Terrorism Bill

HL Deb 23 May 2000 vol 613 cc674-710

5.27 p.m.

House again in Committee.

Schedule 5 [Terrorist Investigations]:

Lord Bach

moved Amendment No. 59: Page 98, line 34, leave out ("procurator fiscal") and insert ("sheriff). The noble Lord said: The Committee turns now to eight government amendments which relate to Schedule 5. All of the amendments are minor drafting amendments to Part II of the schedule and apply only to Scotland. Amendment No. 59 corrects an unintended reference to the procurator fiscal in paragraph 22(5). The reference should be to the sheriff. The other amendments ensure consistency in drafting between Part I relating to England, Wales and Northern Ireland and Part II relating to Scotland. I beg to move.

On Question, amendment agreed to.

Lord Bach

moved Amendments Nos. 60 to 66: Page 99, line 47, leave out ("discharge") and insert ("recall"). Page 101, line 19, leave out from ("that") to ("immediate"). Page 101, line 21, leave out ("possible") and insert ("is reasonably practicable"). Page 101, line 28, leave out ("without reasonable excuse"). Page 101, line 29, at end insert— ("( ) It is a defence for a person charged with an offence under sub-paragraph (3) to show that he had a reasonable excuse for his failure."). Page 101, line 42, leave out ("or 32 or"). Page 101, line 42, at end insert ("or a notice under paragraph 32"). The noble Lord said: I beg to move Amendments Nos. 60 to 66 en bloc.

On Question, amendments agreed to.

Schedule 5, as amended, agreed to.

Clause 38 agreed to.

Schedule 6 [Further appeal]:

Lord Bach

moved Amendment No. 67: Page 102, line 19, after ("liable") insert ("on summary conviction"). The noble Lord said: In moving the amendment, I speak also to Amendment No. 68. They are minor and technical drafting corrections suggested by parliamentary counsel. Amendment No. 67 uses the standard language where the offence is a summary one. The second amendment removes a word which has somehow slipped into the text. They do not change the effect of provisions in any way. I beg to move.

On Question, amendment agreed to.

Lord Bach

moved Amendment No. 68: Page 103, line 7, leave out ("person"). On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Clause 39 agreed to.

Clause 40 [Terrorist: interpretation]:

Lord Lloyd of Berwick

moved Amendment No. 68A: Page 18, line 41, leave out paragraph (b). The noble and learned Lord said: The amendment makes sense only if it is taken with Amendment No. 142A. The later amendment solves the difficulty which I have with Clause 40 as drafted.

Clause 41(1) creates a new statutory power of arrest without warrant. There would be nothing wrong with that if, under Clause 41(1), being a terrorist were itself an offence. It would then follow the ordinary law under Section 24 of the Police and Criminal Evidence Act under which the police can always arrest without warrant when they have reasonable suspicion that an arrestable offence has been committed. The trouble is that being a terrorist is not an offence. It is an offence so far as it is covered by Clause 40(1)(a), and if the definition of "terrorist" had stopped there there would have been no problem. But the definition does not stop there. It continues in Clause 40(1)(b), and it is the combination of the power of arrest in Clause 40(1) with the wide words of Clause 40(1)(b) that I have great difficulty in accepting. Being concerned, in the commission, preparation or instigation of acts of terrorism", is not itself an offence.

The wide power of arrest to which I have referred is far wider than anything that would be permissible under the Police and Criminal Evidence Act, but that is only the start of the problem. The much greater problem is that it is also inconsistent with what is permissible under the Human Rights Act.

Article 5(1)(c) of the human rights convention allows a person to be arrested for the purpose of being brought before a court on reasonable suspicion of having committed an offence. It is thus very similar to the ordinary English law, and that is perhaps not surprising because the convention itself is, as I suspect we all know, based on English common law. However, the convention is clear. It allows an arrest where a person has committed an offence. It does not permit the power of arrest on reasonable suspicion that a person is concerned in acts of terrorism in general. You must be able to point to a specific offence which he has committed.

The position will become even clearer, and the problem even more difficult, when the Human Rights Act becomes part of English domestic law. In English law, when you arrest a person you must inform him of the offence of which you suspect him. How could that happen in the case of a person arrested under Clause 40(1)(b) when it does not itself create an offence? The answer is that the police officer in those circumstances could not inform the person arrested of what offence he was suspected.

So what will happen when the Human Rights Act becomes part of English domestic law? Let us suppose that one has a person who is arrested. He has committed no offence under Clause 40(1)(a) but is suspected of being a terrorist in general under Clause 40(1)(b). Let us suppose that he challenges the validity of his arrest, as he almost certainly would. The case will then come before the courts, and very probably end up before this House in its judicial capacity. Putting it at its very lowest, there must be a grave doubt whether the validity of his arrest would be upheld. There would then be a declaration of incompatibility under the Human Rights Act and Clause 40 would come back again before this House in its legislative capacity in order to make it compatible with the Human Rights Act by amendment—perhaps the omission of Clause 40(1)(b) as it stands. Surely it makes sense to get it right now rather than to leave it until that point has been decided by the courts.

When I mentioned this difficulty at Second Reading, the Minister referred in his reply to a case called United Kingdom v. Brogan which came before the Court of Human Rights. However, the case did not decide what I think the Minister believes that it decides. The whole point of that case was that the applicants there were suspected of being members of a proscribed organisation, which is a specific offence, and suspected of various other specific offences. They were not suspected of being involved generally in acts of terrorism, as the Government were at great pains to point out. It was not on that ground that the European court decided at that point in favour of the United Kingdom. Perhaps I may read briefly from the judgment since the case was referred to by the Minister at Second Reading. At page 130 it states: In this connection, the government pointed out that the applicants were not in fact suspected of involvement in terrorism in general, but of membership of a proscribed organisation and involvement in specific acts of terrorism, each of which constituted an offence under the law of Northern Ireland and each of which was expressly put to the applicants during the course of their interviews following their arrests". Therefore, if the Government still rely on United Kingdom v. Brogan in support of that defence of Clause 40 as it currently stands, I suggest that they are on very weak ground.

What is to be done? I suggest that things cannot stay as they are; at the very least, it would not be wise to leave them as they are. There is an obvious solution at hand. It is to make Clause 40(1)(b) into a specific offence under the Bill. If that were done, all the difficulties would disappear and the power of arrest under Clause 41 could no longer be challenged.

That is the purpose of my second amendment, Amendment No. 142A. It might seem far reaching but it is not. It was first proposed as an offence long ago by a committee under Lord Gardiner. I adopted the proposal in my report and repeated my views in commenting on the Government's consultation paper on the Bill. However, they simply answered that in their view the creation of the new offence was not the way ahead. I ask why not. What is wrong with the proposed new offence? It follows conveniently after Clause 56, which makes it an offence for a person to direct the activities of an organisation which is concerned in the commission of acts of terrorism. If the director can be liable, why should the member of the organisation not be liable? Why should the individual not be liable even if he is not a member of an organisation?

Clause 57 provides the offence of possession for terrorist purposes. It makes it an offence if a person, possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of acts of terrorism". Why should the possession of an article make all the difference? Let us suppose that there was convincing evidence from, say, an informer that a person was instigating or preparing to commit an act of terrorism at a certain place and on a certain date. Surely it would make sense that that person should be arrested before rather than after the bomb goes off. Why should the instigation and preparation not itself be an offence? Why should it be an offence only if the instigator is himself in possession of the bomb, which he almost certainly would not be? It does not make sense. If a new offence were inserted between Clauses 56 and 57, it would be added to the list of offences in Clause 40(1)(a) and Clause 40(1)(b) could be omitted without loss.

In summary, I suggest that the new offence is highly desirable in itself and at one stroke it would solve the difficulty under Clauses 40 and 41. Apart from the definition of terrorism in Clause 1, to which I hope we shall be able to return on Report and reach an agreed solution, I am more concerned about Clauses 40 and 41 than any other provisions in the Bill. I beg to move.

Lord Hylton

I hope that I have followed the logic of my noble and learned friend in his three amendments. However, I notice that he has not tabled an amendment to delete Clause 41(1). Is he therefore happy that it should remain in the Bill?

Lord Lloyd of Berwick

No, I certainly do not wish Clause 41(1) to be deleted. It creates the power of arrest, which is essential. The problem is that that is fine so far as it relates to Clause 40(1)(a) but it is very far from fine so far as it relates to Clause 40(1)(b).

5.45 p.m.

Lord Avebury

I rise to speak to my Amendment No. 68BA. Having listened carefully to the noble and learned Lord, I am no wiser than he is about why the Government did not accept the recommendation in his report to create a specific offence of being concerned in the commission, preparation or instigation of acts of terrorism.

If I may venture to speculate, the ambiguity lies in the phrase "being concerned in". If one created an offence of committing, preparing or instigating acts of terrorism, those would be substantive acts. However, I am not sure that the courts would find it easy to interpret "to be concerned in" an act. Perhaps the phrase "being concerned in" occurs in the PTA and elsewhere and does not cause that difficulty. As the noble and learned Lord was speaking, I was struck by the thought that that may have been the reason why the Government were hesitant in accepting the recommendation in his report.

However, he has put his finger on the mischief that is caught by the combined offence under Clauses 40(1)(b) and 41(1). I have approached that from a different angle; that of amending Clause 41(1). I have removed the words "be a terrorist" and inserted: have committed or to be about to commit an act of terrorism within the meaning of section 1". That would still mean that a person who is concerned in the commission, preparation and instigation of acts of terrorism would not be liable to arrest without a warrant, but the noble and learned Lord believes that he should be. However, if the two provisions remain as they stand, it would be a contravention of Article 5.1(c) of the ECHR.

Again, I ask the Minister to explain to the Committee how he can possibly have concluded that the provision is compatible with the Human Rights Act. It passes my comprehension. The particular article in the convention permits arrest to bring a person before a competent legal authority, first, on the grounds of reasonable suspicion of having committed an offence; secondly, as a necessary measure to prevent the person from committing an offence; and, thirdly, in order to prevent a person from fleeing, having already committed an offence. The second ground—that is, to prevent a person from committing an offence—has been interpreted by the European Court as meaning that the anticipated offence must be a concrete and specific act. That was in the case of Guzzardi v.Italy. Therefore, I agree with the noble and learned Lord that together the clauses as they now stand contravene Article 5.1(c) and also possibly Article 5.2, which requires anyone who is arrested to be informed of the reasons for his arrest. I hope that the noble Lord will listen to the advice that he has been offered by the noble and learned Lord, Lord Lloyd, with the wide experience and background that he has in these matters. We cannot allow the wording of these two clauses to remain unaltered. I hope that when the Minister comes to reply he will assure the Committee that something will be done by the Government before we reach Report stage so that we do not have to return to the matter again.

