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Counterterrorism and Security

Volume 720: debated on Tuesday 13 July 2010


My Lords, with the leave of the House I will repeat a Statement made by my right honourable friend the Secretary of State for the Home Department on the review of counterterrorism and security powers.

“With permission, Mr Speaker, I would like to make a Statement on the review of counterterrorism and security powers. As I have said to the House before, the first duty of Government is to protect the public—but that duty must never be used as a reason to ride roughshod over civil liberties. And that is what the last Government did on too many occasions. This Government are different. We have already introduced legislation to get rid of ID cards once and for all. We have already declared our intention to bring forward a freedom Bill later this year. Just last week, I announced interim restrictions on the use of stop and search powers under Section 44 of the Terrorism Act 2000.

Today, as promised in the coalition agreement, I am announcing an urgent review of counterterrorism and security powers. The review will consider six key powers. They are: control orders; Section 44 stop and search powers and the use of terrorism legislation in relation to photography; the use of the Regulation of Investigatory Powers Act 2000 by local authorities and access to communications data more generally; extending the use of deportations with assurances in a manner that is consistent with our legal and human rights obligations; measures to deal with organisations that promote hatred or violence; and the detention of terrorist suspects before charge.

These are the most controversial and sensitive powers. In particular, the issue of pre-charge detention has been the subject of considerable debate in this House and tomorrow we will consider whether to renew the current detention limit for a further six months. This will provide us with sufficient time to look carefully at pre-charge detention in the review and to explore how we can reduce the period of detention below 28 days. The review will also help to inform what additional safeguards are needed in the proposed asset freezing Bill which the Treasury will introduce shortly.

The Government's work on the use of intercept as evidence in court and the modernisation of our interception capabilities will be done separately and will not form part of this review. The review will be conducted by the Home Office with the full involvement of the police, the security and intelligence agencies and other government departments including those in Scotland and Northern Ireland. I want the review to be conducted as openly and transparently as possible. I have asked Liberty to contribute to this review and it has said that it will be delighted to do so. I am keen to involve other civil liberty and community organisations. As with other reviews, I would urge anyone with an interest to submit their views to the Home Office.

To ensure independent oversight of the review, I have asked the noble Lord, Lord Macdonald of River Glaven, a former Director of Public Prosecutions, now a Member of the other place, to make sure that the work is properly conducted, that all the relevant options have been considered and that the recommendations of the review are not only fair but seen to be fair. This role is distinct from the excellent work that is already being undertaken by the noble Lord, Lord Carlile of Berriew QC, in his statutory role as independent reviewer of terrorism legislation. The proposals made by the noble Lord, Lord Carlile will be fully considered as part of the review and I know that he welcomes the additional independent perspective that Lord Macdonald will provide on these issues. Any legislative amendments as a result of that review will of course be subject to review by the independent reviewer of terrorism legislation.

I have ordered that the review should be completed as quickly as possible, because it is important that the police and the security and intelligence agencies are able to do their vital work with certainty and confidence. So I will report back to Parliament on the outcome of the review after the Summer Recess.

Before I finish, I want to make one thing absolutely clear. In correcting the mistakes of the previous Government, we are doing just that. We are not criticising or castigating members of the police or the security and intelligence services. They do their work with bravery, patriotism and a strong sense of duty—and I know the whole House will want to join me in paying tribute to them.

The review will enable this Government to put right the failures of the last, and in so doing, restore the ancient civil liberties that should be synonymous with the name of our country. I commend this Statement to the House”.

My Lords, that concludes the Statement.

My Lords, I am grateful to the noble Baroness for repeating the Statement made by the Home Secretary in another place. It is worth recalling that the terrorist legislation passed in 2006 had all-party support, driven by the widest understanding that the only response to al-Qaeda, and to protect our people from a potential repeat of the horrors of the 7/7 tragedy, was to counter the threat and defeat it. The all-party support was buttressed by an endeavour on the part of the Government at the time to ensure the widest consensus and to consult extensively to that end.

Five years later, the threat has not diminished, as the Prime Minister reminded Parliament and the country in his Statement on 6 July. This leads to my first and most important question. Will the Minister confirm that this review is not being held to scale down the powers needed to address the severe security threat that we still face? To that end, will she give her latest estimate of the number of terror suspects engaged in complex plots? Will she say how many such plots have been disrupted since 7/7? Will she ensure that the same spirit and degree of consensus-seeking takes place in reviewing anti-terrorist legislation that characterised the approach to the 2006 terrorism legislation? Will the Government publish the terms of reference of the review, and if so, when? Also, will the review encompass the measures announced last week in respect of Section 44? All noble Lords will agree that the first duty of government is to protect the public. However, I am sure they will also agree that that must be balanced with the protection of civil liberties.

