Clause 2 : Imposition of terrorism prevention and investigation measures.
1: Clause 2, page 1, line 6, at beginning insert “The court may on the application of”
My Lords, we are all agreed that the measures which can be imposed by the Home Secretary under Clause 2 could place serious intrusions on personal freedom. On the second day in Committee the noble Lord, Lord Rosser, referred to the “profound impact” on the liberty of the individual of these exceptional measures. He was right. He might perhaps have added that these restrictions are by no means temporary. Of the 12 individuals currently subject to control orders, one is already in his fifth year of being subject to a control order and four have already been subject to control orders for between two and four years. It is my case that restrictions of that severity should not be imposed by the Home Secretary—more particularly when the individuals concerned have not been charged with or convicted of any offence—and it is right and proper that they should be imposed by the courts. That is the purpose of the first amendment. There are a number of subsequent amendments dealing with the same point, but this debate will turn on the first amendment, and the position is very simple.
The amendment has already received strong support from the Joint Committee on Human Rights. That report came too late to be considered in Committee by the noble Lord, Lord Henley, as fully as he would have wished. As the report presumably contains the Government’s best case for leaving Clause 2 as it stands, I shall deal with it in some detail. In their original response to the concerns of the Joint Committee on Human Rights, the Government relied upon,
“a well-established principle across our legal system of imposing”,
“to protect the public from criminal behaviour”.
They cited numerous examples of such preventive orders: serious crime prevention orders, anti-social behaviour orders, risk of sexual harm orders and many others of the same kind. In every one of those instances, the order is made by the court, as it should be, and not by the Executive. That particular principle, although certainly well established, does not help the Government in any way in relation to Clause 2 and this amendment; indeed, it favours the amendment because it illustrates the way in which preventive orders are habitually made.
In their more recent response, the Government rely upon a different well established principle, that in national security cases it is the Home Secretary who makes the decision and not the court. What is the evidence of this other, and more restricted, principle? With one exception, which I will of course come to, the only example given by the Government in their response was the power of the Home Secretary to deport individuals on national security grounds. That was the power to which the noble Lord, Lord Carlile, referred in Committee. I am sorry not to see him in his place today. When I asked him whether he would accept that there is a distinction between deporting foreigners and deporting British citizens, he described the distinction I was seeking to make as “casuistic”, so I feel I had better make that distinction good.
The power to deport is contained in Section 3(5) of the Immigration Act 1971, an old and very familiar provision. It specifically excludes deportation of British subjects. One might ask: how could the Home Secretary claim the power to deport British subjects? Where would she deport them to? The same applies to the other example given by the noble Lord, Lord Carlile, that the Home Secretary has the power of deprivation of citizenship. That power, which is contained in Section 20 of the British Nationality Act 1948, applies only to those who have obtained British citizenship by fraud and other similar such cases. It has never applied—and could never have applied—to British citizens by birth. Therefore, we can forget about deportation orders and deprivation of citizenship orders made by the Home Secretary as being a valid precedent. I am somewhat surprised that that was even mentioned in the recent government response to the Joint Committee on Human Rights. That perhaps shows the extent to which the Government have had to scrape the barrel to find any precedent at all for Clause 2 of the Bill.
That leaves only a single example of this so-called well established principle: the Terrorist Asset-Freezing etc. Act, which we passed only last year. Whatever else one might say about the principle, it can certainly not be described as well established. The House will remember that that Act enables a Treasury Minister to impose a freezing order on terrorist assets within the jurisdiction. I moved an amendment similar to—though not exactly the same as—the amendment that I have moved today because it was easy to foresee that, if the Terrorist Asset-Freezing etc. Act was passed, the argument would be used again when we reached control orders. So, of course, it has proved. I did not press the amendment on that occasion, as an earlier amendment that I had moved received an enormous defeat. Yet I received some comfort from what the noble Lord, Lord Sassoon, who was in charge of that Act, said in the course of proceedings. He said:
“the Government do not believe that the courts should have the same role in asset freezing”,
as they do in control orders,
“because the circumstances are clearly different. Asset freezes interfere with property rights but they do not impact on human rights to the same extent as control orders”.—[Official Report, 25/10/10; col. 1052.]
I say amen to that. Yet the Terrorist Asset-Freezing etc. Act is the only precedent which the Government have so far dug up. If I am right that it is the only precedent, we seem to have come a long way from those lines of Tennyson that I am sure your Lordships will remember. He described England as:
“A land of settled government …
Where Freedom broadens slowly down,
From precedent to precedent”.
Next, I must touch on the case of MB, which the noble Lord relied on in Committee. He quoted a sentence to the effect that,
“the Home Secretary is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect”.
That quotation is repeated again in the recent Government response. On the face of it, that might seem to add some weight to the Government’s case, but in truth the quotation has no relevance at all to the issue that we now discuss. It comes from a part of the judgment of the Court of Appeal in that case where the court dealt with policy questions such as those we find in Clauses 3(3) and 3(4) of the present Bill—that is, conditions C and D, which have to be satisfied before an order can be made. It has no relevance whatever to condition A, which is the critical condition, of whether there is evidence that the man has been involved in terrorist activity. The court had already dealt with that point higher up on the very same page. It decided that condition A, the critical condition, was a pure question of fact for the court. I cannot imagine any court deciding otherwise, but that is in fact what the court decided. I hope that the reading, which I had suggested is the correct reading of MB, will be in due course accepted by the Government. If so, MB, far from being the case that helps the Government, is as strong an authority as one could want in favour of the amendment.
Finally, there is Section 4 of the Prevention of Terrorism Act 2005, the Act which we are repealing. It provides that in the case of derogation orders the application—not the order—is made by the Secretary of State, and the order is made by the court. To answer the point made by the noble Lord, Lord Carlile, that Section 4 applies only to derogation orders, of course it does. Section 4 is the existing law and if we were to derogate now as we did in 2001, Section 4 would be the applicable provision. Therefore, when it is said that it is not appropriate for the court to make the order when the safety of the nation is at stake, that simply does not tie up with the express provisions of Section 4. If it is appropriate for the court to make an order in a derogation case, why is it not appropriate here? If it is appropriate for the court to make an order when the restrictions are more oppressive—as they are in the case of a derogation order—why is it not appropriate when the restrictions are less oppressive? That simply does not make sense. I suggest that Section 4 of the 2005 Act is the complete answer to those who say that the Home Secretary should make the order because he is responsible for national security or because he is answerable to Parliament or because he has a broader knowledge of threats—all tired arguments that have been used over and over again. How can those arguments survive the express words of Section 4 of the 2005 Act, which provides specifically for the order to be made by the High Court and not the Secretary of State, when it could be said that the security of the state is most at risk?
I end on a personal note. I have been involved with matters of national security for many years, since I first became chairman of the Security Commission 25 years ago. I am therefore familiar with the sort of considerations which actuate Governments in these matters, but I cannot think of a single good reason why this order under Clause 2 should not be made by the court. If it is extremely urgent, then the order will be made ex parte by the judge and issued in the ordinary way pending the full hearing under Clause 9. I simply cannot see the difficulty in that. I cannot see the advantage of the order being made by the Secretary of State but I can see many disadvantages. I beg to move.
I am sorry that I did not give the noble and learned Lord leave of this question. I am entirely in sympathy with what he said in moving the amendment, but can he tell the House what happens if, as his amendment says, the court rather than the Secretary of State may,
“impose specified terrorism prevention and investigation measures”,
and if the court has to consider whether conditions A to C are met? Condition A reads that,
“the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity”.
Does that then mean that the court has to make the order, but it has to consider whether the Secretary of State reasonably believes—or should there ideally be a removal of “Secretary of State” in Clause 3(1) and replacement by “the court”? I hope that I have made myself reasonably clear.
The noble Lord has been very clear. I fully understand—and that is exactly what is provided in a subsequent amendment. I think that it is Amendment 3. You have to read Amendment 1 with an amendment that strikes out the words,
“the Secretary of State reasonably believes”,
in Clause 3(1). So it does tie up.
My Lords, I have supported the statements of the noble and learned Lord, Lord Lloyd of Berwick, at Second Reading and in Committee. I will take the same position yet again on Report.