Lord Cope of Berkeley

First, for the record I make an extremely small point. I believe that there is a misprint on the Marshalled List, which states "leave out paragraph (6)". It should, of course, read "leave out paragraph (b)".

I find the noble and learned Lord's formulation of what we are trying to achieve much more satisfactory than the terms of the Bill. I do not believe that there is a great deal of difference in what the Government and the noble and learned Lord and others are trying to achieve. The question is how to achieve it through the most satisfactory wording.

However, this matter concerns more than simply a drafting point. If the noble and learned Lord is correct, as I believe he is from my knowledge, which is so much less than his, that the European Convention on Human Rights, and particularly the writing of it into our own domestic law, will upset this provision and make it inoperable, that, of course, is a serious matter. We all want it to be possible to arrest terrorists and for powers to be used in a preventive capacity in order to avoid the bomb going off, and so on. We all want that. The question is how to achieve it and make it stick if it comes to a court case.

One of the features of virtually all terrorist offences is that they require a great deal of elaborate preparation. They involve many people. They often involve passing a gun, both before and after its use, between various carriers so as to avoid detection and to avoid the person who does the shooting being caught with the weapon. The events which surround the commission of a murder or the letting off of a bomb are as much terrorist offences and as essential to the satisfactory execution of the offence as the actual firing of the gun. That is why it is important to catch and to be able to convict the other people who are involved.

It is said that this produces an extension of the offences under the Act. It does, but it is a very small extension given, as the noble and learned Lord pointed out, that membership of a proscribed organisation, direction and other things akin to it are already offences. The extension proposed in Amendment No. 142A is very small but I believe valuable.

I wish to make one or two small points. Clause 42(1), which deals with the search of premises, depends on Clause 40(1)(b)—the paragraph that the amendment seeks to delete—and clearly would need to be modified. I do not believe that, a person falling within section 40(1)(b)", is very happy wording. However, we are not concerned with its happiness or otherwise; we are concerned with the fact that that wording needs to be modified as well.

Another point that I wish to make is that, rather curiously, none of this applies to the offences set out in Clause 13. All the other relevant clauses seem to be listed, but Clause 13, which concerns the wearing of a terrorist uniform, is omitted. However, there is a specific provision in Clause 13 for arrest in Scotland n that connection. But that seemed to me to be odd.

So far as concerns the point made by the noble Lord, Lord Avebury, about the words "concerned in", as those words occur in both the Government's draft in the Bill and in the noble and learned Lord's amendment, I am prepared to accept them as being necessary in order to catch the people who are peripheral to the key offence, be it murder or whatever. Therefore, I support the amendments.

Lord Goodhart

The noble and learned Lord, Lord Lloyd, has put his finger on what he has shown beyond doubt to be a serious defect in the drafting of Clauses 40 and 41. It is more than a pure technical defect and will require a rethinking of the operation of those clauses. I believe that the solution that he has found certainly goes a long way to dealing with the problem. Unlike the noble Lord, Lord Cope, I have a certain concern about the use of the word "concerned". I believe it is arguable that that is rather too broad and general a word, and I should be interested to hear what the noble and learned Lord has to say when he winds up this debate.

Therefore, I am inclined to prefer a solution more on the lines, if perhaps not in the identical words, of that put forward by my noble friend Lord Avebury to make it clear that a specific offence must have been committed or is about to be committed by the person who is arrested.

So far as concerns the word "concerned", I believe that my worry has been increased by looking at Clause 3, which refers to the question as to when an organisation is concerned in terrorism. Under Clause 3(5),

an organisation is concerned in terrorism if it—

1. (a) commits or participates in acts of terrorism,
2. (b) prepares for terrorism,
3. (c) promotes or encourages terrorism, or
4. (d) is otherwise concerned in terrorism".

While paragraph (d) is extremely general, paragraphs (a), (b) and (c) are fairly specific. When creating a new offence, I wonder whether it would not be desirable to be as specific as are paragraphs (a), (b) and (c) of Clause 3(5). Again, that is a point on which I should be interested to hear what the noble and learned Lord has to say. However, I believe that his own amendment, Amendment No. 142A, is perhaps not yet quite tight enough with regard to his definition of what is the requisite degree of involvement in an act of terrorism.

Lord Bassam of Brighton

I am extraordinarily grateful to the noble and learned Lord, Lord Lloyd, for the way in which he has advanced his arguments this evening. I rather felt that we were at a learned disputation on the subject, and I found it very helpful.

The arguments that the noble and learned Lord set out are not entirely new to us. He set them out before in his report on the legislation against terrorism, and he made them very fully in his response to the Government's consultation paper and again with great courtesy at Second Reading of the Bill. I am drawn to conclude that it is rather strange to hear in the year 2000 that a power that has been on the statute book for some 25 years, unchallenged, as it has been, since the Brogan case, suddenly is fatally flawed. However, the noble and learned Lord has advanced a good argument.

The Government have not reached lightly the conclusion that the power is compatible with the convention. We can see serious drawbacks to the amendment of the noble and learned Lord, Lord Lloyd. For that reason, we shall not yield on this issue. One or two noble Lords have drawn attention to some drafting flaws, if nothing more. However, we wish to take up some fundamental issues against this amendment. We have looked very carefully at the points made by the noble and learned Lord, but, as I said on Second Reading, this is an issue on which, with the greatest respect, we have formed a very different view, and I shall set out why.

The Government are not persuaded that it is necessary to create a separate and new offence of terrorism; nor do they believe that that would be entirely desirable.

I deal first with the necessity for the offence. The noble and learned Lord, Lord Lloyd of Berwick, proposes an offence of terrorism primarily, it seems, because of his quite understandable concern that the arrest power under the Bill would not otherwise comply with Article 5(1)(c) of the ECHR, which provides that a person's arrest must be effected for the purpose of bringing the person before a competent legal authority on reasonable suspicion of having committed an offence. With the greatest respect, the Government take a different view.

In Brogan v. the United Kingdom in 1988 the Government argued successfully that it was not necessary to have arrested someone under the Prevention of Terrorism Act arrest power in connection with a specific offence in order to be compliant with Article 5(1)(c) of the convention. They argued that the way the arrest power was formulated in terms of being concerned in the commission, preparation or instigation of acts of terrorism should be regarded for convention purposes as a power of arrest for an offence.

The Court accepted that submission, saying that the arrest and subsequent detention of the applicants were based on a reasonable suspicion of an offence within the meaning of Article 5(1)(c).

While the Government recognise that no particular case can settle an ECHR point for all time—that has to be the case—and that the Court underlined that the particular circumstances of the Brogan case influenced the decision it took, the Government continue to be of the view that a terrorist arrest power, without an explicit link to a specific offence, is compatible with the ECHR and Article 5(1)(c) in particular. It was on that basis that the Section 19(1)(a) Human Rights Act certificate was signed.

6 p.m.

Lord Avebury

Would the noble Lord remind the Committee whether the case of Brogan came before or after the case of Guzzardi v. Italy in the European Court and whether or not in the case of Guzzardi, it was ruled that the anticipated offence must be a concrete and specific act?

Lord Bassam of Brighton

I thank the noble Lord for his question. I shall undertake inquiries and respond to him in due course.

I am aware that parties other than the noble and learned Lord have expressed concern about the vulnerability of the terrorist arrest power in the Bill to a successful challenge by the ECHR. The concern appears to focus on the fact that it was the particular circumstances of the Brogan case that resulted in the Government's case being upheld and that such a result could not be relied upon in future cases.

That gives me the opportunity to reiterate the Government's position on the way in which the specific Section 14(1)(b) terrorist power of arrest under the PTA works and how it is envisaged that the terrorist arrest power will operate under the Bill. The arrest power will be available for use where, and only where, a constable has reasonable suspicion that a person is or has been concerned in the commission, preparation or instigation of acts of terrorism; and the purpose will be with a view to securing sufficient usable and admissible evidence in criminal proceedings against the person concerned.

The Court in Brogan ruled that the reference in Article 5 to an "arrest for an offence" included arrest for this purpose, and we rely on that position. It follows from what I have said that we do not agree that it was necessary to create an individual offence of being involved in terrorism. The question therefore is whether it might be desirable for any other reason to create such an offence, and on balance the Government think not.

The activities in which terrorists engage are, we believe, already caught by specific criminal offences. The situation has moved on significantly since the Gardiner report in 1975, to which the noble and learned Lord referred earlier. That recommended the individual offence of terrorism. We now have offences of, for example, directing a terrorist organisation, recruiting and training. Indeed, we believe that the Bill plugs a few gaps in that respect in that certain of these offences have up to now been available only in Northern Ireland and their extent is now broadened to be UK-wide.

On balance the Government prefer to rely on the existing offences under the criminal law, which they believe adequately cover the ground, rather than to create an additional individual offence of terrorism, which the noble and learned Lord's approach would deliver. That approach is also consistent with our view that the occasions on which terrorists are treated differently from "ordinary" criminals should be kept to an absolute minimum. I know and understand that the noble and learned Lord, Lord Lloyd, supports that. Because of the way terrorists are organised, financed and operate, dealing with such persons requires special measures, but their acts remain the ordinary callous acts of murder, bombings, arson and so forth, and we believe that they should be recognised as such.

It is with regret that the Government have taken the view that they cannot agree with the proposals of the noble and learned Lord, Lord Lloyd, for the creation of an act of terrorism. I hope that the Committee has found my explanation of our position helpful.

The police have found the current arrest power, with its link into a separate offence, operationally invaluable, and they certainly support our proposal to retain this approach in the new Bill.

I hope that the noble and learned Lord will reflect on the points that have been made and perhaps not press his amendments this evening.