That leads me to a final question and a comment on what now seems to be a mantra in government: to blame everything, including the weather, on the previous Government. I think that there is a slightly partisan element in the penultimate paragraph of the Home Secretary’s Statement. She lays great stress on the “mistakes of the last Government”, while warmly commending members of the police, security and intelligence services on their “bravery, patriotism and a strong sense of duty”. I strongly endorse that tribute, as will all noble Lords. However, I should like to ask a question which no one in government is better qualified to answer than the noble Baroness, Lady Neville-Jones. Does she agree that much of the strengthening of anti-terrorism legislation was in direct response to the request of those same brave and patriotic police, security and intelligence services and their need for better weapons and resources to tackle those who would perpetuate another 7/7 or perhaps something worse? Alternatively, does she believe that it was thrust upon unwilling police, security and intelligence services? Accordingly, can she assure the House that the weapons and resources available will not be diminished as a result of the proposed review?

My Lords, I certainly join the noble Lord in his view that there is wide agreement in this House and between the aisles on the need for appropriate legislation to ensure our security. I do not think that anything divides us on that. He asked a number of fairly specific questions and I shall do my best to answer them. The first practical one was whether the review will be conducted in a way that does not lower our security. That is absolutely the case. With my title and obligations, it is one of my tasks to ensure that that does not happen.

I was asked when the terms of reference will be published. We are now conducting a certain amount of internal work which should certainly enable us to publish them in time for the start of the consultation. As we indicated, the timetable is fairly short, and we want the review to be carried out rapidly for two reasons. First, we believe that the changes can and should be made, and that they are not so complicated that a very long time is required for them; and, secondly, a degree of uncertainty in the legislation, particularly in relation to Section 44, needs to be clarified. Therefore, there are good reasons for not delaying the timetable that the Home Secretary has set out. As I said, we will publish the terms of reference and make sure that bodies with a strong interest are able to look at them and put forward their views. We will find some practical means, such as a website, to ensure that people are able to submit those views.

As I said, the review will cover the rather anomalous situation that has arisen in relation to Section 44 so that there is clarity for the police in going forward. I take the noble Lord’s point that many of the measures put in place earlier were in direct response to the security situation that had arisen. It is fair to say that the Terrorism Act 2000, which in good part was based on previous Conservative Party legislation in relation to Northern Ireland and was built partly on the report of the noble and learned Lord, Lord Lloyd, was indeed consensus legislation. Since then, I think that there have been divergences between us, and it is those that we want to try to correct.

There was quite a lot of controversy over the length of pre-charge detention. That, frankly, has not been stilled by the legislation that we now have in place and it is clearly one of the main reasons for wanting this review to take place now. In one or two other areas, it is not so much a question of what is on the statute book—although I think that clarity on the statute book is government’s responsibility—as how it has been used. Therefore, if we have to alter legislation, we want to bring clarity to exactly what people are permitted to do. This is an example in the area, for instance, of the Regulation of Investigatory Powers Act and the powers of local authorities—the level of authority that they will need to obtain in order to be able to operate their rights under the Act, and indeed, as I say, to prevent abuse of Section 44.

So it is partly a question of how much we change the framework of the legislation, and part of it is to try to control and prevent further abuse. Also on control orders, the courts have shown that they are unhappy about the breadth of some of the legislation. We want to try and ensure that if we decide in the end that those control orders have to remain as part of our panoply of powers, they are used in a manner which is proportionate and in accordance with our obligations under the Human Rights Act.

My Lords, I welcome every word of this important Statement, especially the appointment of my noble friend Lord Macdonald to oversee the review. Am I right that independent oversight by such a person is a novel idea for a Home Office review? Whether I am right or not, I welcome the idea most warmly.

Among the six matters which are to be reviewed we will each have our own pecking order. The most harmful in my view have been control orders, 28 days’ detention without trial and Section 44, in that order.

Does the Minister recall the pledge given by the previous Government after an all-night sitting in March 2005 that they would bring back control orders for a comprehensive review within a year? I remind the noble Lord, Lord Brett, that although there was a degree of consensus in relation to the 2006 Act which he mentioned, there was certainly no consensus in relation to the 2005 Act. If there had been, there would have been no need for an all-night sitting.

Does the Minister share my relief that that pledge given back in 2005 is now being redeemed? Does she also recall another pledge that the whole mass of terrorist legislation which now disfigures our statute book would be consolidated? This is of course nothing like as urgent as the other matters which have been mentioned, but I hope the Minister can say that this idea has not been forgotten either.

My Lords, I do not know the answer to the question of whether this is a novel idea. I certainly think it is a very good one, and obviously the object of having the involvement of the noble Lord, Lord Macdonald, is to ensure, and also to be able to give assurance to the outside world, that the review has been thorough and looked at all the options, and that it has been impartial and provides the best balance between our security needs and our rights as citizens as we can provide.