I agree that terrorism is a great threat to the United Kingdom and that steps must be taken to prevent it. I agree that those steps may include civil penalties that restrict the activities of those who are probably involved in terrorism. But there are conditions that should be applied to those requirements and included in this Bill. The most important of those conditions is that the rule of law must be applied and observed. A fundamental rule of the rule of law is that penalties must be imposed only by people who are independent—either judges or, in the case of serious criminal proceedings, by a jury. In particular, the prosecutor should not also be the judge. Under this Bill, that is exactly what happens. The Secretary of State is both the prosecutor and the judge. That is doubly objectionable, not only because the Secretary of State imposes the penalty but because the defendant cannot give his own story in defence of the prosecution being brought against him.
It is true that under Clause 6 the court must give permission to the Secretary of State to impose measures that she has decided to apply. But as is stated by Clause 6(6), the court is applying a judicial review, which is not the same thing as a trial of the evidence. This means that the court cannot, in effect, question evidence supplied by the Secretary of State; it must refuse permission to impose the measures that the Secretary of State proposes, if, as is said in Clause 6(3),
“relevant decisions of the Secretary of State are obviously flawed”.
But what on earth does that mean? To whom must the flaw be obvious? I question the whole concept of something being obviously flawed, when more than one person may well be applied to in deciding whether the flaw is obvious or not. As I said, to whom must the flaw be obvious? Can counsel for a defendant argue that the flaws are obvious? I think probably not but one does not know. The fact is that the court has only a limited power over the imposition proposed by the Secretary of State. It is pretty clear that the court has no power to examine the facts of the case as presented by the Secretary of State.
This simply does not satisfy the rule of law. The rule of law is not wholly inflexible. We accept that, in certain circumstances, it is necessary in the interest of the nation to exclude relevant evidence from the presence of the defendant. But there is no justification for denying the court the right to consider the adequacy of that evidence. If it deals with this matter simply by a review process, that cannot happen.
I refer again to the report of the Joint Committee on Human Rights, published on 19 October. Paragraph 1.6 of the report, which I quoted in Committee on that date, states that,
“the well-established principle is that executive restrictions on liberty are such a radical departure from our common law tradition that they always require prior judicial authorisation after proper legal process. It is for the Government to justify this Bill’s departure from that fundamental principle”.
That is a statement with which I entirely agree and which I think those who were responsible for drafting this Bill should have taken into account. It does nothing to prevent procedures being taken up against the person who is understood to be involved in terrorism. It does not make the matter seriously more difficult for the Government. I do not think it does at all. The Secretary of State will clearly have come to a view that this person is liable to be prosecuted and made the subject of an order. I believe it is really a matter for the Secretary of State not to impose the measure herself but to present the evidence that she has to the member of the court who is in charge of this. It is for the member, or the members of the court, to take this up.
I will add one reason which might actually encourage the Government to accept the amendments. Having the judgment made by the court on the basis of an application by the Secretary of State—if the judgment is actually made by the court in all respects—would make the situation simpler or cheaper. In particular, since the court would not need to give itself permission to make the order which it wishes to make, the need for a directions hearing under Clause 8 would simply disappear. It would not only be a more justified and proper treatment of the evidence, it would also make it a simpler system for the Government.
My Lords, I have added my name to these amendments and, given the speeches of the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Goodhart, I can be relatively brief. I certainly will not challenge them in terms of legal expertise, having ended my legal career with a first degree in 1969, but I feel strongly on this issue because of my own experience as a parliamentarian. I had the honour to be a member of the Privy Council committee chaired by the noble Lord, Lord Newton of Braintree, who I am glad to see in his place, which reviewed the provisions of the Anti-terrorism, Crime and Security Act 2001, particularly Part 4 of that Act, which was considered by us and by many others to be unsatisfactory. The Government paid little heed to the results of that committee’s deliberations until the courts made them do so. We ended up with the 2005 Act, in which I played some part on the duration of control orders, an issue to which we will return, mutatis mutandis, later in today’s Report stage.
I came out of that experience, particularly the experience of the Privy Council review committee, with two clear views. One was that there was a problem that needed to be addressed and that there was some justification for going beyond the normal criminal legal procedures in terms of the threat of terrorism. Some of that was in terms of creating new offences—we saw the offence of “acts preparatory to terrorism” that came out of that review, which I believe has been helpful—but even that was not enough and there was the need, as I think the noble Lord, Lord Goodhart, has just said, for measures that were extraordinary. I do not need convincing on that score.
The other thing that became clear to me was that we should, as legislators, try to make those extraordinary measures deviate as little as humanly possible from the fundamental principles that we normally apply, through the criminal justice system and the whole of our legal processes, to the deprivation of liberty and to constraints upon movement and actions—the fundamental human rights of those living within our country, particularly our citizens. I look at the provisions of the Bill, which I believe are an improvement on control orders—limited but an improvement—and ask myself whether we are deviating as little as humanly possible.
I believe there would be a great improvement, without a balanced increase in risk to security, if we transferred that initial decision on the imposition of such measures from the Secretary of State—the Home Secretary—to the courts. That is the fundamental and simple reason why I support these measures. I was emboldened to do so partly because of the comments made by the chairman of the Privy Council committee, the noble Lord, Lord Newton of Braintree, as I always pay great respect to those who have been my chairs on committees. Perhaps we will hear from him later. However, I remember that, when we were discussing the 2005 Act and talking about analogous issues and the role of the judiciary, one of my colleagues who was not in sympathy with the position that I was taking turned on me and asked, “What’s so special about the judges?”, to which I replied, “They’re not the politicians”. That fundamentally remains my position today, and it is why I added my name and give my support to this group of amendments.
My Lords, on this occasion I have not actually been tempted. I had hoped to come in anyway, although I was a little late getting here, and I apologise for that. I would like to say to the noble Baroness, Lady Hayman, that I much appreciate the remarks she has just made. I well remember the experience we had together and the hugely valuable contribution that she made to that committee. I can also say that I share her views on absolutely everything that she has said, so I will not speak at great length. I agree also with what I have heard since I came into the Chamber. The Minister ought to know—if he was in any doubt—that there was not complete unanimity on this point on the Benches immediately behind him, even though the voices so far have come from elsewhere.
The arguments adduced on the previous occasion in Committee to which the noble Baroness has referred were, frankly, unbelievably thin. I do not blame the Minister for that—I suspect that they are inherently thin, and unless they are a lot thicker this evening then I will find myself in some difficulty, and he needs to know that.
My Lords, I support these amendments. I declare an interest as the independent reviewer of the counterterrorism review. I should also like to pay tribute to the noble and learned Lord, Lord Lloyd, for the many hours that he has devoted to these issues over the years.
Why should it be the court rather than the Home Secretary? In my brief analysis, there are four reasons. First, on any analysis, the measures in this Bill are an exception to our normal rule-of-law principles for reasons set out very clearly by my noble friend Lord Goodhart. Secondly, they constitute a very serious potential stigmatisation of those subjected to them: a declaration of belief on the part of the state that the individual is involved in acts of terrorism. In my estimation it can hardly get much worse. Of course, the orders are anonymised, but family, friends and no doubt, the wider community, quickly become aware of the fact. Thirdly, our courts are very well used to adjudicating issues of national security, and they do it time and time again—for example, every time a question of public interest immunity arises, and in many other situations too. I am not aware of any credible argument that they do so incompetently. They may of course embarrass the Government and one or more of the agencies from time to time, but that is an entirely different point. Fourthly, and finally, our courts are independent, and they therefore bring the vigour of their independence to their decision making. In this area, that becomes a question of important public confidence.
My analysis is that it is the exceptionality of these measures, their severity, and the damage that they may do to their subject—who after all has heard no more than the gist of the case against him, quite exceptionally—that demands that they should be orders of the court rather than punitive and potentially damning directions of the Home Secretary.
I, too, support the noble and learned Lord, Lord Lloyd of Berwick, on Amendment 1, and his proposal that the imposition of a TPIM should be a judicial and not an administrative act. If restrictions of this nature on basic liberty are to be imposed, they are to be imposed on British citizens, and imposed entirely outside the criminal law process. Surely it is necessary for the procedure to require that they be imposed by judges, particularly when they are being imposed by reason of serious allegations of wrongdoing on the part of the individuals concerned?
