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Lord Bassam of Brighton: We would be wise to be cautious in these matters, given the serious nature of terrorism and terrorist offences. It is that precautionary principle that has informed our approach here.
Lord Goodhart: I am grateful to the noble Lord for giving way. The conviction would not be set aside unless it had been made after the Home Secretary had rejected the application for the de-proscription order. So someone who is convicted of membership before the de-proscription order is applied for, or even after application has been made and before it has been dealt with by the Home Secretary, would find that the conviction would stand.
Lord Lester of Herne Hill: I apologise for intervening once more. The noble Lord has said that that seems to be "quite right". How can it be right for someone to be convicted of a form of conduct which has been proscribed without fair warning? The noble Baroness, Lady Park of Monmouth, rightly pointed out that terrorists must know what they are up to, but they will not know, until they have been informed that this procedure has been triggered, that they will be committing terrorist offences under this part of the Bill. Surely that violates the fundamental principle of legal certainty? Is not that the problem which needs to be addressed, whether by enhancing the rights of appeal or in some other way?
I am quite happy to look at the point that has been made here. However, I believe that we are satisfied with the arrangements that we have set out. They are not entirely unfamiliar. Furthermore, we believe that the appeal process provided for is simple enough to be comprehensible and easily understood in those circumstances.
Perhaps all noble Lords will think about what I have said in response to their earlier comments and study the Hansard report. No doubt they shall wish to reflect carefully on the Government's position. On that basis, I urge the noble Lord to withdraw his amendment.
Lord Hylton: I am grateful to the Minister for saying that he will consider the point just raised by the noble Lord, Lord Lester of Herne Hill. In the course of that consideration, will he reflect on the need for the Secretary of State to publicise any decision which has immediate effect so that people in the wider society do not unwittingly commit acts that become offences, but which previously were not offences?
The noble Lord said: I beg to move Amendment No. 32 although I do not wish to press it tonight. The amendment has been tabled in order to ask the Minister if the Scottish Parliament has been consulted here. I am aware that matters of anti-terrorism and the other principal matters contained in this Bill are reserved matters for the Westminster Parliament and the Government of the United Kingdom. However, these proposals have effects on the Scottish judicial system, which is a devolved matter. It therefore seems proper for the Scottish Parliament, not only the Scottish Executive, to be consulted about these matters. I have tabled the amendments in order to ask whether that is so.
Lord Bach: The answer to the noble Lord's question is that the Scottish Executive has been consulted, but not the Scottish Parliament. I shall go into a little more detail if the noble Lord requires me to do so. This is obviously a probing amendment and we appreciate it.
These amendments would have the effect of removing from the Bill the application to Scotland of the appeal right in Clause 7, and the provisions for forfeiture and restraint orders in Schedule 4. We have assumed that these are probing amendments; otherwise they would be wrecking amendments. They must be one or the other.
As noble Lords are aware, terrorism is a matter reserved to the Westminster Parliament, under Head B8 of Schedule 5 to the Scotland Act 1998. To deal first with Amendment No. 32, subsection (1) of Clause 8 makes the necessary applications to Scotland of the provisions of Clause 7. Those provisions are concerned with, as subsection (1) of Clause 7 states, a situation where, first, an appeal under Clause 5 to the proscribed organisations appeal commission against a refusal to de-proscribe an organisation has been allowed by the commission; secondly, an order has been made under Clause 3(3) to remove the name of the organisation from the list in Schedule 2; thirdly, a person has been convicted of an offence in respect of the organisation under various clauses of the Bill; and,
These are all matters concerned with the subject matter of terrorism. They are not concerned in any way with the general principles of Scots criminal law. In fact, subsection (1) of Clause 8 is an example of the provision referred to in Section 29(4) of the Scotland Act; that is, it is a provision which relates to the reserved matter of terrorism; it modifies Scots criminal law in relation to that reserved matter of terrorism and should therefore be treated itself as relating to the reserved matter of terrorism.
In all respects, subsection (1) of Clause 8 is properly included in the Bill as relating exclusively to the reserved matter of terrorism. To remove that subsection would be to deny persons in Scotland essential elements of the commission remedy which will be available in England, Wales and Northern Ireland.
Turning to Amendment No. 42, under Clause 23 the Scottish court which convicts a person of an offence under any of Clauses 15 to 18 may make a forfeiture order--that is an order whereby money or other property of the offender is ordered by the court to be forfeited, where that money or property was in the possession or under the control of the offender at the time of the offence. Part II of Schedule 4 sets out in detail for Scotland how forfeiture orders are to work in general and in particular circumstances.
Part II of Schedule 4 therefore contains detailed provision for the purposes of Clause 23, which in turn depends on a person having been convicted under any of Clauses 15 to 18 of the Bill. I shall not go through each of the offences set out in the four clauses.
It is clear that each of the offences to which Clause 23 and Schedule 4 apply is an offence relating to terrorism. A glance at the Bill shows that. Under the section of the Scotland Act to which I have referred, terrorism is, of course, reserved to this Parliament. It is therefore proper that provisions for Scotland comparable to the provisions being made for England, Wales and Northern Ireland elsewhere in Schedule 4 to the Bill should be included the Bill.
It would not be within the competence of the Parliament at Holyrood to deal with this matter, and I am sure that noble Lords would not wish that no provision were made for Scotland in respect of forfeiture orders.
Lord Cope of Berkeley: The Minister has indeed given a full answer, but that does not mean to say that it is satisfactory. I fully understand that terrorism is a reserved matter. However, these provisions lay down time limits in various cases in the Scottish courts, and the judicial system is a devolved matter. However, I do not propose to press the matter at this stage. I beg leave to withdraw the amendment.
Lord Avebury: I should like to reinforce what was said earlier about the case that I outlined of an order being made by the Secretary of State under Clause 3 and treated as a matter of urgency as a result of the provisions in Clause 122(4).
Perhaps I may illustrate the point. You are a member of an organisation that has functioned perfectly legally in the United Kingdom up until this point. At 10 o'clock one morning the Secretary of State makes an order which he deems to be urgent proscribing that organisation. You are then committing an offence if you carry out any of the acts mentioned in Clauses 14 to 23. Your only defence, under Clause 11, is if you can prove that you became a member of the organisation at a time when it was not proscribed. But, in addition, you have to prove that you took no part in the activities of the organisation at the time when it was proscribed. So any act that you have committed between the moment when the Secretary of State made the order and your coming to the knowledge of it by reason of the Secretary of State within 40 days having laid an order before Parliament, is liable to prosecution; and if you are convicted you may be sentenced to prison for 10 years.
It is a very serious matter to prosecute someone for an act that he did not know was criminal at the time he was committing it and to make him liable to a sentence of imprisonment. I really do think that the Minister has not given sufficient thought to the implications of Clause 122(4) and its repercussions with reference to earlier clauses in the Bill, particularly Clause 11, which provides for extremely serious penalties to be imposed on a person for being a member of an organisation and taking any part whatsoever in its activities. Is that provision really what the Committee wants in the Bill?
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