I turn now to the amendment in the name of the noble Lord, Lord Avebury. This provides that the terrorist arrest power may be used only in connection with a person a constable reasonably suspects to have committed or to be about to commit an act of terrorism within the meaning of Clause 1. We believe that this amendment unduly narrows the availability for the arrest power in a very unhelpful way. First, it is not clear that all the terrorist offences listed in the Bill will be caught by the formula "have committed or to be about to commit an act of terrorism" For example, it is by no means certain that the terrorist fund-raising clauses would be caught; nor, indeed, the offence of directing a terrorist organisation, which is to be found in Clause 54. Yet we believe it is essential that the terrorist arrest power should be just as much available in connection with those who support terrorism in less direct ways, such as these, as for those who actually undertake the terrorist acts themselves. I think there has been common agreement to that approach.

Also, the Government think that a move to the formula of a person who a constable reasonably suspects to have committed or to be about to commit an act of terrorism from the current formula concerning the commission, preparation or instigation of acts of terrorism again narrows unacceptably the arrest power. It does not explicitly include acts which, behind the scenes, support the commission, preparation or instigation of acts of terrorism.

The Government do not want the police to be in a position where they may only be able to arrest the man actually with the bomb. That would be ridiculous.

The Government are not persuaded that, having accepted that there should be a special terrorist arrest power, it should be available only to respond to some of the more front-line actions in which terrorists engage. Moreover, the arrest power and the linked detention regime is of particular use when there is a reasonable suspicion of involvement in terrorism but it is not yet clear what that involvement actually amounts to. That is where the additional time to check statements, run forensic tests and carry out other operational matters is most valuable, and yet the amendment would mean that the terrorist power of arrest would not be available in those very important circumstances.

The police are firm in the view that the special arrest power has been the key to their ability to prevent, disrupt and investigate terrorism. I believe that to modify the power as the noble and learned Lord suggests would seriously hinder their effectiveness and I would hope that, on reflection, he would not wish to press his amendment.

The noble Lord, Lord Avebury, asked me a specific question. I do not have the answer to that question this afternoon, and nor do my officials. I am more than happy to carry out some research so as to provide an answer to that point. If the noble Lord is satisfied on that point, I shall write to him and provide those details to other Members of your Lordships' House.

Lord Lloyd of Berwick

I am grateful for what the Minister said, although I am not sure that he has carried the matter much further than he did on Second Reading. I shall certainly study what he said with great care. I am grateful also for what other Members of the Committee have said.

It may be that the proposed new offence is drafted somewhat too widely. The reason that the words, concerned in the commission, preparation or instigation of offences are included in the proposed new offence is that that was the wording I found in the existing legislation. But I notice that the words "concerned in" are not to be found in the offence originally proposed by Lord Gardiner. There is possibly scope for redrafting to make it tighter.

As I say, I shall study what the Minister said. This is an important point. I hope that the Government will have second thoughts on the matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 68B not moved.]

Clause 40 agreed to.

Clause 41 [Arrest without warrant]

[Amendment No. 68BA not moved.]

6.15 p.m.

Lord Goodhart

moved Amendment No. 68C: Page 19, line 10, leave out ("48") and insert ("36"). The noble Lord said: Four amendments in this group, standing in the names of my noble friends and myself—Amendments Nos. 68C, 95A, 103A and 103B—have been instigated by the Law Society and we have agreed and are pleased to put them forward.

Amendments Nos. 68C and 95A require certain rules as to the time a person can be held on the authority of the police to be brought into line with the times provided in the Police and Criminal Evidence Act, generally known as PACE. Under Clause 41, the time during which someone who has been arrested can be held without charge on the authority of the police without the need for any judicial intervention is 48 hours. Under PACE, the equivalent period is 36 hours.

There is no justification or need for different time limits under this Bill and under PACE, most obviously because most of the offences which are likely to lead to arrest under Clause 41 will themselves be offences to which PACE applies. Therefore, since PACE requires the period to be limited to 36 hours, it means that the period will, in effect, be 36 hours in any event.

Thirty-six hours should be quite sufficient to enable a competent police officer to investigate an offence and decide whether or not to charge or request a further period of detention. Obviously, a suspect can be detained longer but not simply on the say-so of the police and 36 hours seems an appropriate period for this Bill as well as for PACE within which the police should be required to obtain judicial authority for the continued detention of the suspect.

The effect of Amendment No. 95A is again to ensure that a judicial review takes place not only at the end of the first 36 hours but at successive intervals of no more than 36 hours thereafter. As matters stand, an accused person may be detained for up to seven days from the time of his arrest subject to only one review by a court after 48 hours. That is under Schedule 8. This amendment would ensure that a judicial review takes place every 36 hours.

Under PACE, if a court decides to allow a period of further detention, it is only for 36 hours at a time, unlike in this Bill where the police could detain a suspect for a further period of five days without having to satisfy a court at any time during that period that the continued detention was necessary and justified.

It is crucial that continued detention is regularly and independently justified and that the judicial authority is satisfied that the police conduct their inquiries expeditiously.

The second two amendments in the group concern a different aspect of detention; namely, the right of representation of the suspect when the question of the suspect's continued detention is being considered by the court.

The problem arises because under paragraph 35(3) of Schedule 8, on the hearing of an application for extension of detention under Clause 41, it is provided that, A judicial authority may exclude from any part of the hearing … both the person to whom the application relates", that is, the suspect, and, anyone who is representing him". Potentially, that means that the suspect might have nobody in a position to defend him and may be faced with the position where the case for continued detention is being put by the police alone.

Amendments Nos. 103A and 103B are alternative amendments. Perhaps I may first take Amendment No. 103B because it is more far-reaching. The effect of the amendment is to ensure that a decision on further detention is not made by a judicial authority without the authority taking into account the suspect's responses to the reasons asserted for the need for continued detention. It does so by making subparagraph (3) ineffective if that would prevent the suspect from responding fully to the reasons given for the request for continued detention.

The alternative is Amendment No. 103A which makes sub-paragraph (3) apply only on the application of the Crown prosecutor or authorised advocate or litigant. The purpose is to ensure that if an application is made for continued detention at a time when the suspect and his representative have been excluded, there is at least an independent and objective legal element present in the court to ensure that the matter is not dealt with solely by the police, the Crown prosecutor or the authorised advocate being the person in question.

If one or other of the amendments is not accepted, there is a serious risk of miscarriage of justice. What is required is that there should be either a representative of the suspect present or, at least, somebody who is independent of the police, legally qualified and subject to a professional duty to be fair and who has considered the public interest need for such an application. I beg to move.

Lord Cope of Berkeley

The noble Lord, Lord Goodhart, said that he thought that there was no justification for a time-limit of 48 hours instead of 36 hours for detention in line with PACE. I believe that there is justification and that justification is clearly set out in the report of the noble and learned Lord, Lord Lloyd, at paragraph 9.10 and in following paragraphs. I shall not refer to that in detail as it is set out in those paragraphs, but he draws attention to the additional problems faced by the police in Great Britain and in Northern Ireland in dealing with terrorist suspects.

Such problems arise from a number of matters. Often cases involve great complexity; sometimes it is necessary to refer to inquiries overseas, and so on; and these days terrorists in Northern Ireland and those from other terrorist organizations—many of them consult and learn from one another—are highly trained to resist interrogation and to resist co-operating with the police in any way. I am quite prepared to go along with the recommendation of the noble and learned Lord, Lord Lloyd, and with the Bill and to stick with the 48 hours.

There are a number of other amendments in this group in my name and those of my noble friends that concern the related matter of who should decide about the extension of detention. The proposal in the Bill is that in future in all cases, including in Northern Ireland, detention should be extended only through judicial authority. "Judicial authority" is defined in the Bill, but basically it is shorthand for judges.

I believe that, particularly in Northern Ireland, it should still be the Secretary of State who is able to decide on the extension of detention beyond the 48 hours. As is mentioned in the report of the noble and learned Lord, Lord Lloyd, the judiciary in Northern Ireland have been, and remain, against having such a responsibility. I can well understand why. I do not want to make the job of the Northern Ireland judiciary more difficult than it is already. I have the highest respect for all that the Northern Ireland judiciary has had to put up with—I hope that is not too weak a term—over many years. After all, some of them have given their lives in the process. I believe that in a matter of this kind we should take the view of the judiciary in Northern Ireland extremely seriously.

However, there is a wider point of principle. In this context I refer particularly to Northern Ireland. If the judiciary become involved in the decision as to whether to extend the period of detention in order to allow an investigation to proceed, they will become drawn into the whole matter of the investigation and its supervision. Necessarily, they will have to consider intelligence evidence that could not be presented in open court but which it would be essential to consider when deciding whether to detain suspects for longer. Quite rightly, in Northern Ireland the separation of the process comes between, on the one hand, the judges, who are responsible for conducting the courts, and, on the other hand, the Secretary of State and the police, who are responsible for investigation, intelligence and weighing up all that. That is extremely important.

We all hope that in future the situation in Northern Ireland will not be as it has been in the past and as it was when I was a Minister in the Northern Ireland Office. We hope that in future peace will reign and that everything will be much easier, as it is, to a large extent in Great Britain. However, this Bill is not planned in its entirety on that supposition. The report of the noble and learned Lord, Lord Lloyd, was written on the basis of what to do after peace has been arrived at in Northern Ireland. Quite rightly, part of the Bill takes account of the fact that even if in the next few days a settlement is reached with the main parties in Northern Ireland—as we all dearly hope—there are likely to be terrorists—maybe maverick groups of terrorists that are not under the control of the main terrorist organisations about which we hear so much—still operating and those powers will still be required. I believe that they will be required and I do not believe that we should plan on the assumption that they will not be required. Among those powers are those to which I referred about who decides on the extension of detention.

I appreciate that I am talking entirely about the position in Northern Ireland, as opposed to that in Great Britain. The amendments that I have tabled refer to the whole of Great Britain. In general, the arguments, although not as strong as far as Great Britain is concerned, are similar and while I would be prepared to accept alterations to the amendments to confine this point to Northern Ireland, I believe that it is desirable that the same should happen in both jurisdictions. Although the arguments are not as strong, I believe that they apply on both sides of the water. For that reason I believe that Amendment No. 95, and the others that follow it, are desirable.