The Minister said at Second Reading—and I reminded your Lordships in Committee—that the Government’s approach to this Bill was to try to balance civil liberties and security by ensuring that the Bill goes,
“no further than is absolutely necessary”—[Official Report, 5/10/11; col. 1137.]
in limiting people’s rights. Those were his words. Surely that test, that criterion—which must be the right criterion—requires that these restrictions be imposed only with judicial approval. If the security services, with all the information available to them, are unable to persuade a High Court judge in a closed session, where the material is not disclosed to the individual concerned, that the restrictions are needed, the restrictions should not be imposed at all.
If the Revenue requires a court order before it is able to raid a person’s house in order to seize his documents, surely the Home Secretary should require a court order before she can require that same individual to remain in his house overnight, or not to contact other specified persons, or before she can impose any of the other specific restrictions under a TPIM order.
Your Lordships should have no doubt that for these orders to be imposed by a judge on application by the Home Secretary, and not to be imposed administratively by the Home Secretary herself, would substantially increase confidence in these orders in those sections of the community most suspicious of them.
My Lords, this clause gives the Home Secretary power to impose measures for terrorism prevention—so in many ways she is acting like a judge—and investigation, so she is behaving like the DPP. That is not right. You cannot combine functions that belong to the courts and the Director of Public Prosecutions into one person. That is always going to be problematic.
In this country, one of the greatest joys is that no one is deprived of their liberty unless they have committed an offence defined in law, been investigated and gone before a court, which in the end imposes the deprivation of liberty. Of course, you tell me, “This is the United Kingdom; the Home Secretary could never be near this”. In Uganda, if the President felt that you were committing treason, he made an order and you found yourself arrested, locked up and deprived of the possibility of any defence. Of course, you would say, “That is terrible; it should not be like that”. Friends, it happened to me.
Therefore, I feel where you are going at the moment, if you are going to deprive and impose specific measures on a person, surely it should be by application to the courts, and it would be the duty of the Home Secretary to present evidence that persuades a judge. Of course, we will be told that the Home Secretary will act very quickly. As the noble Lord, Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, said, it can be done ex parte, very quickly; there is no reason that cannot happen. For the sake of those of us who came to enjoy the separation of the Executive from the judiciary and still see it as the greatest defence for the liberties of people, I hope that the Government will accept that this will be an improvement to the Bill if this separation is made.
There should be no doctrinaire stuff about it. In the end, it cannot really be the same person who does all this. Thank God, I will never be Home Secretary. If I were, I would find this clause terrifying, because in my conscience I would not want to be the judge, jury and executioner all in the same place—and the DPP as well, all combined into one. For the sake, therefore, of keeping this fantastic balance of the Executive and the judiciary never meddling with one another, this legislature would do well to accept all of the amendments that have been tabled by the noble and learned Lord, Lord Lloyd of Berwick. This is what I rejoice about in this country—its liberty and its separation of powers.
My Lords, I, too, support this amendment. I want to thank the most reverend Primate for his remarks. It would be very easy for this to become a debate in which lawyers hold the floor, but it should not be, because this is so fundamental to who we are and what our system is here in Britain. We are talking about the rule of law and about liberty and the protections we provide for it.
I wanted to pick up what my noble friend Lady Hayman said when she answered the question: what is so special about judges? Her answer was that they are not politicians. It is more than that. Our judiciary is independent. We spend time—I certainly do—speaking to lawyers and judges in other jurisdictions about what the meaning of an independent judiciary really is, and how it protects our politics. As the most reverend Primate has said, it is a protection for the politicians and for our polity that we hand over issues to do with something as precious as liberty to judges—even in these exceptional circumstances—because that way we are adding weight to the importance of liberty’s meaning in all of our lives.
My Lords, I support strongly the last point made by the noble Lord, Lord Pannick, which has been indirectly referred to by the noble Baronesses, Lady Kennedy and Lady Hayman, and by the noble Lord, Lord Macdonald of River Glaven. I hope that my noble friend will take full account of the political importance of this group of amendments. The psychology of extremism feeds on a sense of unfairness and oppression. The law as it stands, and indeed as it is improved in the Bill, will inadvertently provide to those who already feel hard done by, or the subject of extreme unfairness, a spur to yet further, potentially terrorist, activities. That will be the case if an important decision of this nature— which has, as other noble Lords have said, extreme repercussions—is not the decision of an independent judge but that of a politician. However good the politician is, the person who may be converted to extremism will view that politician as an agent of politics and not as an agent of justice. For that reason, among many others, I urge my noble friend to adopt these amendments.
My Lords, I, too, support the amendment proposed by the noble and learned Lord, Lord Lloyd, on the grounds that have already been spoken of, but also on the very pragmatic grounds that, every time we as a country step beyond the normal bounds of the rule of law, or contemplate extra-judicial measures, or contemplate allowing the Executive to have powers in this area, we risk alienating young men and women who may be wavering around, or contemplating being drawn into, terrorism. We create war stories and martyrdom. Even though these are small in number, they can be used to recruit vulnerable young people into supporting or contemplating terrorism.
History tells us that every time Governments—here or abroad—have contemplated extra-judicial executive powers, in the long term those powers have tended to work against us. I understand the reasons why Governments want to maintain public confidence by being and appearing to be very tough on terrorism, and the pragmatism of police forces and intelligence services which want the widest battery of powers to be available to them immediately as they contemplate their response to terrorism. However, I fear that this power and others that I have previously spoken against in your Lordships’ House could be counterproductive in the long-term fight against terrorism. That is why I support the amendment that we are considering today.
My Lords, the noble Lord, Lord Newton of Braintree, warned the Minister that those directly behind him were not unanimously supportive of the Government’s position. I have previously warned the Minister that those at a bit of an angle to him are, similarly, not wholly with him.
I wish I had used the example given by the noble Baroness, Lady Hayman, when I recently brought some young cousins into the Chamber and attempted to explain the separation of powers. That is exactly what this is about. Recently the Government have sometimes responded to judgments of the courts as though the courts sought to usurp policy-making powers. They are not the first Government to do so. That very response demonstrates the importance of the role of the courts, and the need to demonstrate our integrity as a country for the reasons that the noble Lord, Lord Condon, has just explained.
My Lords, I have enormous respect for the noble and learned Lord, Lord Lloyd of Berwick, for his experience and the consistency of his approach to this issue. I also acknowledge how delicate the situation is, how important the liberty of the individual is and that any powers of this nature ought to be hedged by a great many safeguards. However, a decision of this nature is one that falls to the Home Secretary to take. So far, the judges who have these powers have exercised the right to scrutinise thoroughly in a way that we cannot feel is short of what might be desired. I respectfully submit that it is a power that should belong to the Home Secretary, who makes these decisions, no doubt with great anxiety and the consciousness that any decision that she makes will be looked at very carefully.
A judge will have an opportunity to look at a particular case on an ad hoc basis. However, we should not underestimate the strategic role of the Home Secretary to see an act or potential act of terrorism, or a terrorist, in the wider scope. Notwithstanding all the powerful speeches that have been made, I respectfully submit that this is a question that belongs to the Home Secretary and her alone.
My Lords, we do not feel moved to change our stance on the procedure that is associated with control orders. Therefore, we have a fundamental difference of view with those who have tabled the amendments that we are discussing and, indeed, with all noble Lords bar one who have so far spoken in this debate. The security of our citizens—protecting them from the risk of terrorism of the exceptional kind that we have seen and been under threat from in recent years—is the responsibility of an elected Government through the Home Secretary. It should be a matter for the Home Secretary, who is accountable to Parliament and the electorate, and not the courts, to make an executive decision on whether a TPIM and its associated conditions are needed if she or he reasonably believes, based on the intelligence available, that an individual is involved in terrorist activity that places the security of our citizens at risk. For that reason, we are not able to support these amendments.
My Lords, I thank the noble Lord, Lord Rosser, for those remarks, just as I thank my noble friend Lord Faulks for his remarks. I believe that we are not alone in objecting to the amendments put forward so ably by the noble and learned Lord, Lord Lloyd, for whom I have the utmost respect. We have been debating matters of this sort, sometimes on the same side, sometimes on different sides, for many years. I acknowledge his expertise, but I have to say that I do not agree with the gist behind this large group of amendments that he has tabled with support from my noble friend Lord Goodhart, the noble Baroness, Lady Hayman, and others.
