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Terrorism Bill

moved Amendment No. 74:"Page 22, line 10, after ““Kingdom”” insert ““except Scotland””" The noble and learned Lord said: My Lords, I should like first to compliment the noble Baroness on her remarkable ability to utter words familiar to a Scotsman on Burns Night and to do so in the appropriate manner. Perhaps it is something to do with her name. The amendment is concerned to ensure that, in Scotland, it is only the Lord Advocate or a procurator fiscal who may apply for a warrant extending detention, or for the extension of the period of such a warrant, and that the police in Scotland should no longer have the power to do so. Under Section 41 of the Terrorism Act 2000, the maximum period of detention is 14 days, and only a police officer of at least the rank of superintendent may make applications for extension of detention or for the extension of the period of such a detention. In Scotland, the applications are made to a sheriff. The Bill extends the period of detention to 28 days, and introduces a senior judge as the judicial authority where the period of detention is sought to be extended beyond 14 days. On any view, it would clearly be inappropriate that a police officer in Scotland should make any application to a senior judge. Indeed, I understood that to be recognised when the Government accepted my amendment in Committee, adding the Lord Advocate to the list which now appears in Clause 23(2), which sets out four separate individuals to whom power is granted to apply for a warrant extending detention, or for the extension of the period of the warrant. The amendment’s purpose is to ensure that proper recognition is given to the distinct framework of the criminal justice system in Scotland and the equally distinct responsibilities for criminal investigation between the Lord Advocate, as the prosecuting authority, and the police in Scotland. They are not identical to those which obtain in England, Wales or Northern Ireland. I touched on those matters in amendments that I moved in Committee, when I reminded the Committee that the Lord Advocate is the head of the system of prosecution and investigation of crime in Scotland, and that he has statutory powers to instruct the police in the investigation and reporting of crime under Section 17 of the Police (Scotland) Act 1967 and Section 12 of the Criminal Procedure (Scotland) Act 1995. The Lord Advocate acts through Crown counsel and the High Court of Justiciary, the Supreme Court, and through procurators fiscal in the sheriff and lower courts. The Bill gives some recognition to the different framework and responsibilities within which the criminal justice system in Scotland operates, as compared with the system elsewhere in the United Kingdom. The Bill, for instance, requires that for prosecutions elsewhere in the United Kingdom, consent should be given to the institution of proceedings by the Director of Public Prosecutions or the Attorney-General, as set out, as we heard very recently, in Clause 19. I mention in passing that it is perhaps an oddity that the effect of an amendment that was proposed in your Lordships’ House earlier would have imposed certain matters of discretion on the Attorney-General only, and would not have had an effect on the Lord Advocate of Scotland. The Minister explained in Committee on 7 December 2005 at cols. 735 and 736 that because of the structure of prosecutions in Scotland and the overall responsibility of the Lord Advocate for prosecutions, it was unnecessary to extend Clause 19 to include specific reference to the Lord Advocate. To take another example, in Clause 28, on search, seizure and forfeiture of terrorist publications and its application to Scotland, it is the procurator fiscal who makes the application for a warrant, not a constable as elsewhere in the United Kingdom. In Scotland the application is made to a sheriff, not to a justice of the peace, as elsewhere. When an amendment to the same effect was debated in Committee on 13 December 2005, I said in col. 1148 that I understood that even at present an application made under paragraph 29 of Schedule 8 to the Terrorism Act 2000, which provides for the applications for a warrant extending exemption, or for the extension of the period of such a warrant, was normally made to a sheriff by the procurator fiscal, with the assistance of senior police officers. Thus there would appear to be no difficulty in removing from the police in Scotland the capacity to seek a warrant extending detention, let alone further detention. It would also ensure—consistent with the general tenor of such legislation on the investigation and prosecution of serious offences, and which touches on the rights of individual citizens—that any application is made only after the Lord Advocate or one of his officials responsible for the investigation and prosecution of crime in Scotland, has independently assessed the appropriateness of the grounds for making such an application. I refer again to Clause 24(3) of the Bill, which sets out the reasons for the judicial authority to be satisfied that further detention is necessary before granting an application. It is arguable that those are the kind of reasons that should be considered by the applicant before he even goes before the judicial authority. In reply, the Minister said that the amendment,"““would reverse the current arrangements under which police officers can apply for such extensions. We see no reason why we should reverse the existing situation or create an arrangement in Scotland which is different from that in the rest of the UK””.—[Official Report, 13/12/05; col. 1149.]" I have already pointed out that in the present Bill there are arrangements that are different from the rest of the United Kingdom. Another example can be found in the provisions for all premises warrants for England and Wales and Northern Ireland in Clause 26, and for Scotland in Clause 27. The Minister did not in her reply answer the point that I had made about what I understood to be the normal practice in Scotland. If at present it is the normal practice that the procurator fiscal makes applications under paragraph 29 of Schedule 8 of the 2000 Act, there can be no substantial difficulty in reversing the existing situation in Scotland. I would be grateful if the Minister will answer two questions, of which I have already given her notice. First, was my understanding of the normal practice followed in Scotland correct? Secondly, have police officers in Scotland made such applications independently of a procurator fiscal and in what circumstances did that occur? If they have never done so, that would appear to support the view that the arrangements in Scotland could be amended without difficulty and without doing any violence to the operation of the current or proposed arrangements for warrants extending the period of detention of terrorist suspects. In her reply, at col. 150, the Minister also indicated that she would ensure that the Lord Advocate had the benefit of reading Hansard. I look forward to hearing why the Lord Advocate considers that my amendment would in any way be detrimental to the operation of the provisions of the 2000 Act or the new provisions for Scotland in the Bill if, in fact, he considers that to be the case. This being Burns Night, I hope that the Minister will be able to give this a fair wind. I beg to move.