Of course, they also have the effect of continuing to ensure that the Secretary of State arrives at a decision in private, rather than the matter taking place in court with representations from the opposite side. I recognise that that is a departure from what one may want in this context, but I believe that it is a justified departure, and such a situation has been the practice up to now. I believe that Amendment No. 95 and the others grouped with it are justified.

Lord Mayhew of Twysden

I warmly agree with what has been said by my noble friend. It is of paramount importance that the reputation and perceived position of the judiciary in Northern Ireland as being wholly independent of the Executive should be preserved. They are jealous of that reputation, which is one that I have never heard seriously challenged even during my time in Northern Ireland from republican sources. They have achieved that tremendous prize themselves and they are rightly jealous to retain it.

I know that it was the view of at least one previous Lord Chief Justice that the jurisdiction that is now sought to be bestowed upon them by the Bill, in place of the jurisdiction of the Secretary of State, would be harmful to that reputation. I am pretty confident, although I cannot absolutely assure the Committee, that that was the view of two Lord Chief Justices. Whether it was the view of one or two Lord Chief Justices, that view is soundly based because, as my noble friend has said, a member of the judiciary would be drawn into deciding matters that would be perceived as pertaining to the Executive role. When one looks at the matters which he would have to take into account in Schedule 8, one sees how sensitive they are.

It may be said on behalf of the Government that there is a parallel jurisdiction held by magistrates to decide whether or not, after 24 hours—it may be 48—an extension should be permitted. I ask the Government to accept that the matters which magistrates have to take into account under PACE are a world away from the matters which the judiciary would have to take into account in Northern Ireland in terrorist cases.

I suggest also that, if this provision were implemented, we would find significantly less covert information coming forward to the police from informers. They would fear that, no matter what the reputation of the judge hearing the application, somehow or other their identity would get out. That is a fact of life and that would be the advice received by the Government if it has not already been received by the chief constable. I need scarcely mention how important it is, in the battle of terrorism under the rule of law, that there should be an uninhibited supply of information from people who do not wish their identity to be known, or even to risk it becoming known. That is a second important factor to add to that already alluded to by my noble friend.

The last point I should like to make on Amendment No. 95 is that one must always look to see whether a proposed change in the law will be an improvement on what exists at the moment. In that regard it may be helpful for me to mention how the system works at present. As has been made clear, it falls to the Secretary of State to hear an application by the police to extend a period of detention beyond 48 hours and up to a maximum of seven days, which is rarely asked for, before a judicial authority is involved. That procedure is extremely scrupulously operated. In the vast majority of cases the authority is given by the Secretary of State after careful consideration of the application put forward in paper form. Occasionally it may be taken by a junior Minister in the absence of the Secretary of State. On rare occasions it may be given by the Permanent Under-Secretary, but always subject, at the first opportunity, to ratification by the Secretary of State. It is a scrupulously operated procedure. And it is by no means unknown for the Secretary of State to refuse such an application.

Moreover, the operation of that procedure is subject to the surveillance and monitoring of an independent commissioner—it was the noble and learned Lord, Lord Nolan, a few years ago—who has the right to call for all papers in every case in which this jurisdiction has been exercised, and who has the duty to report each year to Parliament on his findings. It is unusual—I do not recall an occasion—for the Secretary of State to be critical of a genuine mistake. Indeed, when a genuine mistake is discovered by officials in the Northern Ireland Office, that is always voluntarily drawn to the attention of the commissioner for subsequent ratification or at least remedy.

The present situation provides a fair and practical safeguard against abuse, given the circumstances of Northern Ireland and the need to combat terrorism. I ask the Minister therefore to consider carefully whether it is wise to accede to what has been a nationalist request for a long time—I grant that—but against which powerful arguments can properly be ranged.

6.30 p.m.

Lord Dubs

I appreciate the great experience that the noble and learned Lord, Lord Mayhew, brings to bear on this subject, and that of the noble Lord, Lord Cope. I am sure that they both signed a number of extension orders during their time in Northern Ireland, as I did. But I am not totally persuaded by the arguments deployed in relation to Amendment No. 95.

I signed such orders. They were always meticulously presented. The arguments were clearly stated and on only two occasions did I go beyond the PACE maximum of 96 hours. There was never a request for more than an increment of 48 hours' detention and never for the full five days. But the arguments were clearly presented.

I do not understand why, given the expression "the rule of law" used by the noble and learned Lord, Lord Mayhew, that rule of law is not better fulfilled by a politician extending the period during which an accused person is kept in custody rather than it being done as a judicial process. I had to sign extension orders when I was on duty at the weekend in the absence of the Secretary of State for Northern Ireland, so he would have signed many more than any duty Minister. However, I can recall no occasion when, on the information presented to me about a specific individual or a number of individuals, there could have been any difficulty in a judge looking at the same information and deciding whether or not extension was appropriate.

I am not persuaded by the argument in relation to informers. I do not remember all the details of individual instances and it would not be appropriate, if I could remember them, to refer to them here. But I cannot think of any instance where the manner in which the information was presented to me would have in any way prejudiced the anonymity of an informer had that same information been presented to the judge.

A further point is that at the moment the United Kingdom has a derogation, under the European Convention on Human Rights, to enable this procedure to continue. That derogation may not be permitted in the future. I am not totally familiar with the procedures of derogation but that is my understanding. It seems to me that, as a country, we are sailing close to the wind in continuing a procedure which is not one that is fully in accordance with the European Convention on Human Rights. That will have more focus when the Human Rights Act comes into force in October this year.

Therefore, while bowing to experience, I prefer the system which reflects the rule of law as completely as possible; in a nutshell, that decisions in relation to detention should not be made by politicians; they should be made by judges. Judges can bring the full impartiality of their position to bear when making those decisions. It may be that the decisions will be no different and in practice it will make no difference. But the perception of the process will be different and the way in which this country does these things will be perceived to be better done by the judiciary rather than politicians.

The thought that the Northern Ireland system, as it is now, will be extended to other parts of the United Kingdom makes me even more concerned about Amendment No. 95 and the related amendments. I hope that the Government will not be swayed by the arguments we have just heard.

Lord Hylton

I wish to say a few words about the rather narrow point concerning a second review by an independent person after 48 hours following arrest and before the expiration of a period of seven days. I believe that this point is covered by one of the amendments in this group. I am aware that Schedule 8 already provides that there will be a review every 12 hours by a police officer of fairly senior rank.

However, let us imagine a case where the wrong persons have been arrested. They may be people of low intelligence, suffering from mental impairment or learning difficulties, who may, even if they do not suffer from those conditions, have weak characters and be very suggestible. These are the kind of circumstances in which miscarriages of justice have been known to occur in the past. I have in mind the case of the Guildford Four, of which I had some slight personal experience. It seems to me to be rather important that there should be provision for a second review by an independent person.

I should just like to add the suggestion—I do so rather diffidently, knowing that this Bill applies to the whole of the United Kingdom and not just to Northern Ireland—that such a review might be conducted by an ombudsman. After all, he is a person who is not attached to the judiciary or indeed to the executive.

Lord Bassam of Brighton

We have had a most interesting and useful debate, which has focused on the two different approaches from the Benches opposite. The Official Opposition seeks to retain the current position whereby the Secretary of State authorises detention after the 48-hour point has been reached, while the Liberal Democrats support judicial authority but seek to amend the Bill's regime.

I shall turn, first, to the Conservative amendments because these constitute a fairly radical departure from the Government's position. While looking at the amendments of the Official Opposition, perhaps I ought to say how much I welcome the support of the noble Lord, Lord Cope, for the 48-hour police detention. I should add that we are mindful of the position of the judiciary in Northern Ireland. Both the noble Lord and the noble and learned Lord, Lord Mayhew, spoke very wisely of the difficulties that it faces and there are concerns in that regard. However, on balance, we believe that our Strasbourg obligations lead us in a rather different direction from that suggested.

I do not accept that this is such a novel matter that it falls outside the natural remit of the judiciary. In fact, I believe that the judiciary is probably best placed to decide on the issue—an argument very ably advanced by the noble and learned Lord, Lord Lloyd, in his report at paragraph 9.19.

I should also like to comment a little on the points raised by the noble and learned Lord, Lord Mayhew. I take very careful account of what he said. Indeed, as my noble friend Lord Dubs said, he has, along with the noble Lord, Lord Cope, considerable experience in such matters, having had to study these cases most closely and make determinations. However, I cannot accept that this is a matter that is so inextricably linked to the executive that it cannot properly be transferred to the judiciary. Although I can sympathise with the arguments put forward by the noble and learned Lord, Lord Mayhew, that the present system works well—there is no question about that—in the light of the ECHR judgment in Brogan, I am afraid that it is not a system that can be maintained in the longer term.

Similarly, I do not entirely agree with the other point made so ably, as always, by the noble and learned Lord; namely, that terrorism cases are a world away from ordinary cases in every respect. The difference is not so stark at the top end. Let us take, for example, cases involving drugs, drug smuggling, gangster activities, and so on. These are similar, though not identical, to some of the sensitivities that apply in PACE cases. So it is not a matter of such cases being entirely different. Although the noble and learned Lord is right to suggest that PACE, with its invigilation conducted by magistrates, cannot be immediately transferred in exactly the same way to the Northern Ireland situation, we believe that the principle of having judicial involvement must be right.

The noble and learned Lord made a further important point about the need in instances of terrorism, especially in the context of Northern Ireland, to protect intelligence sources. We recognise that fact. However, it is best to stress that the role of the judicial authority is very forward looking in that respect. We shall continue fully to consult and ensure that we have the confidence of the police in this matter. Indeed, I am sure that we have that confidence.

As the noble and learned Lord, Lord Lloyd, pointed out on Second Reading, Strasbourg requires judicial authority. In order to maintain executive authorisation of detention, we take the view that the UK would also have to maintain the derogation from the convention, as pointed out by my noble friend Lord Dubs. We believe that it is right in principle that we should comply with Article 5 in this respect. We wish to withdraw the derogation as soon as practicable.

I ask the noble Lord, Lord Cope, to consider most carefully the point that a derogation may be maintained only when there is a public emergency threatening the life of the nation. In that respect, we firmly believe that the derogation is safe today. However, I am sure that Members of the Committee will no doubt hope that the situation in Northern Ireland will continue to improve, as it has been, and that we shall be able to reach a point where the derogation could no longer be sustained. I give way.