Put simply, the key change under these amendments would be that TPIM notices would be imposed by a judge rather than by the Secretary of State. We have heard a great many legal arguments put forward by a great many extraordinary and eminent noble Lords—some learned, some not learned, but many are more learned than even the most learned of learned Lords. If we can take an Occam’s razor to this point, the question is: do we think that this it right for the Home Secretary to make this decision or should it be a matter for the courts? It is as simple as that.
It is no secret that the Government take a different approach to that proposed by the noble and learned Lord and other noble Lords, be they learned or not. It is no secret that we take a different approach from that recommended by the Joint Committee on Human Rights and others who have spoken in this debate. These are matters that we have debated in the House during the Bill’s passage and to which the Government have responded, in full, to the Joint Committee on Human Rights, including their response to the report of 19 October issued earlier this month.
The arguments are well rehearsed. I appreciate that noble Lords have again set out their views that such restrictions that may be imposed under this Bill—and which I emphasise are preventive, not necessarily punitive—should only ever be imposed by a judge. It is a respectful and principled decision. It has consistently been held by some in this House in relation to control orders in the past and now to TPIMs, but we cannot agree with it. We do not accept, as the noble and learned Lord, Lord Lloyd, would put it, that it is unprecedented for decisions of this sort, based on national security cases or on sensitive material, to be taken by the Executive. As he is aware, there are a number of occasions when executive decisions are made by the Home Secretary and others.
The noble and learned Lord was wrong to suggest that deprivation of British citizenship applies only to citizenship obtained by fraud. It can also be used on grounds of being conducive to the public good if the citizen is of dual nationality, which the noble and learned Lord did not mention in his response. He did mention that it can also be used under asset freezing, under the Terrorist Asset-Freezing etc. Act 2010. Again I appreciate that the noble and learned Lord did not accept that Bill, but it is now an Act. It can be used on financial restrictions under the Counter-Terrorism Act 2008. It can also be used—and has been very recently—regarding decisions to proscribe organisations that the Home Secretary believes are involved in terrorism. It is a well established principle that it is the relevant Secretary of State who can take such decisions in, for example, cases of asset freezing and others such as immigration cases with a national security dimension, with subsequent judicial oversight. That is the important point to remember. My right honourable friend the Home Secretary will make that decision. She is the right person to make it, but it will be reviewed by the courts in due course. I give way to the noble and learned Lord.
Does the noble Lord accept that the only precedents on which he relies, other than the very recent terrorist asset-freezing legislation, are immigration decisions which have nothing whatever to do with what is before us? They deal basically with foreigners, not with British-born subjects.
It is still a matter of national security. That is why we believe that it is for the Home Secretary to make the appropriate decision and for that to be reviewed by the courts. The noble and learned Lord mentioned the 2010 Act, with which he did not agree and which he opposed. I mentioned that but I also mentioned the Counter-Terrorism Act 2008 and the financial restrictions under that. That is another example. I accept that the other matters concern immigration decisions but they are important. I also mentioned the fact that the Home Secretary has the power to proscribe organisations which she believes are involved in terrorism. Again, that matter can be reviewed by the courts, as can the one we are discussing. Therefore, it is irrelevant whether the earlier matters concerned only immigration, as the noble and learned Lord put it. These matters go beyond that. They involve national security. I will give way to the noble Baroness in a minute when I have finished this point. Therefore, I think it is right that my right honourable friend the Home Secretary should be involved in those decisions.
I am grateful to the Minister for giving way. Until I listened to the speech of the noble and learned Lord, Lord Lloyd of Berwick, I had not been aware of the argument put forward by the noble Lord, Lord Sassoon, as regards the executive nature of the terrorist freezing orders to be made, that there was a distinction and that these were justifiable because they dealt with financial matters, not individual liberties. Will he comment on that argument?
The noble Baroness is right to mention what my noble friend Lord Sassoon said on that occasion. He drew a distinction between financial matters—that is, property—and individual liberties. However, both are matters that affect one’s human rights. Despite the noble Baroness’s socialist background —I am sorry if I make her laugh—I presume she would accept that the rights to property are matters which involve one’s human rights, just as the rights to liberty do. My noble friend Lord Sassoon drew the distinction that both of them are matters relating to one’s human rights.
There is obviously a distinction but both involve one’s human rights. That is the importance. The noble Baroness may have noticed that when my noble friend Lord Sassoon noticed on the television that the noble and learned Lord was making these points, he came in to have a quick word with me to make clear what he had discussed, and I will try to convey those feelings to the House. I hope that I have understood what my noble friend whispered to me on the Front Bench, and I hope that the noble Baroness will accept it.
As we also made clear, we believe that it is not just the view of the Executive that is crucial in these matters. That is why I quoted earlier the view expressed by the courts. It is consistent with the view expressed by the Court of Appeal in the case of MB, which the noble and learned Lord also referred to, in which the court said that,
“the Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect”.
In the same judgment the Court of Appeal also noted that the principle that the courts should pay deference to the Executive on matters relating to state security has long been recognised by the courts in this country, including the Law Lords, and by the European Court of Human Rights.
As I said at the beginning of my speech—in asking, as it were, for something approaching an Occam’s razor to be put to this argument—it is just getting it down to the simple question: which do you think is the appropriate body to make this decision?
I am not going to give way until I finish this point, and then I will give way to the noble Lord.
We believe that it is for the Home Secretary to make the decision, and for this decision to be subsequently reviewed, because the Home Secretary is a politician who is answerable to Parliament. I appreciate that some will knock the role of politicians but I would remind noble Lords of the very powerful speech made by the noble Lord, Lord Reid, at Second Reading, where he reminded us that most of our freedoms are the result of politicians and their acts, and not of the courts. The Home Secretary, as a politician answerable to Parliament, will make that decision and that decision will then be reviewed by the courts in due course. It is that very simple decision that we want to make. Should it be the Home Secretary or should it be the courts? We believe that it should be the Home Secretary. I will now give way to the noble Lord.
I am grateful to the noble Lord. I am puzzled by why he thinks that judicial control at the outset would undermine ministerial responsibility when he accepts that there should be judicial review on a merits approach at a later stage if the order is challenged. Why is the latter equally not an undermining of ministerial responsibility?
Because my right honourable friend is responsible for security and, as I said, she is answerable to Parliament. We believe that she should make that initial decision and that later on it can be looked at by the courts. However, we think it right and proper that she should make it. That is the reason why, as I said, I am trying to strip this amendment down to its simplest point: do you want the decision made by my right honourable friend the Home Secretary or do you want it made by the courts? We believe it right that it should be made by my right honourable friend and then reviewed by the courts. For that reason I cannot support the amendment that the noble and learned Lord has moved.
The Minister has not dealt at all with the point on Section 4 of the 2005 Act. There is a clear case, as I am sure he realises, where the initial order is made by the court and not by the Secretary of State. Why should that not apply here? It is not an answer to say that that is a derogation order—or if that is an answer, why is it an answer?
My Lords, if I had wanted to use up a great deal of the House’s time, I could have answered a great many points, and indeed the House may wish me to answer them. I was trying to bring this matter down to a simple question for the House: who would be the appropriate person to make this decision?
Section 4 was raised. The Government’s counter-terrorism review looked at that but did not consider that derogating control orders provided an appropriate parallel. No derogating control orders have ever been made and the context here would be different. Derogating control orders would impose obligations so stringent that the Government would, as I understand it, need to derogate from Article 5—that is, the right to liberty—of the European Convention on Human Rights before such orders could be imposed. Non-derogating control orders—the only kind ever used—can, by definition, impose only less restrictive obligations, and Parliament agreed that these should be made by the Secretary of State.
I go back to the very simple point that I want the House to address in the noble and learned Lord’s amendment: who do you think is the right person to make this order? We believe that the right person is the Home Secretary because the Home Secretary is answerable to Parliament and is responsible for national security. That will then be looked at by the courts, but we do not believe that it should be the courts ab initio. For that reason, I cannot support the noble and learned Lord’s amendment.
My Lords, I regret that I find the noble Lord’s reply to the debate pretty unsatisfactory. I have as great a respect for him as he says he has for me, and I just wish that he could have made a better case for the Government than he has. I think that the case is as weak as it could possibly be. I do not suppose that this amendment is likely to succeed, but it should and I therefore propose to divide the House.
