Counter-Terrorism Bill

My Lords, I am most grateful to the Minister for giving such detailed consideration to the two amendments that we tabled. I am somewhat puzzled that he thinks that our drafts are in some way inconsistent with the judgment of the case of R v E. I have just glanced at paragraph 69 of the 10th report of the Joint Committee on Human Rights for the Session 2007-08. It states: "““The Secretary of State argued in the Court of Appeal in E that, having consulted the chief of police at the outset, she need do no more thereafter than make periodic inquiry whether the ""prospect of prosecution had increased. The Court of Appeal rejected that argument and held that more was called for from the Secretary of State””." The Court of Appeal stated: "““Once it is accepted that there is a continuing duty to review … it is implicit in that duty that the Secretary of State must do what he reasonably can to ensure that the continuing review is meaningful … it was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution””." Paragraph 70 of the Joint Committee’s report states: "““The House of Lords in E endorsed the Court of Appeal's approach””." I cannot understand what is inconsistent in our Amendment No.48C with that conclusion of the Appellate Committee of your Lordships' House. It sets out as accurately as possible the nature of the appropriate relationship between the Secretary of State and the police stipulated by the Appellate Committee. I was pleased to hear from the noble Baroness, Lady Manningham-Buller, that co-operation in the post-control order process between the Secretary of State and the police was as good as it possibly could be in the circumstances of the raw material with which they had to deal. If that is so, what possible harm could the amendment do the Government or the public interest? The great good that it does the rule of law is to make the statement explicit in legislation rather than leave it implied in a case which is, anyway, binding on the Government. The principles set out in Amendment No. 48C are principles that the Government are obliged to accept as a result of the law of the land determined by its highest court. Why are the Government frightened of having it set out in legislation? Perhaps it is because they have further thoughts about how they might resile from the court's judgment. That could well be implied from what the Minister said. As far as Amendment No. 48B is concerned, particularly in the latter part of his speech, the Minister went out of his way to emphasise the importance of the CPS as an independent body; but that importance is nowhere emphasised in the Prevention of Terrorism Act 2005 itself. The main purpose of Amendment No. 48B is to state, in terms, in the Bill that prosecutorial decisions are taken not by the police but by the CPS. The Minister then drew my attention to the way in which the amendment might damage the public interest; but as far as prosecutorial decisions are concerned it is the DPP who is constitutionally responsible for determining where the public interest lies before he decides that a prosecution should go forward. He will undoubtedly consult on this matter. He will consult in many directions and if necessary take the view of the Attorney-General. If he does, the Attorney-General is almost certain to approach the Home Secretary before she makes her mind up as to what advice to give to the DPP about where the public interest lies. It is through that process that the public interest under our constitution is defined. It is not defined by the Secretary of State, the police or the security services. It is defined by the DPP, if necessary on advice of the Attorney-General. There is nothing inconsistent with those constitutional principles in our Amendment No. 48B. I am grateful to the Minister for setting out his views in such detail but, in the circumstances, I wish to test the opinion of the House. On Question, Whether the said amendment (No. 48B) shall be agreed to? Their Lordships divided: Contents, 103; Not-Contents, 112. [Amendment No. 48C not moved.]