6.45 p.m.

Lord Mayhew of Twysden

I am most grateful to the Minster for giving way. However, on that very point, is it not the case that, by writing into the Bill and preserving in it the ability to extend for up to seven days the period before which someone has to be brought before a judicial authority, the Government are dwelling upon and perpetuating the present rule that necessitated the derogation from the convention? Further, is it not also the case that, if not in Brogan then in the predecessor case—the name of which eludes me for the moment—it was said in effect by the ECHR that up to four days is all right but seven is too much? That led to the derogation, the validity of which was upheld in the case of Brogan.

Therefore, the argument being made that we really must do our best to conform to the convention and that that justifies rejecting Amendment No. 95—a point also made by the noble Lord, Lord Dubs—does not deal with the point that by keeping the seven-day period we are retaining the fruit of that derogation. In other words, if it is right to retain seven, why is it not right to retain "Secretary of State" in this respect rather than having the judiciary?

Lord Bassam of Brighton

I suspect that that is a rather different point. I do not believe that we would accept that this is a breach of Brogan. If the noble and learned Lord recalls, the case of Brogan turned on a lack of judicial intervention. That is the point we are trying to establish in moving away from the current system. The case was not about the time spent in detention. I believe the noble and learned Lord to be half right, but we are trying to build and create a very different situation. We do not think that we can maintain derogation any longer on that basis.

We believe that we have constructed a system which both meets and goes beyond our convention requirements. It is important for us to do so in terms of pre-charge detention. The minimum requirements were set out in the Schiesser case. We have added to those requirements the right of representation in relation to the hearing. As I said at the outset of my remarks, there is a clear difference in our approach. Fundamentally, we believe that it is right in principle that matters relating to the liberty of the individual should be in the hands of the judiciary. Indeed, I should have thought that there would be general agreement on that point in this place.

However, I move from the fundamental principle at stake and suggest that the next issue for consideration is whether the system proposed in the Bill is workable; we think that it is.

Some have said that this is a difficult role for the judiciary but I stress that the role of the judicial authority here is to look forward at whether a case has been made for further detention. That is a role with which the judiciary are familiar, and best placed to judge. There are, of course, concerns about the need to look at sensitive information, as we have said before. This may indeed form part of the police case, but I stress again that the remit is forward looking.

Moving further into the detail of the amendments, the noble Lord seeks to replace the references to the judicial authority with references to the Secretary of State. As he has argued, this leaves the scheme largely intact but produces some interesting, if perhaps slightly odd, results. For example, Amendment No. 101 deletes entirely paragraph 35 of Schedule 8, while Amendments Nos. 102 and 103 seek to alter it. The second approach would give the detainee a right to make oral or written representations to the Secretary of State. Does the noble Lord intend—I cannot believe that this is his intention—that the detainee would appear before the Secretary of State? It is an important point of detail although I shall not dwell on it. We wish to concentrate here on the principle.

We continue firmly to believe that judicial authority—that is, after all, part of the separation of powers—is the right approach. The Opposition have in the past said that they would not be concerned about continuing to derogate from the convention. However, we are concerned about this.

I note what the noble Lord has said and I also note what the noble and learned Lord, Lord Mayhew, has said. I fully accept that there has to be room for more than one view on this matter in particular. However, I ask the Committee to think carefully about our international obligations. I trust that the noble Lord will not press the amendments.

I turn to the Liberal Democrat amendments. I again welcome the support we have received from them on achieving our important policy objectives. I should say at the outset that I appreciate that the amendments are tabled with a wish to improve the regime. That seems to me entirely laudable. While I acknowledge that aim, I am afraid that I cannot accept the amendments. I should like to explain why that is the case in some detail.

Amendment No. 68C would reduce the time the police may hold a detainee from 48 to 36 hours. This issue was carefully considered during the Committee stage in another place and, of course, prior to that by the noble and learned Lord, Lord Lloyd. The Government continue to agree with the noble and learned Lord, Lord Lloyd, that 36 hours is insufficient for the special circumstances of terrorist cases. The noble and learned Lord considered this point in great detail in his report and concluded that the first 24 hours can often be entirely taken up with preliminary processing matters, not least the proper taking into custody and the identification of the detainee. Anyone who has been involved in those matters will be aware of that. Therefore we continue to believe that 48 hours is the right balance. I trust that the amendment will not be pressed.

Amendment No. 95A would mean that the judicial authority could grant no more than 36 hours further detention per application, up to seven days in total. This may be seen as a compromise position, compared with the approach taken in another place, that the seven day total should be reduced to four. That position was based on a view that seven day detention would be in breach of Brogan, where the European Court found that detention of four days and six hours was a breach of the convention. But, as I explained earlier, in that judgment the case turned on the lack of judicial intervention and not on the time spent in detention itself.

We do not believe that there are convention requirements which would lead us to accept that the detention period should be capped. The next issue is whether, in the absence of a requirement, capping would be desirable. We do not believe that it would be. It is for the police to make out their case. It is difficult, if not impossible, to envisage a case where the police would be able to persuade the judicial authority that five clay detention is essential. However, I do not want to fetter the judicial authority's discretion here. It is, after all, for the judge to decide on the amount of time to be spent in detention.

I return here to the point made by the noble and learned Lord, Lord Lloyd—terrorist cases are not like ordinary crime. That is why we are debating this legislation today. Terrorist crime is inherently different and I am therefore opposed to capping as proposed by the noble Lord. It is better in my view that the time is left at the discretion of the judicial authority.

Finally, Amendments Nos. 103A and 103B seek to ensure that a detainee can be excluded from proceedings only if certain requirements are met. I am happy to set out our thinking behind those provisions, which I hope will reassure the noble Lord as to our intentions.

As I said earlier, we have based the regime on Schiesser requirements. That includes a right to appear before the judicial authority. Here, the detainee has a right to make written or oral representations and we consider this to be absolutely crucial. The judicial authority must hear both sides of the case or his discretion will be fettered and, although he must be a member of the judiciary, without this provision the regime would not be judicial in character. The power for the judicial authority to exclude the detainee and/or his or her representative is to ensure that proceedings can be properly managed. Exclusion is a matter for him alone and if he found it essential to exclude the detainee, he would not automatically need to exclude the representative.

Let us consider a case where the detainee was obstructing proceedings simply so that the judicial authority could not complete the proceedings. It would be wrong if the process could be frustrated in that way. The judicial authority must have the ability to run his proceedings in an orderly manner conducive to his important remit. However, I can confirm that the Government are absolutely committed to the principle that the detainee must have a right of appearance.

I have given a lengthy response but I hope that it satisfies noble Lords and that they will agree to withdraw their amendments.

Lord Goodhart

I have a slight problem as most of the debate has been directed not at our amendments but at the Conservative amendments which concern a matter which our amendments do not address; namely, whether the decision we are discussing should be taken by the Secretary of State or by a judicial authority. I have therefore not had an opportunity to speak on that issue. I hope that the Committee will forgive me if I speak briefly on that matter.

I am reluctant to differ from the opinion of the noble and learned Lord, Lord Mayhew, for whom I have the greatest respect both as a lawyer and as someone who played a most distinguished role in Northern Ireland and has enormous knowledge of what happens, and has happened over the years, in that Province. My reluctance to differ from him is, however, somewhat reduced by the fact that the noble Lord, Lord Dubs, has spoken in a contrary way. My views are very much the same as those of the noble Lord, Lord Dubs.

We have to start by lifting our eyes from Northern Ireland, or indeed from the United Kingdom as a whole, and thinking what we would say if we were considering this question in relation to another country, a civilised country with a proper legal system. We would surely say that decisions on detention of suspects, whether for terrorism or other offences, should be taken by the judiciary and not the executive. I think we would all be horrified at the idea that decisions on bail after charges, for example, ought to be taken, or even could be taken, by members of the executive. It seems to me that the principle can be no different with regard to the authority for detention for questioning.

It seems to me therefore that in principle it must be right that the decision on continued detention should be taken by a judicial authority. Indeed the fact that it had to be taken by the Secretary of State in Northern Ireland was not due to the fact that judicial authority was for some reason the wrong thing to apply there but because in that case it was impossible to find a judicial authority willing to act in the matter. That was an extremely unfortunate situation. The European Court of Human Rights recognised in the Brogan case that, in the special circumstances of Northern Ireland, a departure from the proper rule of judicial authority for detention could be justified.

But, when one is creating a permanent Bill which will apply not only in Northern Ireland but throughout the United Kingdom, and which will apply across a wide variety of circumstances and different cases, we must surely incorporate in that kind of legislation the proper rule that the decision on detention should be taken by a judicial authority and not by the executive. It is to be hoped that it will not be necessary to maintain the derogation for Northern Ireland for much longer.

Turning to our amendments, I do not wish to press further the question of whether the appropriate initial period for police custody should be 36 or 48 hours. However, Amendment No. 95A needs serious attention and we may wish to come back on it. There are serious problems in the possibility of a judicial authority allowing continued detention for a period of five days without the suspect having the opportunity to come back to ask for release during that period. If the initial period is two days, it would be necessary for continued detention to be ordered for no more than two days at a time. If the Government do not accept that principle, they will face the possibility of a real challenge to that provision. We may well return to that issue. I suspect that we may not come back on the other issues, but certainly I do not give that commitment at this stage. We shall not take this point further today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 agreed to.

Schedule 8 [Detention]:

7 p.m.

Lord Bach

moved Amendment No. 69: Page 110, line 38, leave out from ("State") to end of line 39 and insert ("shall designate places at which persons may be detained under Schedule 7 or section 41"). The noble Lord said: On behalf of my noble friend, in moving Amendment No. 69 I shall speak also to the other essentially technical amendments with which it is grouped—that is, Amendment Nos. 70, 72, 73 and 166.

In regard to Amendments Nos. 69 and 70, at Committee stage in the Commons we undertook to look again at the drafting of the beginning of Schedule 8 to ensure that it was clear that the Secretary of State's power to designate places at which detainees could be held under the Bill was a general power, not a power to direct that a particular detainee be held at a particular place. Amendment No. 69 is designed to make that intention clear. Amendment No. 70 provides that references to a police station in Schedule 8 include references to any other places the Secretary of State has designated under this power.