Amendments 2 to 4 not moved.
Schedule 1 : Terrorism prevention and investigation measures
5: Schedule 1, page 22, line 5, at end insert—
“Residence measureA1 (1) The Secretary of State may impose restrictions on the individual in relation to the residence in which the individual resides.
(2) The Secretary of State may, in particular, impose any of the following—
(a) a requirement to reside at a specified residence;
(b) a requirement not to allow others to reside at that residence without the permission of the Secretary of State;
(c) a requirement, applicable between such hours as are specified, to remain at the specified residence.
(a) may be in any locality in the United Kingdom that appears to the Secretary of State to be appropriate;
(b) may be a residence provided by or on behalf of the Secretary of State.
(a) the condition that the individual remains overnight at other agreed premises between such hours as the Secretary of State may require;
(b) the condition that the individual complies with such other restrictions in relation to the individual’s movements whilst away from the specified residence as may be so required.
(a) the generality of sub-paragraph (7) of paragraph 14 (power to impose conditions when granting permission), or
(b) the power to impose further conditions under that sub-paragraph in connection with permission granted by virtue of sub-paragraph (5) of this paragraph.
My Lords, I have a number of amendments in this group and I should like to start with Amendment 44A. At Questions, the noble Lord, Lord Henley, seemed to think that this was peripheral to our debates today but I do not think that it is. Surely the context in which we consider the Bill is in relation to the measures that are necessary to prevent terrorism. We were offered a Statement in lieu of a PNQ in the other place on the matter to which I am going to refer, but it is just as appropriate to discuss it here.
Amendment 44A essentially asks the Secretary of State to commission an independent review to report on the operational effectiveness of the terrorism prevention measures in place at our international borders. That is set in the context of serious concern about the operation and effectiveness of the terrorism prevention measures in place at our international borders and the Bill has to be seen in this context. Of course, one has to refer to the significant reduction in the levels of security in border checks at UK points of entry in the summer of 2011, which has been the subject of considerable parliamentary debate and concern over the past two to three weeks. The noble Lord will be aware that the Home Secretary has yet to answer some very serious questions, particularly in regard to the scale of the security breaches that have taken place.
The subject of the PNQ in the other place today concerned reports this morning that thousands of passengers arriving on private jets from all over the world were allowed into this country this summer without any passport checks as a matter of official policy, at least according to information that appears to have come from UK Border Agency e-mails. The internal UKBA documents show that immigration and customs staff were instructed not to meet passengers arriving on private charter flights, including executive jets, as part of a so-called light touch targeted approach to border checks that was adopted this summer without, as far as I am aware, the information being put into the public domain.
These e-mails from the UKBA also reveal the extent to which full passport checks on European passengers were scaled back under the limited pilot scheme authorised by the Home Secretary on 28 July. I have to say that this is a very worrying state of affairs. In the context of the cuts that have taken place in the UKBA budget, it suggests that the UKBA is having great difficulty in carrying out its functions effectively. Essentially, since the Government came to power, a number of additional responsibilities have been placed on the UKBA at the same time as the huge reduction in its budget. No wonder we have reached such a difficult situation. The point that I put to the noble Lord, Lord Henley, is that this exposes general concerns about the operation and effectiveness of terrorism prevention measures, which is why I commend Amendment 44A to the House.
I return now to a group of amendments moved in Committee by the noble Lord, Lord Carlile. The noble Lord is not able to be with us this afternoon but I am grateful to him for putting his name to my amendments. Essentially, they propose keeping the existing control order provisions for relocation—which is the central point of many of our discussions on the Bill so far—until after the Olympic Games. From a chosen date after 1 January 2013, it would be open to the Government to come back to Parliament and replace the current relocation provisions with the provisions in the Bill, which would remove relocation subject to the emergency legislation that is also in the Bill.
The evidence given by the Deputy Assistant Commissioner to the Public Bill Committee in the other place was quite persuasive on the reason for and effectiveness of the use of control orders. The decision in the case of CD earlier this year was made after the Government argued, in the interest of national security, for a relocation component in CD’s control order. I remind the noble Lord, Lord Henley, that in Committee the noble Lord, Lord Carlile, asked if the Government had changed their mind about CD and, if so, why. If they have not changed their mind, why are they bringing the Bill before us?
On timing, is it really sensible to remove the relocation provisions at the current time? The Olympics are almost upon us. The noble Lord will know of reports in the media of US concerns about Olympic security. I fully accept that the Government have stated that this has not been reported accurately, but there is no denying the challenge facing us. My amendment does not seek to detract from the essential point of this legislation. All it does is keep the existing exclusion order provisions until after the Olympics. At that point, if the Government are satisfied that they no longer need the provisions, they merely have to bring an order to Parliament and the provisions in the Bill will take over. If I may so, it is a pretty good offer. It allows the Government to continue with these provisions over a particularly challenging time but does not undermine what they are essentially seeking to do. The noble Lord was not very warm towards these amendments in Committee. Let us hope that he is a little warmer to them at Report. I beg to move.
I support the Government in their decision not to include the relocation power in the Bill. The speech of the noble Lord, Lord Hunt of Kings Heath, was notable for what he did not say about relocation powers. He did not mention the central feature of such a power, which makes it particularly intrusive and particularly damaging to the life of the individual who is the subject of it as well as to the lives of all members of their family. That is why such a measure should surely only be available if the Government conclude that it is truly necessary to protect national security. My understanding is that they do not, as the Minister made clear in Committee. I support them in that.
I agree with what the noble Lord, Lord Pannick, said. I understand the reasons behind this change, yet I have some sympathy for what the noble Lord, Lord Hunt of Kings Heath, said. It is reasonable to ask for reassurance about what will be a massive event with security implications. I am sure that the Minister will answer that query. I wonder if there is also an issue in relation to the transition from control orders to TPIMs at the end of this year, as the 28-day transitional period will fall over Christmas and new year. I would be grateful if the Minister would provide some reassurance that the police will be able to manage this transition.
I am grateful to the noble Lord, Lord Pannick. Of course, he is right. That is not the first time he has been right: nor, I imagine, will it be the last. I make one plea to my noble friend. I am concerned that, if the official position of the Opposition and the party which I support—and of which I am a member—is that it is not necessary, as was demonstrated on the last amendment, for action to originate with the courts and judges, this will extend still further the powers that will flow from an executive decision by the Secretary of State. To have such far-reaching powers—whether they are needed at all is a separate issue—without the action having originated in the courts becomes even more disturbing. I hope that my noble friend and his colleagues, in considering future policy over a longer period, will give this serious consideration.
The noble Lord, Lord Phillips, in the debate on the previous amendment, made what for me was the most powerful argument: that is, what are we trying to do? We are trying to promote the security and well-being of the British people. If we are going to do that we must have the maximum possible support for what is being done in all the communities that matter in this context. If that is to be the case, and if people are not to be prone to manipulation by extremists in the midst of their concern and anxiety, it is desperately important to demonstrate that when extensive powers are brought to bear, they have the authority of the courts and are part of the whole tradition of the administration of justice and the rule of law as we have understood it in this country.
Let us make no mistake. The objectives of the extremists are to undermine and destroy our commitment to the rule of law as we have understood it and to destroy the credibility of our claims about the rule of law. We must be careful that we do not play into the hands of the manipulative extremists and put the vulnerable and the impressionable under still more pressure to join their ranks.
My Lords, before I say anything else I had better warn my noble friends on the Front Bench that—to their surprise—I am about to support them, along with the noble Lord, Lord Pannick. However, that is in the context of having voted against them on the previous amendment and having agreed with every word that the noble Lord, Lord Judd, said, which built on what my noble friend Lord Phillips said in the previous debate. If these provisions had still been in the Bill during the previous debate, they would have been a major focus of it. The notion that one forces somebody away from their friends, takes their children out of their schools and breaks all their links by a relocation order, underlines the desirability of this being something that is sanctioned by the courts and not done as an executive fiat by the Home Secretary.
I will speak, but not at length, to the Labour Front Bench. This is a bit of a sad day for all of us except the 79 who formed a small group in the Lobby behind me. However, in the light of this debate, it is an even sadder day for the Labour Party—I suspect that the noble Lord, Lord Judd, would agree with me but I will not ask him to indicate that—when set against the background of much of what it has stood for over the years. One thing that pleased me when we got the coalition was that there were clear indications—and not just because it was a coalition—that the Conservative Party was occupying the freedom ground again rather than the authoritarian ground. There are now reasons to question that, but I will not go on down that line.
