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    My Lords, will the Minister clarify one point? When dealing with what the noble Baroness, Lady Carnegy, said, he used words that indicated that he might be proposing to accept what she suggested and to delay adopting these amendments until a later date. I should make it clear on behalf of the Delegated Powers and Regulatory Reform Committee that I did not and would not ask for that, because we can deal adequately with any necessary amendments by tabling them at Third Reading as amendments to the new schedule.
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    Lord MynersLord MynersCrossbench
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    My Lords, I thank the noble Lord for giving me the opportunity to clarify anything that I misspoke, as Mrs Clinton would have said. He correctly summarised my intention, for which I thank him. On Question, amendment agreed to. Clause 62 [Application to set aside asset freezing decision]:
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    Lord MynersLord MynersCrossbench
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    moved Amendments Nos. 47B and 47C:
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    Lord MynersLord MynersCrossbench
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    moved Amendment No. 47D:
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    Lord MynersLord MynersCrossbench
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    moved Amendments Nos. 47E and 47F:
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    Lord MynersLord MynersCrossbench
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    moved Amendments Nos. 47G and 47H:
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    Lord MynersLord MynersCrossbench
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    moved Amendments Nos. 47J to 47N:
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    Lord MynersLord MynersCrossbench
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    moved Amendment No. 47P:
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    Lord MynersLord MynersCrossbench
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    moved Amendment No. 47Q:
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    Lord MynersLord MynersCrossbench
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    moved Amendment No. 47R:
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    moved Amendment No. 48:
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    Baroness SternBaroness SternCrossbench
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    My Lords, I am grateful to the noble Baroness, Lady Miller, for dealing with this matter in Committee and again today so very effectively. I have added my name to the amendment in order to support the noble Baroness. I have little to add, except to say that we now have two inquests pending. Two people have been killed in circumstances that require an inquest. Until the law is clarified it seems that these inquests will remain in limbo. The Minister has encouraged us to look forward to the forthcoming coroners Bill. Even if that were to take place as we have been led to expect and the inquest was subsequently dealt with expeditiously, the family would have had to wait at least four years before there was a conclusion to the matter. If the forthcoming legislation does not come in as planned, it may be very much longer for the first case that we are discussing. The obligation under Article 2 of the European Convention on Human Rights to have a prompt inquiry into a death at the hands of an agent of the state is a heavy one. It is a vital part of the state’s accountability to its citizens. At the moment, this cannot happen in those cases because of the anomaly that this amendment seeks to remove. As the noble Baroness, Lady Miller, has said, I, too, hope that the Minister has had second thoughts about his objections to this provision and will be able to support what is being proposed.
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    Lord West of SpitheadLord West of SpitheadLabour
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    My Lords, I was glad that the noble Baroness, Lady Miller, said that she did not intend opening the whole debate as regards moving details of coroners and inquests from this Bill. After very extensive consultation with noble Lords, we correctly decided that it was best to withdraw this aspect and that we would address it in the context of a much more detailed look at all aspects of coroners and inquests in future legislation. There has been mention of ongoing cases. Clearly, I cannot touch on or talk about those in the Chamber. All I would say, even though I know that the noble Baroness, Lady Miller, did not mean to raise the issue in that way, is that we have to be very careful about raising issues such as “shoot-to-kill” as if it is something that is under way. It is very dangerous to mention that on the Floor of the House because there is no way that that is the case. I shall address in detail some of the points made. It is worth saying again that, for a number of reasons, sensitive material cannot be publicly disclosed without harming the public interest. Such material can cause great damage to national security and police investigations of serious organised crime. Indeed, in terrorism cases we have seen how rapidly the people who wish to cause us harm pick up on the techniques we use. Even if they are mentioned only a little bit, those people react by not using certain equipment and so on. As has been said, Article 2 of the ECHR makes it obligatory to hold an investigation into deaths in certain circumstances; there is no discretion not to hold such an investigation. Accordingly, and unlike in the case of criminal prosecutions, the state cannot protect this sensitive material simply by discontinuing the investigation. A means must be found for bringing sensitive material before an independent fact finder while protecting the public interests involved. In order to address this problem in relation