Amendment No. 72 provides that where a video recording with sound requirement is in force, the Secretary of State need not also require audio recording. This avoids unnecessary duplication. Amendments Nos. 73 and 166 make it clear that interviews need only be audio or video recorded if they take place at a police station. I beg to move.

On Question, amendment agreed to.

Lord Bach

moved Amendment No. 70: Page 110, line 41, leave out from ("place") to ("be") in line 42 and insert ("which the Secretary of State has designated under sub-paragraph (1) as a place where a person may"). On Question, amendment agreed to.

Lord Bassam of Brighton

moved Amendment No. 71: Page 111, line 25, at end inser— ("( ) This paragraph does not confer the power to take—

1. (a) fingerprints, non-intimate samples or intimate samples (within the meaning given by paragraph 9F below), or
2. (b) relevant physical data or samples as mentioned in section 18 of the Criminal Procedure (Scotland) Act 1995 as applied by paragraph 22 below.").

The noble Lord said: In moving Amendment No. 71 I shall speak also to the other amendments in the group.

On forfeiture, Amendments Nos. 84, 86, 91A and 92A make equivalent provisions for Scotland. Amendments Nos. 105, 107 and 108—no, this is wrong. I apologise to the Committee. My speaking note was out of order.

These amendments set out on the face of the Bill the regime for taking, retaining and using the fingerprints and samples of those detained under the terrorism provisions in England and Wales and Northern Ireland. This regime is modelled closely on that in the Police and Criminal Evidence Act 1984 and the PACE (Northern Ireland) Order 1989.

The Prevention of Terrorism Act 1989 provided for the PACE regime to be applied with certain necessary modifications in terrorism cases. We started by using that approach in the Bill, and this is reflected in the current wording of paragraphs 10 to 15 of Schedule 8. However, we have come to the view that it is more helpful to the reader to set out the regime as it applies in terrorism cases on the face of the Bill—not least because the PACE regime is itself extremely complicated.

The Scottish position is set out in paragraph 22 of Schedule 8. This provides that the relevant provisions of the Criminal Procedure (Scotland) Act 1995 are to be applied in terrorism cases, with certain necessary modifications. I beg to move.

Lord Glentoran

As a question of detail, Amendment No. 71 states, This paragraph does not confer the power to take … fingerprints, non-intimate samples or intimate samples within the meaning given by paragraph 9F below)". Are we removing the power to take fingerprints?

Lord Bassam Brighton

I should make it clear that we are not removing that power.

On Question, amendment agreed to.

Lord Bach

moved Amendments Nos. 72 and 73: Page 111, line 43, at end insert— ("( ) Where the Secretary of State has made an order under sub-paragraph (2) requiring certain interviews to be video recorded with sound—

1. (a) he need not make an order under sub-paragraph (1)(b) in relation to those interviews, but
2. (b) he may do so.").

Page 111, line 45, leave out from ("under") to ("if) in line 46 and insert ("Schedule 7 or section 41").

On Question, amendments agreed to.

Lord Bach

moved Amendment No. 74: Page 113, line 5, at beginning insert ("Subject to sub-paragraph (4A),"). The noble Lord said: In moving Amendment No. 74 I shall speak also to Amendments Nos. 75, 76, 77, 84, 86, 91A, 92A, 105, 107 and 108—11 government amendments in all.

Paragraphs 6 to 9 of Schedule 8 make provision for the rights of detained persons to have someone informed and to consult a solicitor. These paragraphs are modelled on Sections 56 and 58 of the Police and Criminal Evidence Act 1984 and have effect in England and Wales and in Northern Ireland.

Amendments Nos. 74 to 77 complete the replication of Sections 56 and 58 by adding provisions corresponding to Sections 56(5A) and 58(8A). They allow the rights to be delayed if a superintendent believes it will hinder confiscation of criminal proceeds or forfeiture of terrorist property. The rights still cannot, of course, be delayed beyond the 48-hour point in any circumstances. Amendments Nos. 84, 86, 91A and 92A make equivalent provision for Scotland.

Paragraph 36 of Schedule 8 allows information in extension of detention hearings to be withheld from detained persons in certain circumstances. These circumstances are similar to those where rights can be delayed. Amendments Nos. 105, 107 and 108 therefore provide for information to be withheld where this might hinder confiscation or forfeiture. This is subject to the important safeguard that the judicial authority must be satisfied that the conditions apply. I beg to move.

On Question, amendment agreed to.

Lord Bach

moved Amendments Nos. 75 and 76.

Page 113, line 20, at end insert ("or in respect of which a forfeiture order could be made under section 23"). Page 113, line 27, at end insert— ("(4A An officer may also give an authorisation under sub-paragraph (1)) if he has reasonable grounds for believing that—

1. (a) the detained person has committed an offence to which Part VI of the Criminal Justice Act 1988, Part I of the Proceeds of Crime (Scotland) Act 1995, or the Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence) applies,
2. (b) the detained person has benefited from the offence within the meaning of that Part or Order, and
3. (c) by informing the named person of the detained person's detention (in the case of an authorisation under sub-paragraph (1)(a)), or by the exercise of the right under paragraph 7 (in the case of an authorisation under sub-paragraph (1)(b)), the recovery of the value of that benefit will he hindered.").

On Question, amendments agreed to.

The Deputy Chairman of Committees (Baroness Turner of Camden)

In calling Amendment No. 76A, I should point that, if this amendment is agreed to, I cannot call Amendment No. 77.

Lord Goodhart

moved Amendment No. 76A: Page 113, line 45, leave out paragraph 9. The noble Lord said: This is another amendment which has come on the proposal of the Law Society. It removes the requirement that a detainee can consult with his solicitor only in the sight and earshot of a police officer.

Requiring a consultation to take place in the sight and hearing of a police officer breaches the principle that a consultation between a suspect and his solicitor is confidential and protected by legal professional privilege. A suspect has a right to establish what his position is in law and what his legal rights are. He will not be able to give a full account of his situation if his explanation could then be used as evidence against him on the grounds that it had been overheard by the police officer.

Communications made between a lawyer and his client for the purposes of seeking or giving legal advice are privileged and thereby protected from disclosure. The crucial importance of the rule was reinforced by the House of Lords in a decision reported in 1995. The House of Lords said: The principle which runs through all the cases … is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence can never be revealed without his consent. Legal professional privilege is thus ranch more than an ordinary rule of evidence limited in application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests". I recognise that it is not a general rule under Schedule 8 that a detainee can consult with his solicitor only within sight and hearing of a police officer. Nevertheless, the fact that in any circumstances an order can be made to that effect is one which I believe is extremely difficult to justify. I look forward with interest to hearing how the Minister does in fact defend that proposition. I beg to move.

Lord Cope of Berkeley

I do not want to anticipate too much of what the Minister will say in responding to the amendment. I think that this provision has validity and, in some cases, will be important. It is not available very easily. It has to be authorised by an assistant chief constable or a commander and can take place only in the circumstances set out in paragraph 8(4) of Schedule 8, which are serious circumstances and will not normally apply. Therefore, I am not at the moment persuaded that it would be right to accept this amendment.

Lord Bassam of Brighton

I welcome the opportunity for a short debate on access to legal advisers. We believe that we have done a very significant amount to put the position on a much clearer and consistent footing through this piece of legislation and the codes which flow from it.

First, we have put it beyond doubt in respect of all three jurisdictions that access to a solicitor may be denied essentially only where it is believed that access might compromise the ongoing investigation, and then for a maximum 48 hours. That is consistent with a longer period of detention under the police authority that we have discussed already. We would not expect access to be denied very often; indeed, we have no records of access being denied in terrorist cases in England and Wales in recent years. But we believe it is right, as in ordinary criminal cases under PACE, to provide for that very, very occasional possibility.

Secondly, we propose to ensure that once a person has been granted access to a solicitor, that solicitor may, save in the most exceptional of circumstances, be able to be present at all interviews. That is already the position in England and Wales under paragraph 6.8 and following of PACE code C. It is our intention, also by code, to make that the position too in Northern Ireland. For Scotland, where no equivalent of the PACE code exists, that position is achieved already by paragraph 21 of Schedule 8. Currently, this provision is in force only in England and Wales, and again our records suggest that it has not been used in terrorist cases in recent times.

Thirdly, I turn to the focus of this debate: the provision that once access to a solicitor has been granted, a police officer of the rank of assistant chief constable may authorise that interviews between the detainee and his solicitor must be in the sight and hearing of a police officer unconnected with the case and of inspector or above rank. The authorisation may be given only if the assistant chief constable believes that not to do so would compromise the ongoing terrorist investigation in one of the ways set out in paragraph 8(4) of Schedule 8.

It must be stressed that we do not envisage that this power will be used other than in the most exceptional of circumstances. The fact that an authorisation has to be granted by an officer of ACC rank or above very neatly and clearly underlines this point. The Government are anxious to provide detainees under the terrorism powers with access to a solicitor. We accept that this is a very important and fundamental right.

Just as with other issues concerning access to solicitors, we do not accept that private access is an absolute right. We accept that it is acutely uncomfortable to envisage that circumstances may arise where it is believed a terrorist investigation might in some way be compromised if private access to a solicitor were permitted, but we do believe that provision should be made. An example might be where there was intelligence that a detainee might place a solicitor under extreme duress if a private interview were held.

Paragraph 9 of Schedule 8 provides for private access to be limited in such exceptional circumstances. The threshold is very high, with authorisation at ACC rank, and any decision could be tested by judicial review which, after 2nd October, could include consideration of whether convention rights had been observed. We believe we have to provide for the case, however rare, where there are reasonable grounds for suspecting and for believing that a private interview might compromise important terrorist investigations.

In the light of those comments, I hope that the noble Lord will reflect further on our arguments and not press his amendment.

Lord Goodhart

I thank the Minister. I shall consider what he has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach

moved Amendments Nos. 77 and 78. Page 114, line 6, at end insert ("or the consequence specified in paragraph 8(4A)(c)").

Page 114, line 15, leave out paragraphs 10 to 15 and insert— ("9A.—(1) This paragraph applies where a person is detained in England, Wales or Northern Ireland under Schedule 7 or section 41.

(2) Fingerprints may be taken from the detained person only if they are taken by a constable—

1. (a) with the appropriate consent given in writing, or
2. (b) without that consent under sub-paragraph (4).