I want to conclude without repeating points that have already been made. Okay, there will be problems during the Olympics, but they will be a great showcase for our country: its values, qualities and abilities. Why do we want, in the course of the Games, to maintain a proposition that is, frankly, inimical to everything that most of the rest of the world thinks that this country stands for and to what most of us think is what our democracy stands for? That is my question and that is why I support the Minister.
My Lords, I also support the Government’s position on these amendments. The counterterrorism review gathered a great deal of evidence about relocation, as well as other measures applicable under the control order regime. The evidence was considered extremely carefully, as far as I could see. After all, the review was conducted by no less a division of the Home Office than the Office for Security and Counter-Terrorism, which is to be found in the deepest bowels of that department of state. Its conclusion, which I thought was certainly in accordance with the evidence, was that relocation was disproportionate and unnecessary in the face of other measures available under the TPIM legislation and particularly in the light of the Government’s decision to increase the amount of funding for surveillance, which after all is the main technique used by countries like us around the world to deal with these sorts of issues. I agreed with the conclusions of the counterterrorism review, as I thought that they were clearly in line with the evidence, of which there is a great deal. I am sure that the Government’s position on these amendments is the right one.
I, too, as someone who supported the noble and learned Lord, Lord Lloyd of Berwick, in his amendment, believe that it is the duty of the Home Secretary to make the application to the judge and the judge to determine. To bring back relocation would make the case worse—not because we lost the last Vote, but I generally feel that on this particular bit of the Bill the Government have got it right. So I hope that we do not have to go through the Lobby Doors again but that the amendment will be withdrawn. Nothing will cause me greater difficulty in my understanding of British justice than bringing back relocation. That actually causes more difficulty in our communities than anything else. If there is going to be relocation, the noble Lord, Lord Hunt, should in his amendment have said that it should be done on the orders of a judge and not the Secretary of State.
I go with the Government on this, as I think they have got it right. Of course, we lost the last and most important amendment, but there we are.
My Lords, I support the amendment in the name of the noble Lord, Lord Hunt. Coming as I do from Northern Ireland, I regard control orders with great suspicion and concern, as with anything that smacks of internal exile. That is one of the implications of control orders and it is quite right that the House should take an extremely sceptical view of them.
None the less, there are two important considerations, one already alluded to by the noble Lord, Lord Hunt, which is the evidence given by the deputy assistant commissioner about the efficacy of control orders. The other crucial point is the recent public debate over concern about security during the Olympics. There is a balance to be struck here, and it is very difficult for the Government to get this right; but this is a very modest request—a timing issue, focused fundamentally and purely on the question of security during the Olympics. For that reason, I favour the terms of the amendment in the name of the noble Lord, Lord Hunt.
My Lords, I am grateful to have the opportunity to follow the noble Lord, Lord Bew, who has summed up the argument about prudence on this amendment. This is not a new power—it is making available during the Olympics year the existing powers. That is all that it does. It does not create a new power, despite what my noble friend Lord Judd has said. I am very conscious—and I do not think that the Minister answered this point on Second Reading or in Committee—that the power of relocation has been used in a very small number of cases, and it has been used by the present Home Secretary. This is not some hangover from the days of the previous Administration in terms of its use; it has been used by the present Government and the present Home Secretary.
I would like to be satisfied on why the Government think that a power that was used earlier this year, because the Home Secretary considered it necessary on the basis of the information that she had received is no longer necessary in the period during the Olympics when we know that the threat will be extremely difficult. That is extremely important.
I am sure that it is helpful to the noble Lord, Lord Henley, to have the noble and learned Lord, Lord Lloyd, putting his arguments in advance. That may well be the argument on which the noble Lord, Lord Henley, will rely.
That brings me to my next point: can the Minister assure us that all of those extra surveillance arrangements will in fact be fully available, including the technical measures, by the end of this calendar year? Can he assure us that all of those arrangements are in place, and will be in place, and where there are technical measures, whether they have been adequately tested? The last thing any of us in this House would want to see is a situation in which new measures turned out not to be fully functioning when the need was greatest.
This is an amendment about prudence. I think it was relevant that the noble Lord, Lord Faulks, raised the point about the transition period. Again, I would be interested to hear the Minister’s response. It seems to me that the Minister has to satisfy the House today that not passing this amendment is a prudent, sensible and proportionate course of action. Those of us who are concerned about the security that will be available during the Olympics want to be satisfied that every necessary measure is available. Let us remember, this is not a mandatory obligation on the Secretary of State. Amendment 5 proposes that the Secretary of State “may impose restrictions”. It would only kick in under the very small number of instances where the Home Secretary was convinced, on the basis of information received, that this was something that was appropriate and proportionate to do. It would not be used on a blanket basis, and the number of instances in which relocation has been used under the existing control order regime is, as I understand it, extremely small.
I turn to Amendment 44A and the report on border controls to prevent terrorism. While I am not quite sure I understand the logic of the grouping which puts this with the other amendments, I none the less think it is extremely important. We have to recognise that, irrespective of the discussions there have been in the last week or so, there are issues about the security of our borders. This is nothing to do with whether the UK Border Agency has or has not been doing its job properly; has or has not exceeded the instructions of the Home Secretary; has or has not relaxed controls over and beyond that. It is about whether or not the controls could ever work. Therefore I think this report would be extremely valuable.
Could the Minister tell us what work is being done about people who arrive in this country by train through the Channel Tunnel, but whose destination may not have involved them having to go through passport control in either Paris or Brussels? To what extent are the Government considering what is going to happen at the point at which Lille, I think it is, is connected to a greater number of major train lines within the continent of Europe? What steps are in place to ensure that our borders are secure under those circumstances?
Can the Minister also satisfy us—and this has been the subject of debate in the last few days—what steps are in place to ensure that people who arrive in this country by coach are also adequately screened and whether the arrangements in place are able to cope with the volumes involved? Finally, for those who arrive by ferry, are arrangements in place to manage the numbers involved, and manage them properly?
My Lords, on the amendment on relocation the noble Lord, Lord Hunt, said that it does not detract from the essential point of this Bill. I think it does because the change to the measures which can be imposed is the essence of this Bill. Relocation is an extensive measure and can be particularly damaging—the noble Lord, Lord Newton, referred to this. I would add to his examples not just that of taking children out of their school and replanting them somewhere quite different but that of separating the individual who is the subject of the measure from his family, which has happened with relocation in a number of instances. I do not need to explain the impact of that.
Reference has been made to the evidence given to the Public Bill Committee in the Commons on behalf of the Metropolitan Police. I read that evidence as the sort of thing that any good copper would say in seeking to defend the police's position and ensure that as much money as possible was allocated to the activity, making quite understandable caveats about limits. Before the noble and learned Lord, Lord Lloyd of Berwick, mentioned it my reaction, too, to what happened earlier this year was that—as I think the Minister’s predecessor but one told the House on an earlier occasion—the extra surveillance measures were not then in force but would be, so the situation is changing.
I have always found a difficulty with pointing to the Olympic and Paralympic Games as a kind of watershed, not because I do not acknowledge that they could be a high-profile occasion for any terrorist to use but because we either are or are not equipped for dealing with terrorism. I cannot quite get my own head around whether, disregarding what the Americans may have said yesterday—they have always said that in relation to the Games—the Games are so very much more of a danger point. Indeed, is there not a danger for us in focusing on them as the critical time? It would be very damaging to the reputation of the Games and of this country if there was an attack earlier or later than that because we appeared to have relaxed our guard. I just find a difficulty in that.
Amendment 44A is exactly the opportunistic sort of amendment which I would entirely have expected the Opposition to table. Any Opposition would do so, but if the situation is as serious as they point out, then I, for one, do not want to wait a year. However, I am not sure whether this is in any way the right amendment. I would like to see an evaluation of the pilot that we have heard has been carried out, not to wait a year for that, but we are told that more dodgy people were picked up as a result of the pilot and it is important that we understand how that worked. This amendment, however, appears to go wider than the measures under this Bill because it does not use the term “measures”, which is defined in the Bill. I wonder whether the amendment is even within the scope of the Bill but leaving that technical thing aside, this is about immigration and controlees. The subjects of TPIMs are or will be British citizens, so although it raises important points I do not think those points are wholly relevant to this Bill. The subject is important but it is important to get it right, not to have it as a political football.