to inquests, we intend to bring forward proposals in legislation regarding coroners. That would permit the Secretary of State to issue a certificate requiring an inquest to be held without a jury if, in the opinion of the Secretary of State, the inquest would involve the consideration of material that, in the public interest, should not be made public, including to a jury or interested persons. As a result of certification, the finder of fact would be a coroner rather than a jury, as already occurs in 98 per cent of inquests. The coroner, who would continue to be a fully independent judicial office holder, would be security cleared to receive all relevant material. Any parts of the inquest involving the consideration of material which should not be disclosed publicly would be held in private in the absence of the next of kin. Where necessary, the coroner would be able to appoint independent security-cleared counsel to the inquest to represent the interests of the next of kin and probe all the relevant material on their behalf, including the sensitive material, thereby ensuring that the interests of the family are properly protected. The inquest would, of course, continue to take place in public as far as possible and the next of kin would be able to attend all public sessions with their legal representatives where they have them. Taken together, these proposals will ensure that coroners’ inquests can always be compatible with Article 2 of the ECHR. I have to disagree with the noble Baroness, Lady Miller, because I believe that Amendment No. 48 would allow for the wide disclosure of very sensitive intercept material not just to the coroner but also to juries and other interested parties such as bereaved families. This creates the potential for public disclosure of all intercept material regardless of sensitivity, thereby undermining the very real need in some circumstances to protect from public disclosure such material and the capabilities and techniques by which it was obtained. While Amendment No. 48 would, in principle, allow the finder of fact to have access to all the relevant material, it does so at the expense of preserving the “ring of secrecy” which is necessary to protect sensitive techniques, capabilities and sources. It cannot be overemphasised how valuable those capabilities are to the nation. Certainly for over 40 years in peace and war, I have made use of those capabilities; I know that they save lives and help us stop those who want to damage our nation. Disclosure of intercept capabilities would have a real and damaging impact on our ability to gather the intelligence that is vital to our national security. The Chilcot review on intercept as evidence recognised this, and that is why we are taking forward a detailed programme of work to ensure that we can meet the tests set out in the review and allow intercept to be used safely, without putting national security at risk. This amendment affords no safeguards or protections. We recognise the importance of ensuring that bereaved relatives and other properly interested persons should be involved in as much of an inquest as possible. But it is necessary to strike a balance between the interests of the families and the public interest when there is material that is central to the inquest but which cannot be disclosed publicly. We are confident that the measures we intend to bring forward in coroners’ legislation, with the relevant safeguards, will strike the right balance of enabling the coroner to consider all the relevant material while protecting sensitive material from public disclosure contrary to the public interest. I am aware of the delay—it is an unpleasant and unfortunate delay—but it is right that we should get this legislation correct because we are considering issues that are so important to the nation that we cannot afford to rush it. I know that two cases are outstanding, but this has to be right. The Government will therefore resist Amendments Nos. 48 and 62, which makes a consequential amendment to the Long Title adding a reference to inquests.
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    Baroness Carnegy of LourBaroness Carnegy of LourConservative
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    My Lords, the amendment is drafted entirely in relation to England and Wales, and the Minister’s reply is likewise drafted. Presumably future legislation in so far as it deals with matters related to terrorism, which are reserved under the Scotland Act, must be put right in relation to the whole of the United Kingdom. Will the future coroners’ legislation he referred to be balanced by Scots legislation that does the same thing?
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    Lord West of SpitheadLord West of SpitheadLabour
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    My Lords, I shall get back to the noble Baroness on that. I am not trying to forget Scotland—I was educated there—but there are some difficult nuances that we found during our work on the Bill. I shall respond in writing.
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    My Lords, I am grateful to the noble Baroness, Lady Stern, and the noble Lord, Lord Kingsland, for their support. I am very disappointed with the Minister’s reply because it does not take us any further forward than his response in Committee. In my opinion he has not addressed the question of why a High Court judge can assess such material in criminal procedures of every other kind when coming to a judicial view as to what material should not be disclosed, but not in inquests. I do not feel that the Government’s position is logical. The Minister took me to task by saying that it was dangerous to use a phrase like “shoot to kill policy”, and I agree that it is. I said in my introduction that we must avoid at all costs a view on why agents of the state act in this way. However, the only way to make such a judgment is through holding an inquest to discover what actually went on. In the absence of any further explanation than we had in Committee, I have no option but to test the opinion of the House.