I share the noble and learned Lord’s relief that we are able now to redeem the pledge on the review of control orders. This has been overdue and that is why we regard it as an urgent thing to get on with.

On the question of consolidation of terrorism legislation, that is one of the things we would like to do. Noble Lords will be aware of the volume of urgent things that need to be on the statute book so I cannot promise that it is going to be an early piece of legislation. What is more, if we are going to do it we should do it thoroughly and well. In that area, haste will be the enemy of good work. I would rather produce a decent piece of legislation in due course than hurry at it. Finally, I hope that over time we are going to be able to reduce this panoply of emergency legislation. In a sense, it is no part of a democracy to have to continue with this sort of legislation for a moment longer than we need.

We still face a persistent and serious threat—and I failed to answer the noble Lord’s question about terrorist plots. I hope that noble Lords will forgive me for being unable to answer it today. I will be in a better position to do so next week when we debate the legislation on pre-charge detention. Indeed, I will be happy to do so then.

My Lords, I echo the words of the noble and learned Lord, Lord Lloyd of Berwick. I agree with everything he said. I, too, welcome the review. I could speak at length about all six items enumerated in the Statement but perhaps I may pick up only one—item six, on the detention of terrorist subjects before charge. Will the Minister assure your Lordships' House that due weight will be given to the views and experience of the current DPP? I ask that question because when, like others, I was closely involved in the attempt to extend detention before charge from 28 days to 42 days, the then DPP and the two immediate successors said that they had not needed powers to go beyond 28 days. Notwithstanding the tremendously high standard of work carried out by the police and security services, it occurs to me that of all the bodies on this stage, the DPP is most particularly concerned with the adequacy of evidence and whether charges should be preferred.

Furthermore, the Minister commented on the use of intercept evidence, which will not form part of this review but will be looked at separately. Will she assure the House that that review will not be deflected? My views and those of other Members of the House have been outlined on a number of occasions, and a body of opinion says that it should be looked at as a matter of urgency and legislation changed to allow that form of evidence to be admitted.

My Lords, on the noble Lord’s first point, I can guarantee that we will be giving due weight to the views of the current DPP. I entirely agree with the centrality of those views. As I said, we will give weight to all views that are put to us.

As regards intercept evidence, I entirely take the point that it must not be left to moulder for ever. The Chilcot committee is still doing its work and we believe that it ought to be allowed to finish it. The noble Lord also knows that there are a number of issues that are not entirely straightforward. I am not in any way suggesting that we will not continue with this work, but it is because we do not believe that we can put it on a relatively fast track that we do not want to include it in this particular package. However, we will certainly be bringing forward our conclusions and, if necessary, further proposals.

My Lords, will the Minister develop a couple of points? The fourth of the six powers to be reviewed is that of extending the use of deportations with assurances. Is it envisaged that the use is to be extended to different categories of people in this country, or is the power to be extended to different countries? I have had experience of dealing with that in the past few years, and I know that however keen we are to see people leaving our shores, those receiving them are not always thrilled to bits about the idea of having them back. Can the Minister tell us anything more on that point?

My second point is one of clarification not about the role of the noble Lord, Lord Macdonald of River Glaven, but about his authority. Is this review to be a Home Office review under the name of the Home Secretary, or is it to be a review to which the noble Lord, Lord Macdonald, will be giving his name? If it is the latter, can the Minister tell us what the position of the Home Office will be in regard to the costs of the review? The Statement clearly indicates that it is the first duty of government to protect the public, and we would all agree with that. Therefore, it must surely have first call on public finances. If the review comes up with suggestions which are a cost to the public purse, can the Minister assure us that it will be readily met by the Home Office?

On the noble Baroness's first point about extending deportation with assurances, how right she is: that is very difficult. Her point about our desire to deport and others’ reluctance to receive is absolutely right. Extension should be understood primarily in the area of, nevertheless, trying to extend the policy to other countries. We have no present intention to extend the categories. In many respects, this is a highly practical and political problem; it is not, frankly, a legislative problem. We felt that, as this is a matter of such public concern, we need to try to make progress. The Foreign Office is actively engaged with Governments on the issue. I cannot promise how much we will have to report. I cannot say that I am confident that we will have made a great deal of early progress, but we take this issue seriously and we want to try to make it effective. It may require more action on a broader front to make the policy effective and, at the same time, consistent with our obligations.

On the noble Baroness’s second point about the auspices of the review, this is a Home Office review. This review is not being let out to someone else. The reason for asking the noble Lord, Lord Macdonald, to be involved is to provide assurance that a Home Office review of its own legislation has injected into it a degree of standing back and impartiality, to ask whether it makes sense and to help those who, after all, have drafted previous legislation themselves to stand back from what they have done previously. It is to open a window and let in a bit of fresh air—that is the spirit of it—and to create a certain amount of challenge in the system, such that we can be satisfied that when we come up with something, it passes various tests.