(3) A non-intimate sample may be taken from the detained person only if it is taken by a constable—

1. (a) with the appropriate consent given in writing, or
2. (b) without that consent under sub-paragraph (4).

(4) Fingerprints or a non-intimate sample may be taken from the detained person without the appropriate consent only if—

1. (a) he is detained at a police station and a police officer of at least the rank of superintendent authorises the fingerprints or sample to be taken, or
2. (b) he has been convicted of a recordable offence and, where a non-intimate sample is to be taken, he was convicted of the offence on or after 10th April 1995 (or 29th July 1996 where the non-intimate sample is to be taken in Northern Ireland).

(5) An intimate sample may be taken from the detained person only if—

1. (a) he is detained at a police station,
2. (b) the appropriate consent is given in writing,
3. (c) a police officer of at least the rank of superintendent authorises the sample to be taken, and
4. (d) subject to paragraph 9D(2) and (3), the sample is taken by a constable.

(6) An officer may give an authorisation under sub-paragraph (4)(a) or (5)(c) only if—

1. (a) in the case of a person detained under section 41, the officer reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a), and the officer reasonably believes that the fingerprints or sample will tend to confirm or disprove his involvement, or
2. (b) in any case, the officer is satisfied that the taking of the fingerprints or sample from the person is necessary in order to assist in determining whether he falls within section 40(1)(b).

(7) If an authorisation under sub-paragraph (4)(a) or (5)(c) is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.

9B.—(1) Before fingerprints or a sample are taken from a person under paragraph 9A, he shall be informed—

1. (a) that the fingerprints or sample may be used for the purposes of paragraph 9E(4), section 63A(1) of the Police and Criminal Evidence Act 1984 and Article 63A(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples), and
2. (b) where the fingerprints or sample are to be taken under paragraph 9A(2)(a), (3)(a) or (4)(b), of the reason for taking the fingerprints or sample.

(2) Before fingerprints or a sample are taken from a person upon an authorisation given under paragraph 9A(4)(a) or (5)(c), he shall be informed—

1. (a) that the authorisation has been given,
2. (b) of the grounds upon which it has been given, and
3. (c) where relevant, of the nature of the offence in which it is suspected that he has been involved.

(3) After fingerprints or a sample are taken under paragraph 9A, there shall be recorded as soon as is reasonably practicable any of the following which apply—

1. (a) the fact that the person has been informed in accordance with sub-paragraphs (1) and (2),
2. (b) the reason referred to in sub-paragraph (1)(b),
3. (c) the authorisation given under paragraph 9A(4)(a) or (5)(c),
4. (d) the grounds upon which that authorisation has been given, and
5. (e) the fact that the appropriate consent has been given.

9C.—(1) This paragraph applies where—

1. (a) two or more non-intimate samples suitable for the same means of analysis have been taken from a person under paragraph 9A,
2. (b) those samples have proved insufficient, and
3. (c) the person has been released from detention.

(2) An intimate sample may be taken from the person if—

1. (a) the appropriate consent is given in writing,
2. (b) a police officer of at least the rank of superintendent authorises the sample to be taken, and
3. (c) subject to paragraph 9D(2) and (3), the sample is taken by a constable.

(3) Paragraphs 9A(6) and (7) and 9B shall apply in relation to the taking of an intimate sample under this paragraph; and a reference to a person detained under section 41 shall be taken as a reference to a person who was detained under section 41 when the non-intimate samples mentioned in sub-paragraph (1)(a) were taken.

9D.—(1) Where appropriate written consent to the taking of an intimate sample from a person under paragraph 9A or 9C is refused without good cause, in any proceedings against that person for an offence—

1. (a) the court, in determining whether to commit him for trial or whether there is a case to answer, may draw such inferences from the refusal as appear proper, and
2. (b) the court or jury, in determining whether that person is guilty of the offence charged, may draw such inferences from the refusal as appear proper.

(2) An intimate sample other than a sample of urine or a dental impression may be taken under paragraph 9A or 9C only by a registered medical practitioner acting on the authority of a constable.

(3) An intimate sample which is a dental impression may be taken under paragraph 9A or 9C only by a registered dentist acting on the authority of a constable.

(4) Where a sample of hair other than pubic hair is to be taken under paragraph 9A the sample may be taken either by cutting hairs or by plucking hairs with their roots so long as no more are plucked than the person taking the sample reasonably considers to be necessary for a sufficient sample.

9E.—(1) This paragraph applies to—

1. (a) fingerprints or samples taken under paragraph 9A or 9C, and
2. (b) information derived from those samples.

(2) The fingerprints, samples or information may be used only for the purpose of a terrorist investigation.

(3) In particular, a check may not be made against them under—

1. (a) section 63A(1) of the Police and Criminal Evidence Act 1984 (checking of fingerprints and samples), or
2. (b) Article 63A(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples),

except for the purpose of a terrorist investigation.

(4) The fingerprints, samples or information may be checked, subject to sub-paragraph (2), against—

1. (a) other fingerprints or samples taken under paragraph 9A or 9C or information derived from those samples,
2. (b) relevant physical data or samples taken by virtue of paragraph 22,
3. (c) any of the fingerprints, samples and information mentioned in section 63A(1)(a) and (b) of the Police and Criminal Evidence Act 1984 (checking of fingerprints and samples),
4. (d) any of the fingerprints, samples and information mentioned in Article 63A(1)(a) and (b) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples), and
5. (e) fingerprints or samples taken under section 15(9) of, or paragraph 7(5) of Schedule 5 to, the Prevention of Terrorism (Temporary Provisions) Act 1989 or information derived from those samples.

(5) This paragraph (other than sub-paragraph (4)) shall apply to fingerprints or samples taken under section 15(9) of, or paragraph 7(5) of Schedule 5 to, the Prevention of Terrorism (Temporary Provisions) Act 1989 and information derived from those samples as it applies to fingerprints or samples taken under paragraph 9A or 9C and the information derived from those samples.

9F.—(1) In the application of paragraphs 9A to 9E in relation to a person detained in England or Wales the following expressions shall have the meaning given by section 65 of the Police and Criminal Evidence Act 1984 (Part V definitions)—

1. (a) "appropriate consent",
2. (b) "fingerprints",
3. (c) "insufficient",
4. (d) "intimate sample",
5. (e) "non-intimate sample",
6. (f) "registered dentist", and
7. (g) "sufficient".

(2) In the application of paragraphs 9A to 9E in relation to a person detained in Northern Ireland the expressions listed in sub-paragraph (1) shall have the meaning given by Article 53 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (definitions).

(3) In paragraph 9A "recordable offence" shall have—

1. (a) in relation to a person detained in England or Wales, the meaning given by section 118(1) of the Police and Criminal Evidence Act 1984 (general interpretation), and
705
2. (b) in relation to a person detained in Northern Ireland, the meaning given by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (definitions).").

The noble Lord said: These amendments were spoken to with earlier amendments. I beg to move.

On Question, amendments agreed to.

Lord Bach

moved Amendment No. 79: Page 116, line 11, leave out paragraph 16. The noble Lord said: In moving Amendment No. 79, I wish to speak to seven other government amendments, Amendments Nos. 80, 81, 82, 83, 85, 87 and 92D.

This group of drafting amendments ensures that Part I of Schedule 8 in its application to Scotland is consistent with and, where possible, similar to the drafting of Part I of Schedule 8 for England, Wales and Northern Ireland. Amendment No. 79 removes paragraph 16 which becomes unnecessary in view of the other changes being made to the Scottish section of Part I of the schedule. Amendments Nos. 80, 81, 82, 83, 85, 87 and 92D align the drafting of paragraph 17 for Scotland with the drafting of paragraphs 6 and 8(b) for England, Wales and Northern Ireland.

Unless your Lordships require me to do so, I shall not speak to each of these relatively minor drafting amendments individually. I beg to move.

Lord Cope of Berkeley

All of these drafting amendments—I accept that they are drafting amendments of some complexity—refer to Scotland. The fact of having to bring them forward, and for that matter other amendments in different parts of the Bill, implies to me that there was a lack of consultation between those who drafted the Bill and the Scottish authorities. We were told earlier that the Scottish Parliament had not been consulted on the Bill although the Scottish Executive had been. Whereas terrorism and the pursuit of terrorism are reserved matters properly dealt with by this Parliament, the law and the administration of the law in Scotland are devolved matters. The Bill affects devolved matters in that respect because it alters the way in which the law is managed in Scotland. Some of the amendments refer to points of that kind. Can the Minister tell us about the consultation that took place and why it was, judging by the amendments, ineffective?

Lord Bach

I cannot tell the Committee much more about the consultation than I did at the first sitting of the Committee last week. But I can explain why the provisions for Scotland were originally drafted differently.

These are not, for the most part, original provisions. They have appeared in earlier Acts about terrorism and those Acts have not always been concerned with terrorism. In drafting the current provisions for Scotland, account was taken of the earlier provisions. So far as is possible and consistent with the separate and different Scottish criminal system, the aim is to have consistency of approach between the provisions for Scotland on the one hand and for England, Wales and Northern Ireland on the other. The amendments are part of the process of achieving that consistency. If the noble Lord is concerned that there has been some kind of difficulty in relation to consultation between Scotland and England on this matter, he can rest assured that that is not the case.

On Question, amendment agreed to.

Lord Bach

moved Amendments Nos. 80 to 83: Page 116, line 12, after ("detained") insert ("under Schedule 7 or section 41 at a police station in Scotland"). Page 116, line 14, leave out ("reasonably"). Page 116, line 14, at end insert— ("( ) The person named must be—

1. (a) a friend of the detained person,
2. (b) a relative, or
3. (c) a person who is known to the detained person or who is likely to take an interest in his welfare.

( ) Where a detained person is transferred from one police station to another, he shall be entitled to exercise the right under sub-paragraph (1) in respect of the police station to which he is transferred."). Page 116, line 16, leave out from beginning to ("in").

On Question, amendments agreed to.

Lord Bach

moved Amendment No. 84: Page 116, line 18, at end insert ("or where paragraph 19(3A) applies").

On Question, amendment agreed to.