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    Baroness Neville-JonesBaroness Neville-JonesConservative
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    moved Amendment No. 48A:
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    Lord Carlile of BerriewLord Carlile of BerriewCrossbench
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    My Lords, as I have said before, I intervene rarely in these debates as the independent reviewer of terrorism legislation, but I thought that I ought to intervene on this occasion because I think that I am largely responsible for the idea that the term “racial” should be inserted into the definition. I shall explain why. I was asked to carry out a review of the definition of terrorism in UK law and did so. In carrying out that review, I issued a call, which was advertised publicly, for papers and for views. I received a great many written views in formal documents, by e-mail and in other ways. I also took a roving seminar out to five major cities. I was assisted in inviting to those seminars members of the public, members of the academic community and members of community groups. The attendance at the seminars was variable but overall they were well attended. One of the messages that came across from the representations that I received was that black and minority ethnic communities felt that the inclusion of a term such as “racial” in the definition would make it clear that activities such as those of, for example, the white supremacist movements that have arisen in certain parts of the United States could, in certain circumstances, be regarded as terrorist activities. It seemed important that, if we could do so without damaging the definition in any way, we should meet those concerns, so I recommended that the term “racial” should be added, or something along those lines. I am not sure, if I may say so with respect, that it is helpful to parse the words and their many possible meanings on the Floor of either House of Parliament. I think that I could argue the case for “racial” being distinct from the other words that are included, “political, religious or ideological”. That does not mean that every racial cause would be treated as terrorist. Every ideological cause is not treated as terrorist; for example, it has become the practice to deal with animal rights terrorism not using terrorist provisions—at least, wherever possible—but under criminal law without giving the protagonists the cachet of regarding themselves, or being regarded, as terrorists. The same could apply to racial causes. I say to your Lordships, without delaying the House further, that the term is included to meet a perception that is potentially damaging to the reputation of the law and which can be met without doing any damage to the integrity of the law.
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    Lord West of SpitheadLord West of SpitheadLabour
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    My Lords, as has been said, this amendment to the definition follows recommendations by the noble Lord, Lord Carlile. We accepted this recommendation in our response to his report on 7 June 2007. The change in the definition of terrorism is an opportunity to make it clear that terrorism includes acts and threats done for the purpose of advancing a racial cause. I do not deny that acts of terrorism motivated by a racial cause are already covered by the definition, since such acts are also likely to be political or ideological. However, the same could also be said of acts of terrorism motivated by a religious cause, but Parliament chose to include religiously motivated terrorism in the definition of terrorism. The position that I have elaborated on makes it important that we now include racially motivated terrorism in the definition. The reason is that, with the exclusion from the definition of racially motivated terrorism and the inclusion of religiously motivated terrorism, there is potential for an argument to be made that racially motivated terrorism has been specifically excluded. More important, there is an opportunity for perceptions to be formed about that. As the noble Lord mentioned, this came out strongly in all his regional visits and the various seminars that he held. That argument can be developed, too, as religious and racial motivation are so often intertwined in other pieces of legislation—for example, in racial and religious hatred and racially and religiously aggravated offences. Racial motivation is also referred to alongside other motivations, such as religion and politics, in the definitions of terrorism used by the United Nations in Resolution 1566 and by the Council of Europe Convention on the Prevention of Terrorism. As I said, perception is important and we should be clear that those who commit acts of terrorism with a racial motivation are covered by our legislation. We are making this change to the definition of terrorism following a long and detailed study on the issue by the noble Lord, Lord Carlile, who has just made the case for it far more eloquently than I could. We believe that the change will help to clarify our legislation. As I made clear on the first day of Report, I have made every effort to take the Bill forward on a consensual basis. Where possible, we should all try to reach agreement on measures that are relatively uncontentious and relatively minor in their effect. This is such a measure and I have heard nothing said today that would suggest that retaining this clause in the Bill would cause any problems. It therefore seems odd that this is something on which the House could possibly divide. Where there are major differences in this House we should of course put the issue to the vote; I would expect that to be the case. This does not seem to be such an issue, however, and I ask the noble Baroness to withdraw the amendment.
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    Baroness Neville-JonesBaroness Neville-JonesConservative
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    My Lords, I confess that I remain unpersuaded that it is a good idea—or good legislation—to introduce unnecessary categories, but I shall leave it at that. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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    Baroness Manningham-BullerBaroness Manningham-BullerCrossbench
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    My Lords, what I have to say is not about the merits or otherwise of control orders, which is subject to another debate. In my experience, prosecution is always preferred as the answer to dealing with some of these problems. Control orders came into being for those cases where the evidence was insufficient or did not exist sufficiently because it was based on intelligence. People from my service and the police always prefer prosecution if that is feasible. Secondly, from my experience, and perhaps without the formality of the second amendment, the case for prosecution was regularly reviewed, much more frequently than every three months. It was far preferable to go down that route if at any stage it was possible. The case for prosecution was constantly and regularly considered. As to whether the Secretary of State has available to her material that is not available to the police, I find that really strange. The intelligence that my service and others produced was shared with the police and summarised for the Secretary of State or given to her in its entirety if she so wished. I am mystified by the suggestion that the police would not have access to that material, because that is certainly not my experience. I am not taking a view on the amendment as such, but that is the background from my experience of how these cases are handled.