My Lords, we have a curious group, as some noble Lords have put it, with the amendments relating to relocation, and Amendment 44A, put down by the noble Lord, Lord Hunt of Kings Heath, I believe late last night.
The noble Lord, Lord Harris of Haringey, who is a pretty experienced politician, curiously came over rather naïve about this and could not quite understand why these two amendments had been grouped together. That point was answered by my noble friend Lady Hamwee when she pointed out that it was possibly a somewhat opportunistic amendment to put down. I give way, as always, to the noble Lord.
I know this is fearful—every time the noble Lord mentions my name I stand up, and I will endeavour not to do that.
My puzzlement was associated with the grouping. Had this been freestanding as Amendment 44A, we could have had a nice little debate about that and about its place in the Bill. I was puzzled that it was grouped with these other amendments on the relocation powers.
Given that the noble Lord is quite an experienced Member of this House, he will know that the grouping is not a matter, sadly, that the Government have any control over, and that it would be a matter for the noble Lord, Lord Hunt of Kings Heath, to decide that he wished to have this amendment grouped with the other amendments. Of course, the Government are more than happy to go along with that.
If I may, I will deal with that amendment very briefly. It is an amendment that asks for yet another report and I have to say that it is not necessary. As the noble Lord, Lord Hunt of Kings Heath, knows, there is ample provision already in place for independent review. We have the independent reviewer of counter-terrorism, currently David Anderson QC, and for 10 years before him we had my noble friend Lord Carlile of Berriew, who did that job exceedingly well. The independent chief inspector of the United Kingdom Border Agency, currently John Vine, is also required to review the operation and effectiveness of the measures in place at our ports and airports. They both report annually to the Home Secretary and their findings and reports are laid in Parliament.
I will not go much further than that and I will not deal with the specific points that noble Lords have raised in relation to recent events, partly because John Vine has been asked by the Home Secretary to make a report into these matters. There are also two other internal reports that deal with these issues—again, which have been promised by my right honourable friend—that will be made available when they come out. It would therefore not be right or proper to deal with those matters.
Referring on to the question of private planes coming in and what controls we have there, as my honourable friend in another place, Damian Green, made clear, we have absolutely nothing to hide. We have in fact strengthened the procedures there compared to what they were pre-2010 and we have made sure that we prioritise and make appropriate risk-based assessments on any planes that come in. A Statement was offered to the party opposite but for reasons of its own it wished not to take it.
I turn to relocation. Again, I accept that this is an issue that has been debated extensively throughout the Bill’s passage both in this House and in another place. Obviously there are strong views on all sides. We accept that relocation has proved effective in disrupting terrorism-related activities, but it does, as my noble friend Lord Macdonald made clear, raise particularly difficult questions of proportionality. The question is therefore, as I put it at Second Reading and which I repeat now, one of balance. Our review of counter-terrorism acknowledged these difficult questions and considered them carefully. The review concluded that the best balance lies in a more focused use of the robust restrictions that will be available under the Bill together with the increased resources that will be available for covert investigation. It concluded that it will be possible to protect the public without the powers of relocation being routinely available.
We must always remember not to look at this Bill on its own. It is part of that wider package of changes, including those in the counterterrorism review, aimed at striking a better balance across the whole range of counterterrorism and security powers, and it will be complemented by the significantly increased funding that we are providing for those purposes. We have also published the Draft Enhanced TPIM Bill, which will be introduced if necessary, in exceptional circumstances, after some degree of prelegislative scrutiny, as is found appropriate by the authorities in this House and another place. It would provide more stringent restrictions, including that power of relocation, if necessary.
I understand that the noble Lord, Lord Hunt, has concerns over timing, particularly in relation to the Olympics. Again, he ought to listen to what my noble friend Lord Newton had to say about that, and possibly the Olympics is the one occasion when we would not want to be showcasing to the world the fact that we have measures of this sort. However, I take his concerns about the Olympics. The Government have made very clear that arrangements will be in place to manage effectively the transition from control orders to TPIM notices. Security arrangements for the Olympics are being planned on the basis that the TPIM Bill, and the powers available under it, will be in force. These plans are also proceeding on the basis that the additional powers contained in the Draft Enhanced TPIM Bill will, we hope, not be needed or be necessary. As is right and proper, our planning for the Olympics is both flexible and risk-based, and we will continue to monitor the threat to ensure that we adopt the most appropriate response, including keeping this issue under review as necessary in the light of developments.
Finally, my noble friend Lord Faulks raised a detailed and very important question about the transition period when this Bill comes in, which will be over Christmas. He asked whether I could provide some reassurance that the police would be able to manage this transition during that period. As the House will be aware, the Bill includes provision for a transition period during which control orders will remain in force to enable the necessary arrangements for TPIMs to be put in place where appropriate. The Christmas and New Year holidays are likely to fall within that period because we are approaching the time when the Bill will complete its passage through both Houses, assuming that the Bill receives Royal Assent before the Christmas period. We have recently received advice from the Metropolitan Police that while extensive preparations are being made for the transition to the new regime, an extension to the transition period from 28 days to 42 days would be required to ensure that operational risks are minimised over the holiday period. I give an assurance to the House and to my noble friend that I undertake to bring forward an amendment to the Bill at Third Reading that will make that necessary change in Schedule 8 to the Bill—I think it is more or less the last sentence of the Bill.
I hope that with those explanations, and stressing again the need for balance and proportionality, the noble Lord, Lord Hunt, will feel able to withdraw his amendment.
My Lords, I am very grateful to all noble Lords who have taken part in this short debate. I am disappointed that the noble Lord, Lord Henley, could not respond somewhat more positively to my Amendment 44A. My noble friend Lord Harris asked a number of pertinent questions. No doubt when the official inquiries report, we will get answers to them. There is an underlying concern about the security of our borders and the resources available to the UK Border Agency. I hope that we will have another opportunity to return to this in due course.
As for my other amendments, I say to the noble Lord, Lord Pannick, that at Second Reading I recognised the exceptional and intrusive measures that control orders imply and I do not at all detract from that. I just happen to think that they are one of the tools that should be open to the Government, with ample judicial review where they happen to be used.
I very rarely disagree with my noble friend. I was surprised at what the noble Lord, Lord Newton, said. After all, if the Opposition had indeed voted with the noble and learned Lord, Lord Lloyd, the Government would have been defeated. Government defeats are something that I usually rejoice in, but the fact is that I feel that it is right that we are consistent with the position that we took in Government and our view that, in the end, it is for the Home Secretary to make that judgment, rightly or wrongly. I do not think that it is a sad day for the Opposition. It would have been a sad day if we had taken an opportunist position.
The noble Lord, Lord Faulks, asked a very good question and I think that he got a very good answer. Forty-two days has a certain ring about it in the history of debating this legislation and I look forward to the debate at Third Reading when the noble Lord, Lord Henley, brings forward his amendment. At the end of the day, my noble friend Lord Harris and the noble Lord, Lord Bew, had it right: the amendments I am putting forward are modest ones. All they do is give the Government the opportunity to use exclusion orders for a very limited period to take us through a challenging period, with the option at the end—within just over a year—to come to this House with an order to remove those provisions from legislation and let this Bill follow its course. I still believe that that is, and would be, a sensible way forward, and I am disappointed that the Government are not going to take it.
The noble Baroness, Lady Hamwee, said that we are either equipped or we are not equipped. That is the Government’s position, to be either equipped or not equipped. They have made a great song and dance of getting rid of exclusion orders but have then said, “Just in case, we will have emergency legislation up our sleeve, and, by the way, there are certain circumstances when Parliament cannot be recalled, so we had better have it in this Bill as well”. We can talk about being equipped or not equipped: it is absolutely clear that the Government know that they might need these provisions in the future. That is why they are legislating for them, either through the emergency legislation, which is going through pre-legislative scrutiny at some point, or in this Bill. They ought to have welcomed the flexibility that my amendments would give them.
However, the most reverend Primate the Archbishop of York has advised me not to move the amendment on this occasion. He was a wonderful Bishop of Birmingham when I first met him. In this case, I will take spiritual advice and will not seek to press the House on this any further. I beg leave to withdraw the amendment.