Lord Bach

moved Amendments Nos. 85 to 87: Page 116, line 26, leave out from beginning to ("in"). Page 116, line 28, at end insert ("or where paragraph 19(3A) applies"). Page 116, line 29, at end insert— ("( ) Where a person is detained under section 41 he must be permitted to exercise his rights under this paragraph before the end of the period mentioned in subsection (3) of that section."). The noble Lord said: These amendments have already been spoken to. I beg to move.

On Question, amendments agreed to.

The Deputy Chairman of Committees

In calling Amendment No. 87A, I have to say that if it is agreed to, I cannot call Amendments Nos. 87B to 88B inclusive.

Lord Bassam of Brighton

moved Amendment No. 87A: Page 116, line 30, leave out paragraph 18. The noble Lord said: This is a substantive group of amendments for Scotland. They pick up a point to which the Scottish Centre for Human Rights has drawn careful attention. I see that the noble Lord, Lord Dubs, in his amendments has sought also to address the problem. I am grateful to him for doing that. I am most grateful to the Scottish Centre for Human Rights for having drawn our attention to the problem.

The problem and the amendments are concerned with the position of a child who is detained in Scotland under Clause 41 of, or Schedule 7 to, the Bill. Paragraph 18 of Schedule 8 deals with the rights of a detained child by modifying paragraph 17 which deals with the rights of detained adults. The provisions of paragraphs 17 and 18 are not new. They repeat provisions which the government of the day introduced in 1984–85. Paragraph 18 requires that where a child has been detained, the police must inform his parent without delay of his detention and where he is being detained and must also allow the parent access to the child. However, the police may authorise a delay of up to 48 hours in telling the parent about the child's detention, where the police consider that to tell the parent earlier would prejudice the investigation of crime or the apprehension and prosecution of offenders. So, in an extreme, and I would hope unlikely, case a parent may not know for up to 48 hours where his or her child is and why.

Paragraph 20(2) of Schedule 8 at present states that the provisions about detention of an adult under paragraph 17 and, more particularly, of a child under paragraph 18 replace any other rule of law about rights on detention. In this context, the relevant provision which is replaced by virtue of paragraph 20(2) is Section 15 of the Criminal Procedure (Scotland) Act 1995, on which I shall say a little more shortly.

The Scottish Human Rights Centre quite correctly has pointed out that the effect of paragraph 20(2) is to put a child detained in Scotland under the Bill in a different position from a child detained in England, Wales or Northern Ireland under the Bill. The effect also of paragraph 20(2) is to put the child detained in Scotland under the Bill in a different position from a child detained in Scotland on any other ground. The position in England, Wales and Northern Ireland is that the PACE legislation in its various forms and codes issued under it will require that the child's parent or guardian must be told without delay that the child is being detained and where he is being detained. It is not the intention of this Government, in this Bill, to have such a prejudicial difference for the child in Scotland. I have therefore brought forward amendments to remedy the position.

The first main amendment is Amendment No. 87A. This removes paragraph 18 from Schedule 8 to the Bill. Amendments Nos. 90A, 90B, 92B and 92C and 93A and 93B are consequential on that removal. The second main amendment is Amendment No. 93C. This is concerned only with the child and it applies, in effect, the general criminal law in Section 15(4) of the Scottish 1995 Act.

The first effect of applying Section 15(4) of the 1995 Act is that in every case where a child is detained in Scotland under Clause 41 or Schedule 7 his parent, if known, must be informed without delay that he has been detained and where he is being detained. The second effect is that the child's parent must be allowed access to him unless the police have reasonable cause to suspect that the parent has himself or herself been involved in the offence for which the child is being detained. In those cases, the police may nevertheless allow the parent access to the child but they are not necessarily required to do so.

In every case where a parent is to have access, the nature and extent of the access which is granted may be subject to any restriction which is essential for ensuring the wellbeing of the child or for the investigation of the alleged offence. That is the effect of the application of Section 15(4) of the Scottish 1995 Act. It puts the child detained in Scotland in a similar position to a child detained under the Bill in England, Wales and Northern Ireland.

As the Committee will note, Amendment No. 93C contains a definition of "child" and "parent" by reference to Section 15 of the Scottish 1995 Act. That is the same definition which is currently provided at paragraph 20(1) of Schedule 8 and which for drafting reasons Amendment No. 93C removes.

With that explanation, I beg to move the amendment. In doing so, I should repeat the Government's great appreciation of the vigilance of the Scottish Human Rights Centre in pointing out to us the need for this change to be made. I should also commend the good intentions of the noble Lord, Lord Dubs, in tabling his amendments which are undoubtedly designed to achieve a similar effect. I trust that, with that explanation, your Lordships will agree to these amendments and that the noble Lord, Lord Dubs, will be persuaded, if he needs persuading, that the government amendments cover the same territory, perhaps in a slightly superior way, as the ones which he tabled and that he will not therefore move his amendments.

7.30 p.m.

Lord Dubs

I am grateful to my noble friend. I think it has proved to be a tribute to the benefits of bicameralism that we have been able to achieve these amendments, which might not otherwise have appeared in the Bill. What my noble friend has said reflects entirely the aims of my own amendments. I presume that, technically, his approach is better than mine and therefore I shall not move my amendments. Once again, I am grateful to my noble friend for meeting the point at issue here.

Lord Cope of Berkeley

The Minister's explanation of these amendments has commended them very well. However, I hesitate to agree with the noble Lord, Lord Dubs, that his drafting would inevitably prove inferior to that of the Minister. Nevertheless, on this occasion I shall of course accept his judgment.

On Question, amendment agreed to.

[Amendment No. 87B not moved.]

[Amendment No. 88 had been withdrawn from the Marshalled List.]

[Amendments Nos. 88A and 88B not moved.]

[Amendments Nos. 89 and 90 had been withdrawn from the Marshalled List.]

Lord Bach

moved Amendments Nos. 90A and 90B: Page 117, line 15, leave out from ("consultation") to ("be") and insert ("mentioned in paragraph 17(4) shall"). Page 117, line 19, leave out from ("consultation") to ("shall") in line 20.

On Question, amendments agreed to.

[Amendment No. 91 had been withdrawn from the Marshalled List.]

Lord Bach

moved Amendment No. 91A: Page 117, leave out lines 22 to 24 and insert— ("(3) The grounds mentioned in paragraph 17(2) and (5) and in sub-paragraph (1) are—

1. (a) that it is in the interests of the investigation or prevention of crime;
2. (b) that it is in the interests of the apprehension, prosecution or conviction of offenders;
3. (c) that it will further the recovery of property obtained as a result of the commission of an offence or in respect of which a forfeiture order could be made under section 23;
4. (d) that it will further the operation of Part VI of the Criminal Justice Act 1988, Part I of the Proceeds of Crime (Scotland) Act 1995 or the Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence).").

On Question, amendment agreed to.

[Amendment No. 91B not moved.]

[Amendment No. 92 had been withdrawn from the Marshalled List.]

Lord Bassam of Brighton

moved Amendments Nos. 92A, 92B, 92C and 92D: Page 117, line 24, at end insert— ("(3A) This sub-paragraph applies where an officer mentioned in paragraph 17(2) or (5) has reasonable grounds for believing that—

1. (a) the detained person has committed an offence to which Part VI of the Criminal Justice Act 1988, Part I of the Proceeds of Crime (Scotland) Act 1995 or the Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence) applies,
2. (b) the detained person has benefited from the offence within the meaning of that Part or Order, and
3. (c) by informing the named person of the detained person's detention (in the case of an authorisation under paragraph 17(2)) or by the exercise of the entitlement under paragraph 17(4) (in the case of an authorisation under paragraph 17(5) the recovery of the value of that benefit will be hindered.").

Page 117, line 25, leave out ("or non-compliance"). Page 117, line 26, leave out from ("rights") to ("mentioned"). Page 117, leave out lines 27 and 28 and insert ("paragraph 17(1) and (4) —

1. (a) if the authorisation is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable,
2. (b) the detained person shall be told the reason for the delay as soon as is reasonably practicable, and
3. (c) the reason shall be recorded as soon as is reasonably practicable.").

On Question, amendments agreed to.

[Amendment No. 93 had been withdrawn from the Marshalled List.]

Lord Bassam of Brighton

moved Amendments Nos. 93A, 93B, 93C and Amendment No. 94: Page 117, leave out lines 29 to 31. Page 117, line 32, leave out ("and this paragraph"). Page 117, line 35, at end insert— ("( ) But, where a person detained under Schedule 7 or section 41 at a police station in Scotland appears to a constable to be a child—

1. (a) the other person named by the person detained in pursuance of paragraph 17(1) shall be that person's parent, and
2. (b) section 15(4) of the Criminal Procedure (Scotland) Act 1995 shall apply to the person detained as it applies to a person who appears to a constable to be a child who is being detained as mentioned in paragraph (b) of section 15(1) of that Act,

and in this sub-paragraph "child" and "parent" have the same meaning as in section 15(4) of that Act."). Page 117, line 45, leave out ("section 41 or Schedule 7") and insert ("Schedule 7 or section 41 at a police station in Scotland").

On Question, amendments agreed to.

[Amendments Nos. 95 to 104 not moved.]

Lord Bassam of Brighton

moved Amendment No. 105: Page 122, line 13, at beginning insert ("Subject to sub-paragraph (2A),").

On Question, amendment agreed to.

[Amendment No. 106 not moved.]

Lord Bach

moved Amendments Nos. 107 and 108: Page 122, line 19, at end insert— ("( ) the recovery of property in respect of which a forfeiture order could be made under section 23 would be hindered,"). Page 122, line 27, at end insert— ("(2A) A judicial authority may also make an order under sub-paragraph (1) in relation to specified information if satisfied that there are reasonable grounds for believing that—

1. (a) the detained person has committed an offence to which Part VI of the Criminal Justice Act 1988. Part I of the Proceeds of Crime (Scotland) Act 1995, or the Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence) applies,
2. (b) the detained person has benefited from the offence within the meaning of that Part or Order, and
3. (c) the recovery of the value of that benefit would be hindered, if the information were disclosed.").

On Question, amendments agreed to.

[Amendments Nos. 109 to 113 not moved.]

Schedule 8, as amended, agreed to.

Lord Bach

I think that this is an appropriate moment to break. I suggest that the Committee stage begin again not before twenty-six minutes to nine. I therefore beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.