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    My Lords, the Minister will know that we on these Benches have always had worries about control orders and their continued use. The words of the noble Baroness, Lady Manningham-Buller, provide some reassurance but we support the added reassurance contained in the amendments.
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    Lord West of SpitheadLord West of SpitheadLabour
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    My Lords, with this and a subsequent group of amendments, we are returning to control orders. I am grateful that noble Lords listened to the explanation in Committee of the Government’s position on the JCHR amendments on control orders, to the extent that not all those amendments have been retabled on Report. I note, however, that these amendments are essentially the same as those debated in Committee. Unfortunately, no account appears to have been taken of the Government’s concerns on the amendments, and I hope that I can convince noble Lords that our concerns are serious enough to ensure that this amendment is withdrawn. The amendments deal with points relating to the prosecution of controlled individuals. As I explained in Committee, and as has been supported by noble Lords, the Government’s preferred approach, when dealing with suspected terrorists, is prosecution. That is absolutely clear. So there is no disagreement between the Government and noble Lords on the principle to be followed; our disagreement concerns what is needed to achieve the desired results. Amendments Nos. 48B and 48C are not necessary to ensure that prosecution is always considered and kept under careful review. There are a number of robust safeguards already in place—some touched on by the noble Baroness, Lady Manningham-Buller—in the current legislative requirements to ensure that whenever possible, suspected terrorists are prosecuted rather than made subject to a control order. First, there is consideration of the prospects of prosecution before a control order is imposed. Under the 2005 Act, the Secretary of State must consult the police regarding the prospects of prosecution for a terrorism-related offence before making or applying for permission to make a control order. The police must then consult the Crown Prosecution Service. This consultation process already goes beyond what is expected in many investigations where the police decide whether or when it is necessary to consult the Crown Prosecution Service. The position is set out in a letter from the police to the Home Office and laid before the High Court as part of the court’s review of each order. This information is available to the controlee. The second key safeguard concerns the ongoing consideration of prosecution, where the 2005 Act rightly lays the duty of keeping the prospect of prosecution under review on the chief officer of the police force, who must consult the CPS as appropriate. The third key safeguard is fulfilled by the control order review group. During its quarterly meetings, the Home Office seeks the views of law enforcement agencies on the prospects of prosecution of controlees. As the noble Baroness, Lady Manningham-Buller, said, this is done almost continuously, because that is what we would like to achieve. The fourth key safeguard is the judicial review of each control order. If the public interest was demonstrably better served by prosecution of an individual against whom there was a sufficient evidence to prosecute, the order would be extremely likely to fail the test of necessity and so would be quashed by the High Court. This, as I outlined in Committee, was reflected in the court judgments in the case of E. It is interesting how that case seems to be quoted by those on both sides of the argument—but it seems to support what I am saying. These four key safeguards have been subject to extensive scrutiny by the courts. The current legislative provision and procedures have been accepted by the courts as adequate, including by the House of Lords in the E judgment, and ensure that, whenever possible, individuals who are or may become subject to control orders are prosecuted for terrorism-related offences. No changes to the legislation were required by the Lords. So that is the context in which we are considering these amendments. The absence of prosecutions of controlled individuals for terrorism-related offences, other than breaches of their control order, is not an indication that the current provisions have not been applied diligently. Rather, it demonstrates that at the time when the control order was made there was, and continues to be, no realistic prospect of prosecution. Moreover, since control orders are designed to prevent, restrict or disrupt individuals’ involvement in terrorism-related activity, it also arguably indicates that the control order against them has been successful in disrupting their terrorism-related activity. Amendment No. 48B proposes that non-urgent control orders can be imposed only if the Director of Public Prosecutions has certified that there is no reasonable prospect of successful prosecution. I want to start, as I did in Committee, by querying the basis on which the amendment is proposed. Successful conviction and imprisonment offers the best outcome for the protection of the public. For that reason, the strong preference of the Government, law enforcement agencies and the CPS is to prosecute suspected terrorists. This amendment rather supposes that the Government and law enforcement agencies would rather put suspected terrorists on control orders than prosecute them. There is no logical reason for that assumption; indeed, it is counterintuitive. That in itself should lead noble Lords to question the necessity of this amendment. As noble Lords who attended the debate in Committee will know, there are a number of reasons why the Government oppose this amendment. I remind noble Lords that this amendment was effectively explicitly argued for by a controlled individual in the case of E, where it was said that the lack of a reasonable prospect of prosecution was a condition precedent, or in other words a pre-condition, to making a control order. The Law Lords scrutinised this matter at length and explicitly rejected it. They concluded that no changes to Section 8 of the Prevention of Terrorism Act were required. Indeed, they considered that there were “strong practical reasons” for the current approach, and that changes would have the, “potential to emasculate what is clearly intended to be an effective procedure”. As I have explained, the Secretary of State is already statutorily obliged to consult the police on the prospects of prosecution before an order is made or applied for. The police are obliged