I welcome the announcement of the review by the Minister. I suppose that I should declare an interest, in that I was head of the Security Service from 2002 to 2007, when much of this legislation went through. I also welcome her kind remarks about my former colleagues. However, I would like to correct the impression that all legislation was in response to requests by the security and intelligence services—or, indeed, by the police. That is completely untrue. There were certainly things that we sought and asked for but, as I have said in this House before, control orders, for example, were not one of them. The previous Government rightly made their own decision on what to legislate for. They were not dictated to or responding to endless requests from us. They took their own view on what it was appropriate to legislate for. I make that correction.

The House would agree that the noble Baroness is quite right; the Government in office must take responsibility for the legislation that they put forward.

My Lords, I welcome the Statement very much. I think I heard the Minister say that the Home Office will be consulting on the terms of reference, not just once the terms of reference have been set. That would be very welcome, because so many of those who are concerned with these issues may want to have an input at that early stage. With regard to the terms of reference, I ask about item 4, which may remain the fourth of six or become the fourth of more items. The term is,

“extending the use of deportations with assurances”,

which suggests that the Home Secretary already has a view that they should be extended. Everything else is couched in more neutral language, and I wonder whether the Minister would comment on that.

With regard to intercept as evidence, can the noble Baroness assure the House that the noble Lord, Lord Macdonald, and those conducting the review will be able to talk to the team dealing with intercept as evidence, because even if it is not included in the review, there must be information that could usefully be shared?

I hope that I did not mislead the noble Baroness when I talked about the terms of reference. We will publish them, but we do not intend to consult on them per se. I hope also that I made it clear that we will have a very open consultation process that will include not only consulting in an organised way with various interested parties, but offering the opportunity through a website for a wider audience to offer its views. I hope that the terms of reference will not themselves be a constraint on the way in which the six topics are dealt with.

I will say one thing in defence of not consulting on the terms of reference. We want to move on this fairly fast, so there are limits, if I may say, to the number of stages to which we should apply the consultation process. I beg the indulgence of the House in suggesting that we should leave it as an extensive consultation process that will follow, having set the terms of reference.

On the question of the extension of deportation with assurances, I do not have a great deal to add to an earlier answer. We see being able to extend the process of DWA to other countries as useful and in the public interest. The reason is a practical one. We find that there is an increasing number of nationalities where the need to deport is actually an operational requirement. We want to put in place circumstances in which we can do that in a manner compatible with our obligations.

Finally, the noble Baroness asked about the relevance of intercept as evidence. She is quite right to say that various aspects are relevant to the subjects that we have under discussion, and those involved in the review will indeed have the necessary access.

My Lords, the Joint Committee on Human Rights has done a great deal of work on this issue. Can the noble Baroness assure the House that its work will be taken into account in the review? Does she agree that terrorists operate when there is substantial alienation or, at least, ambivalence among people about how far they support the prevailing laws? In that context, is it not important for the review at least to take a look at how immigration, asylum and border controls are operated, to ensure that these are being done at all times in ways that win people’s heart and minds rather than actually leading to alienation? Finally, on deportations with assurances, I support some of the anxieties that have been expressed and ask simply whether the review can look closely at how much credence in the long term can be based on assurances, particularly with countries in which the use of torture is systematic in their administration of so-called justice?

The noble Lord is right that the Joint Committee on Human Rights has done extraordinarily valuable work, and I give him an absolute assurance that it will be taken into account in this review. On the question of whether there is support in the country for this body of prevailing law, one reason we want to look at it is precisely because we know that there is indeed unease—but not, I think, unease which is particularly to be found in any single quarter; it is more general than that. Obviously there are related issues and the question in all such reviews is about where you stop. One area that we regard as related, but which we are going to take separately although in current time, is how we pursue one of the four strands of CONTEST, that of the Prevent strategy. Our aim is not to abolish it, but we hope to make it more effective or, if I may put it this way, a bit more fit for purpose because we regard it as a flanking policy which affects the acceptability of some of this legislation, particularly among ethnic and minority communities.

Finally, the noble Lord raised the issue of deportation with assurances. The Government know that this is a difficult area and that what is written on paper is not always necessarily the reality. We also know that if we do not attempt to start a dialogue with countries and get assurances about the conditions into which people are going to be sent back and that they will be safe, we reduce the possibility of introducing such a policy. We have to have the capability, over time, of removing from this country people who have been convicted of very serious offences, and it is into that category that these people fall. We want to pursue the policy, but we do so with our eyes wide open.