Counter-Terrorism Bill

My Lords, I thank the noble Lord, Lord Wallace, for his amendment because it is important that we give this matter some exposure. I hope that my explanation will cover the points he has raised. Clause 29 gives UK-wide jurisdiction for specific terrorism offences, irrespective of which jurisdiction they were committed in. The amendments seek to alter the provisions in two ways. Amendments Nos. 33 and 35 would make it a legal requirement for the law officer of the jurisdiction in which the offence was committed to give written consent to the transfer of cases from that part of the UK to another part of the UK for prosecution under the jurisdiction provided by the clause. Amendment No. 34 would require the Attorney-General, the Lord Advocate and the Director of Public Prosecutions for Northern Ireland to jointly issue, and from time to time revise, a code of practice regarding the operation of Clause 29. That code of practice would first have to be issued in draft, consulted on and laid before Parliament under the affirmative resolution procedure. Once final, it would be binding on anyone exercising an investigative or prosecutorial function in relation to the clause. Noble Lords will recall that the Lord Advocate, Elish Angiolini, gave evidence to the Commons Public Bill Committee, saying that she did not think an express provision of consent would be helpful. We agree that the addition of a requirement for written consent would be unhelpful. Dominic Grieve spoke about this very issue at the previous Report stage of the Bill, saying: "““Given what the Lord Advocate has said so emphatically, I would be loth to interfere. I appreciate the hon. Gentleman’s anxiety, and perhaps I can reassure him by saying that if there were to be a serious difference of view on an issue of the kind we are discussing””—" that is, which jurisdiction a prosecution should take place in— "““it would create a mini constitutional crisis and the House would have to return to the issue. The smooth running of constitutions depends on more than our getting a series of rules right. If an established relationship is so clear and self-confident—at both ends—that no one has ever seen a problem on which there has not been a meeting of minds, I would be loth to interfere with it””." He also discussed the disadvantages of including a requirement: "““The disadvantage would be that where a relationship works well without such a requirement—and is therefore seen perhaps as a pillar of the good working of our Union, which I support—I would not wish to see its having to be qualified with even the suggestion that it would require some statutory clarification in certain circumstances””.—[Official Report, Commons, 10/6/08; col. 228.]" The Government are with Dominic Grieve on this issue. As we have said previously, experience shows that where jurisdictional issues arise, the Lord Advocate and the Attorney-General, in conjunction with the Director of Public Prosecutions and the DPP for Northern Ireland, would be engaged immediately in discussions to resolve issues arising from concurrent jurisdiction. The relevant law officers and independent directors, with their role in prosecutions, and acting in the public interest, will consult on the decision about the most appropriate place for the prosecution to take place. We believe that this practice, which is already in place, provides sufficient protection. This is not simply about the personal relationship between the current Lord Advocate and the Attorney-General, good as it might be. That was suggested a bit in the previous debate on this matter. The good relationship we are talking about is between the offices of relevant law officers, as evidenced by the good co-operation and collaborative approach shown between successive office-holders down the years when dealing with cross-border issues. We also believe that the decision on the appropriate jurisdiction is likely to be taken early on in an investigation during the evidence-gathering stage—indeed, it needs to be. Introducing a bureaucratic requirement for written consent could well slow down an investigation. The same arguments apply to the issue of the proposed code of practice for this clause, as outlined in Amendment No. 34. Decisions about how to pursue a criminal investigation where conduct crosses UK borders, or a combination of UK and international borders, will be very fact-sensitive. No code, whether statutory or otherwise, could set out rules that would enable the outcome to be determined in advance in any given case; it could only ever set out general considerations that were relevant. We also need to be careful to minimise the scope for litigation that would seek to second-guess investigative and prosecutorial decisions. I remind the House of the purpose of this clause: it seeks to remove an impediment to the prosecution of cross-border terrorism activity in the UK by avoiding the need for multiple trials in multiple jurisdictions if that would not best serve the public interest. In removing that impediment, we do not want to put a new barrier in the way. I reassure the House that the Lord Advocate and the Attorney-General will set out some of the main considerations that may be relevant to decisions made under Clause 29, and that these will be made available in the House Library before the provisions are brought into force. On a technical level, the amendment is also deficient in that, for example, the definition of ““relevant law officer”” does not cover an offence committed in Wales. Reference to where an offence is committed is not really sufficient either as, in these cases, the offence is likely to have been committed across two or more jurisdictions. The governing principle in common law that Clause 29 seeks to override is that it is where the substantial part of the criminality takes place that determines jurisdiction. That concept is not captured in the amendment. On this basis, I hope the noble Lord will feel that the amendment can be withdrawn.