to consult the CPS even where it is clear to them that there is not sufficient evidence to prosecute. However, this consultation, still less the results of that consultation, are rightly not a condition precedent of making an order. There are good reasons for this: providing certification by the DPP may not be practicable before the making of an order. Amendment No. 48B makes an exception for urgent control orders to try to address the urgency point highlighted by the Law Lords. None the less, it is not appropriate to include certification on the prospects of prosecution as a condition precedent. There are both principled and practical reasons for this, in addition to the issue of urgency. I set these out to the Committee, but I believe that it is worth reiterating those reasons. First, the amendment would undermine the constitutional position, effectively giving the DPP a veto over the Secretary of State’s decision to impose a control order. In other words, she would not be able to impose a control order even if she thought it necessary to do so to protect the public from a risk of terrorism, if the DPP said there was a reasonable prospect of prosecuting that individual. This is clearly inappropriate, as such decisions are properly a national security matter. I am sure that all noble Lords appreciate the potential dangers of interfering with proper constitutional arrangements. Secondly, and related to the first point, it could expose the public to an unnecessary risk from terrorism by leaving a public protection gap. It is not therefore just a dry constitutional matter. A control order may be necessary to protect the public from a 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. In those circumstances, a control order might be required in the interim to manage that risk. Thirdly, it could damage other investigations, other prosecutions, or otherwise damage the public interest. To reiterate the examples I gave in Committee, in rare circumstances the CPS may decide that a prosecution is not in the public interest, even if there is evidence available that may be sufficient to prosecute, perhaps because a prosecution could bring into the public domain a valuable intelligence-gathering technique, reducing its future efficacy, or the prosecution of a particular individual for a particular offence might damage a more complex, ongoing investigation of that individual and a wider group of individuals. This is not an issue limited to control orders or terrorism. In every case that goes to the CPS, even if the CPS concludes that the evidential threshold is met, it must separately assess whether a prosecution is in the public interest. This amendment covers only the first element. Fourthly, it would likely have the presumably unintended effect of reducing the initial judicial scrutiny of control orders. The operational reality is that providing an answer to whether an individual can be prosecuted is a much longer and more complex and resource-intensive task than simply beginning the process by consulting on the prospects of prosecution. Consequently, the amendment might well force the Government to use the urgency procedure more, when the national security case meant that a certificate could not be waited for any longer. This would mean that the normal requirement for the Secretary of State to seek permission to make the control order from the High Court would not apply. As a result, a valuable initial judicial oversight mechanism will not apply in a much greater number of cases, as it will simply not be possible to obtain the necessary response from the DPP prior to the need to make and serve a control order in the interests of national security. Fifthly, and on a point of detail, specifying the DPP personally rather than the relevant prosecuting authority is inappropriate. It is unusual to do so, places an unnecessary resource burden on that post and creates an unnecessary potential bottleneck. Nor would specifying the DPP cover control orders in Scotland and Northern Ireland. In summary, therefore, this amendment undermines current constitutional arrangements, potentially exposes the public to an unnecessary risk of terrorism and damages other national security investigations or the public interest, would likely reduce the initial judicial scrutiny of control orders, and inappropriately singles out the DPP. I hope that noble Lords will understand that whatever the intention behind the amendment, the effect is none the less damaging to the public interest. Amendment No. 48C deals with the ongoing review of the prospects of prosecution. This amendment contains a combination of inappropriate and unnecessary elements. Proposed new subsection (6A)(a) in the amendment proposes that the Secretary of State ensures that the prospects of prosecution are reviewed every quarter. This is an inappropriate interference in the current constitutional position. The CPS, not the Secretary of State, is responsible for considering whether a person should be charged with a criminal offence. Any shift in this responsibility could undermine the independent role of the CPS and the police. It is therefore inappropriate to require the Secretary of State to “ensure” the actions of a department not under her supervision or control. The CPS is independent of the Secretary of State. Nor does it make organisational or business sense to do so, as it cannot be sensible to task someone in relation to an organisation for which she is not responsible. It is perhaps worth reminding noble Lords of a passage from the House of Lords judgment in E, on the respective constitutional roles of the Secretary of State, the police and the CPS. It states that, “the Secretary of State does not control the prosecution process. The police investigate and the Crown Prosecution Service decide whether or not to prosecute. There are very good reasons for this division of responsibility: it injects an important element of independence and objectivity into the decision to prosecute”. The 2005 Act reflects this constitutional and organisational position. It already contains a statutory obligation on the chief officer of police to keep the possibility of prosecution under review throughout the period that the control order is in force. As the noble Baroness, Lady Manningham-Buller, already mentioned, that is done regularly. The CPS is also consulted as appropriate. As with the previous amendment, I am sure that noble Lords do not wish to undermine the accepted constitutional roles of the Secretary of State, the police and the CPS. Indeed, I have no doubt that noble Lords would express extremely grave concern about any government proposal that the Secretary of State should have a role in deciding whether an individual should be prosecuted.
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    Lord West of SpitheadLord West of SpitheadLabour
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    My Lords, before I speak to the amendment, I shall take the opportunity to mention one issue related to control orders that is not directly related to the amendment. In Committee, the noble Baroness, Lady Miller of Chilthorne Domer, moved her probing amendment to what is now Clause 77. The clause provides the police with powers of entry and search in specified circumstances. The noble Baroness expressed concern about whether the clause was sufficiently tightly worded, while acknowledging that it did not seem likely that the police would undertake any inappropriate search. In responding to the noble Baroness, I indicated that I would ask officials to take another look to see whether the drafting of the relevant powers could be improved to ensure the desired clarity in the Bill. I am pleased to say that we have now identified a form of words that will preserve the power of the police to search appropriate premises but that will also make clear that the right to search previous properties must be based on there being a current or recent connection between the controlled individual and the property. I propose to table an amendment to that effect at Third Reading. Amendment No. 48D is one of a group of amendments previously tabled by Members who sit on the JCHR and debated in Committee. All of them were concerned with ensuring that a controlee has the right to a fair trial accorded to him under Article 6 of the European Convention on Human Rights. As I explained in Committee, this issue has been considered at length, including extensively by the courts. One of the House of Lords judgments of October 2007, MB, dealt explicitly with the right to a fair trial in the context of control orders, as mentioned by the noble Lord. In MB, the Law Lords did not say that any control order case before them had breached the right to a fair trial, but the majority view was that, in rare cases, the provisions in the 2005 Act might lead to a breach of Article 6. The Law Lords therefore applied Section 3 of the Human Rights Act, to make the 2005 Act compatible with Article 6 in all cases. The Law Lords also concluded that the High Court should consider compatibility with Article 6 on a case-by-case basis. The cases before the Lords on this issue were referred back to the High Court. As a result of the MB judgment, the Prevention of Terrorism Act 2005 is fully compatible with the European Convention on Human Rights. No further changes were required by the Law Lords. The amendment seeks to amend the 2005 Act to reflect the read-down by the Law Lords in MB, but it also adds some additional wording that was not part of the read- down. I am afraid that the arguments put forward in Committee and again today that the amendment is necessary to provide legal certainty and fairness are simply wrong. The Government are clear that there is no need to legislate to reflect the principles formulated in case law as currently interpreted by the courts. As I explained to noble Lords in relation to the previous group, that is because we operate under a common law system. It is widely accepted that public authorities, among others, are bound not just by statute, but by case law. Case law can and does provide sufficient precision and clarity to comply with the important concept of legal certainty, just as much as statute can. It has been argued that without an amendment to the Act the position as a result of the Lords judgment is unclear and controlees are not guaranteed fairness. That assertion has no basis in fact. The proposed changes would be of no practical benefit to controlees. At the risk of repetition, as noble Lords know, both statute and case law are sources of legal authority. The courts interpret, and are bound by, both. Transposing identical wording from one source of authority to another—that is, from case law to statute—will not make any difference. It is also considered bad practice to legislate unnecessarily. For those reasons, proposed new subsections (3) and (4) in the amendment, which add in the exact words already effectively added to the Act by the MB judgment, are redundant. Proposed new subsection (5) makes a further amendment to paragraph 4 of the schedule to the 2005 Act. It is also unnecessary, for related but not identical reasons. It reflects the wording included in the asset freezing provisions in Clause 66(6). The provision in Clause 66(6) is included in the asset freezing clauses, instead of the words of the MB read-down, to give effect to the MB judgment in legislation to which the judgment did not directly apply but which makes provision for a comparable situation. There is no need to include the wording of Clause 66(6) in the 2005 Act, because the MB read-down already makes things clear for the 2005 Act. It would involve unnecessary duplication. The bottom line is that neither of the approaches is necessary, given the MB read-down. Proposed new subsection (2) is unnecessary for different reasons; those reasons mean that the subsection is also potentially damaging to the public interest. It amends Section 3(13) of the 2005 Act. Section 3(13) can only be understood in conjunction with Section 3(12). They read as follows: “If the court determines, on a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), that a decision of the Secretary of State was flawed, its only powers are … power to quash the order … power to quash one or more obligations imposed by the order; and … power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes … In every other case the court must decide that the control order is to continue in force”. Proposed new subsection (2) adds to the end of Section 3(13) the words, “except where to do so would be incompatible with the right of the controlled person to a fair hearing”, That was not part of the read-down by the House of Lords, because the read-down means that it is not a possible outcome of a control order hearing. If the court considers that disclosure of material would be contrary to the public interest, but that such material must in any event be disclosed for the controlee to have a sufficient measure of procedural protection, the Secretary of State will be put to her election. That means that the Secretary of State is then given a choice whether to disclose the information or withdraw it from the case. If the latter, the case then proceeds without that material included. Either way, the case continues in a manner compliant with Article 6. That means that a judge will never be put in a position where he has to uphold a control order where the proceedings have not been compatible with Article 6. There is thus no need for the qualification to Section 13(3) provided by proposed new subsection (2) in the amendment. If proposed new subsection (2) could be interpreted as going beyond the scope of the read-down, meaning that it was the court’s job to quash the order without first putting the Secretary of State to her election, it is also damaging to the public interest, because it would potentially expose the public to an unnecessary risk of terrorism. In summary, no element of the amendment is necessary or has any practical benefit. The amendment as a whole is not just unnecessary, it is also undesirable and potentially damaging to the public interest. First, it undermines the purpose of Section 3 of the Human Rights Act. As noble Lords will know, Section 3 states: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. That is in contrast to Section 4 of the Human Rights Act, which provides courts with the power to declare primary legislation incompatible with convention rights. By including Section 3 in the Human Rights Act 1998, it was clearly Parliament’s intention to give the courts the power to alter legislation where they felt that it was necessary and appropriate to do so in order to guarantee convention rights. No further corrective action is required by Parliament. Legislation that simply repeats a Section 3 read-down therefore has the potential to undermine the clear purpose behind Section 3 and is wholly unnecessary. I emphasise that the Government’s general policy is that we do not legislate to reflect read-downs by the courts on any issue where the read-down is sufficiently clear and precise. There is no need to take a different approach in this case. The read-down in MB is sufficiently clear and precise, and noble Lords opposite clearly accept that, because their amendment tries to replicate it. That brings me back to my previous point. What is the purpose of the amendment? A shift of wording from case law to statute serves no beneficial purpose. Secondly, the timing of the amendment is deeply unfortunate. There is ongoing litigation on whether controlled individuals have received a fair trial. The right to a fair trial is an autonomous concept in the European Convention on Human Rights, as is deprivation of liberty. It is subject to continued interpretation by the courts, and the concept goes far wider than simply control orders. Following the House of Lords judgment in MB, there has been ongoing litigation in the High Court and the Court of Appeal about how the court should assess compliance with the right to a fair trial in a number of different cases. The majority view in the Court of Appeal essentially supported the Government’s position. As noble Lords will know, that judgment will be considered by the Law Lords, and the House of Lords has agreed to expedite those cases. I suggest that in these circumstances, it would be presumptuous and an unwarranted interference with the judicial process for Parliament to legislate further on the point at this time. Nor will domestic litigation be the end of the matter. One of the controlled persons involved in the control order cases covered by the House of Lords judgments of October 2007 has lodged proceedings in the European Court of Human Rights on both the Article 5 and Article 6 issues raised by him before the Lords last year. In conclusion, the Government do not agree that this amendment is necessary. It does not provide any greater legal certainty than is already provided by the 2005 Act and case law. It will not provide any practical benefit to controlees and has the potential to be damaging to the public interest. It is also badly timed, given the ongoing litigation on what constitutes a fair trial. I ask the noble Lord opposite to withdraw the amendment, and if he will not, I urge all noble Lords to reject it.
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    Baroness Neville-JonesBaroness Neville-JonesConservative
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    moved Amendment No. 48E:
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  • Speaker
    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    My Lords, we on these Benches support this moderate amendment. In view of how little time we had to peruse the document that the Minister’s department sent through this morning, it would be helpful if the Minister could assure us that he will take the amendment away and consider returning to it at Third Reading if he is not able to agree to it today. In the document, there was not so much a list of tasks as a list of possible tasks. It was one of the vaguer documents that I have read. I would not have called it, even on an initial reading, an implementation document; it was more an aspirational document of where this might go. Given the importance that everybody around the House has attached to the use of intercept evidence, it is important that we get this right.
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    Lord West of SpitheadLord West of SpitheadLabour
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    My Lords, it is clear from what the noble Baroness, Lady Neville-Jones, said that she feels that the Government are not intent on meeting our commitment to push ahead with the Chilcot process. However, that is just not so. We are absolutely doing that. I am sure that if the noble Baroness talks to members of the Advisory Group of Privy Councillors—for example, the right honourable Michael Howard—she will find that that is the case and that we are pulling ahead and moving forward with this. I reiterate my comment of 21 October that it remains very much our intention to update both Houses on progress against the first, design phase of the implementation work programme agreed by the AGPC, well within three months of Royal Assent. Indeed, we would hope to do so before the Christmas Recess because that would fit in with the programme agreed by the AGPC. Equally, as I also made clear, the update report cannot form the basis of a final decision to proceed because of the further phases of work, as agreed by the Advisory Group of Privy Councillors, required to build and test the model prior to any implementation. However, the noble Baroness seems to be saying that, even if the Chilcot tests are not met, we should proceed with this. I absolutely disagree. I hope that she is not saying that, because we would be taking some very real risks. Clearly, we have to build and test, and that comes after the first phase. The noble Baroness mentioned the intercept as evidence work programme, a copy of which I have put in the House Library. I apologise for its not having been there earlier but, as I am sure the House is aware, these things are highly complex; we had to be careful that we did not include anything in it which should not be seen but which would have been available for public view. Turning to the second part of the proposed new clause, I strongly reiterate my previous comments. Most important, as was made clear in the cross-party Chilcot report, hasty or ill considered legislation could do real damage to our national security. There have been seven attempts to introduce this over the past few years and it is interesting to note that, whichever party has been in power, it has found it extremely difficult to do so. It is not easy or straightforward. We have to ensure that the tests are met. However, it is fair to say that my right honourable friend, the then Minister with responsibility for counterterrorism, Tony McNulty, said before the Counter-Terrorism Bill Committee on 15 May that we would hope, subject to the necessary issues having been resolved—that is, the tests having been done—to legislate for this in 2009-10. That is still our intention if we can meet those tests. If we do not meet the tests, it will be a different matter, but we have to go through the necessary steps. We believe that the amendment represents pre-emptive legislation that risks doing real damage to the confidence of the communication service providers—the CSPs—and of our international partners. The Chilcot report underlines the importance of CSPs to our strategic intelligence capability and ability to combat serious crime and terrorism. It also points out how any increased risk of disclosure could harm our international relationships. These issues are highly complex. That is why the matter has been looked at so many times and is so difficult. It is what lies behind the strong emphasis in the Chilcot report of the need to create, and not undermine, that confidence. Therefore, the Government remain unable to accept the amendment. I hope that the House will continue to back the implementation process recommended by the Chilcot report, which is working forward steadily. We are committed to fulfilling it so that our intelligence capability and public protection are safeguarded and so that, if we are able to do so, we can use intercept as evidence, but we have to have those safeguards in place. This process is underpinned by the cross-party Advisory Group of Privy Councillors, which is ensuring that it is moving forward correctly. On that basis, I ask the noble Baroness to withdraw her amendment.
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    Baroness Neville-JonesBaroness Neville-JonesConservative
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    My Lords, I wish that I felt happier with the answer that the House has had from the Minister. Once again, he has emphasised the difficulties rather than the will of the Government to find a way to implement the report’s recommendation, which is that a way should be found to move forward with this on the basis of PII Plus. It is already between nine and 10 months since the committee reported and I confess that it would have been reassuring if, in the report that the Minister put before the House, he had given an assessment of where the committee had got to. That would have been a fair interpretation of what these Benches have been asking for. I consider our amendment to be extremely reasonable. It is not constraining and is in the spirit of the Government’s undertaking to find a way through with this legislation. Had there been time, I might have strengthened the amendment; as it is, I am minded to test the opinion of the House.
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendment No. 49A:
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendment No. 50:
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    My Lords, I am extremely grateful to the Minister for tabling the amendments, which so much meet the concerns that we expressed in Committee, and for fashioning them so that they are based around case law, which will be very helpful. I am further grateful to him for giving such a full explanation, which will be very helpful to everyone interested in this extremely important issue. On Question, amendment agreed to.
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendments Nos. 51 to 54:
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendments Nos. 55 to 61:
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendment No. 61A:
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendment No. 61C:
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    Lord TeversonLord TeversonLiberal Democrat
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    moved Amendment No. 62:
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