Amendment 5 withdrawn.
Amendments 6 and 7 not moved.
8: Schedule 1, page 22, line 15, after “at” insert “, or within,”
My Lords, I beg to move Amendment 8, in my name. In doing so, I shall speak to Amendments 13, 30, 31, 45, 46, 47 and 48, all of which are in my name. Also in this group, I will touch upon Amendment 14, in the name of my noble friend Lady Hamwee, which is an amendment to my Amendment 13. These are a number of necessary technical amendments to the Bill. I hope that some noble Lords will have had the opportunity to read the letter that I sent last week explaining what each amendment achieves. However, for the benefit of the House and for the record, I should briefly explain why we need to make these amendments.
I shall start with Amendments 8 and 13. These amendments make two small but important changes to clarify the drafting of the residence and police reporting measures. The residence measure is intended to ensure that the individual can be required to reside at a specified address, and to remain there for specified periods overnight. The clear purpose of this is to manage risk. As part of this measure it may be necessary to require the individual to remain within the residence itself. This means that it could be necessary to prohibit them from entering any garden or outside area forming part of the property, or any communal areas in a shared property. As currently drafted, the provision does not necessarily make clear that the measure can be applied in this way. It is potentially ambiguous as to whether the requirement to remain at the residence includes any outside or communal areas. Therefore, it may be open to legal challenge on its meanings.
Amendment 8 is, therefore, essentially a drafting amendment to remove this uncertainty and make clear the policy intentions. It will put beyond doubt that the individual may be required to remain within the residence—that is, essentially, behind their front door during the specified overnight period. I should make clear that where individuals are confined to their residence and electronically monitored in other contexts, they will normally be required to remain in the house or flat and will not be allowed out into their garden. The particular requirements imposed by the Secretary of State in each case must always be necessary and proportionate. The court will subsequently consider the proportionality of each measure as part of its review of the notice.
Amendment 13 relates to the police reporting measure and makes clear that, in addition to requiring the individual to report to a police station at specified times and in a specified manner, the Secretary of State may require him to comply with directions given by the police in relation to such reporting. This is necessary to ensure that the individual can be required to co-operate with the practicalities of reporting—for example, requiring him to report to the front desk of a police station, speak to the officer there and sign to confirm his attendance. This has always been the intention behind this measure and is the current practice in relation to control orders. It is necessary to ensure that the provision reflects the reality of how the measure will operate. It is also in line with the general procedures for individuals required to report to a police station for any reason—for example, individuals on police or court bail.
My noble friend’s Amendment 14 would amend Amendment 13 to specify that any directions given by a police officer must be consistent with the requirements imposed by the Secretary of State under the police reporting measure. I can say to my noble friend that the amendment is unnecessary. The police will legitimately be able to give only directions consistent with the overarching requirements imposed by the Secretary of State. Such directions must be reasonable. If a police officer gives unreasonable directions, the individual will be able to draw the Secretary of State’s attention to the matter and/or challenge this in the courts. In any event, there is no advantage in the police giving directions that are inconsistent with what has been specified by the Secretary of State. The provision is to ease the process of reporting at the police station. As I have already outlined, it would be used to provide more detailed requirements, such as signing a particular document.
Amendments 30 and 31 make a small but necessary change to Clause 8. The clause provides that the court must, when granting permission to impose a TPIM notice at the outset of the process, give directions for a directions hearing in relation to the automatic full review of the case. As the Bill is currently drafted, this directions hearing must take place within seven days of the TPIM notice being served, unless the individual agrees to postpone it. The programming of such hearings is a matter for the courts. It has become clear that the current drafting of the provision has unintentionally introduced a restriction on the discretion currently available to the courts to manage similar hearings in the control order context. We have therefore been asked by Her Majesty’s Courts and Tribunal Service to make a change to the Bill to provide flexibility in this respect for the courts to facilitate effective management of court time. Amendment 30 amends Clause 8 so that the court may programme the directions hearing later than seven days after service of the TPIM notice if it so directs. Clause 8(6) still provides that directions given at that hearing must provide for the substantive review hearing,
“to be held as soon as reasonably practicable”.
Amendments 45 and 46 are essential technical amendments and do not reflect a change in the policy behind this Bill. Rather, they are necessary in consequence of changes to other legislation currently before the House. Section 154(1) of the Criminal Justice Act 2003, which has not been commenced, increases the maximum sentence on summary conviction in England and Wales from six months to 12 months. When the TPIM Bill was drafted, the intention was that this provision would be repealed by the Legal Aid, Sentencing and Punishment of Offenders Bill. Because of this, Clause 23 provides that the maximum sentence on summary conviction for contravening a measure specified in a TPIM notice is six months. However, Section 154(1) of the Criminal Justice Act 2003 will not now be repealed. On that basis, these amendments are needed to revert to the previous practice when legislating in relation to offences tried summarily. They provide for a maximum 12-month term in England and Wales, but include a transitional provision limiting the sentencing power to six months, pending commencement of Section 154(1) of the 2003 Act.
The final changes, Amendments 47 and 48, are technical amendments to Clause 26. The first returns to a matter helpfully raised in the amendment tabled at Committee by my noble friend Lady Hamwee. The noble Baroness’s amendment would have deleted Clause 26(11)(a), which makes a provision allowing a temporary enhanced TPIM order to amend any enactment. The subsection of the clause was drafted on the basis that the temporary enhanced TPIM order would need to amend other legislation to ensure that the enhanced TPIM system would function correctly. I undertook to consider the point further and, having done so, have concluded that the subsection is not necessary for this purpose. I am therefore pleased to bring forward government Amendment 47, which will remove paragraph (a), and I thank the noble Baroness for her suggestion in this respect.
Amendment 48 is necessary to ensure that the order-making power does not inappropriately impinge on devolved matters in Scotland. The amendment provides that a temporary enhanced TPIM order may not make any provision relating to devolved matters in Scotland other than those already contained in the TPIM Bill without the consent of the Scottish Government. I beg to move.
My Lords, I have Amendment 14 which is an amendment to the Minister’s Amendment 13. I am grateful for his confirmation that the wording that I have proposed is not necessary. I did not think that it was. I was relying on the word “and” at the end of the new paragraph (a), but I am glad to have that on the record.
Will it be open to an officer to direct reporting times? That presumably will be the case if the Secretary of State does not give a notice covering the matter. Will it always be the Secretary of State who gives that notice? The Minister will recall my concern that reporting should be required at a time which in general terms is reasonable and would particularly allow for the individual to carry out a course of study or to undertake work. As I probably said on the last occasion, one could not quite envisage applying for a job and saying to a prospective employer, “I am sorry, I am going to have to take two and half hours off three times a week in order to report in to a rather inconveniently located police station”. That was the reason for my amendment and if he can give any further assurances I will welcome them.
I welcome his amendment generally, because I think that it is helpful, and I also welcome Amendment 47. I did not have the technical considerations in my mind when I tabled this amendment at Committee stage. It was a much broader matter, but whatever the reason I am glad to see the paragraph going.
Can I ask the Minister a little more about Amendment 8? In the letter that he sent to your Lordships following the last stage giving the thinking behind all these amendments, which was very helpful, he said that in providing that an individual must stay within the premises,
“This is therefore a clarifying amendment. This is important for monitoring, enforcement and disruption purposes”.
Can I ask what is meant by “disruption” in this context? I would have expected that surveillance would be adequate to cover an individual being in the back garden. Presumably surveillance is going to be done largely through technology rather than through a pair of binoculars. Is there not electronic surveillance? Is it a matter of disrupting communications? If he is able to add a little flesh to that I would welcome it.
I am grateful to the Minister for his comments on my Amendment 14, which I will not seek to move when the time comes.
My Lords, I hope that I can deal with my noble friend’s points. I am grateful to her for her comments. She asked whether it would be open to the police officer to direct reporting times. The point behind my amendments was that the Secretary of State would deal with such times. That would be in the order. Further directions may be given by the police in relation to someone coming to the police station but the times would be a matter for the Secretary of State.
As regards Amendment 8, we need to be able to disrupt any potential terrorist activities. For that reason one would not wish the individual to be able to leave the house and enter the garden at certain times as it might allow communication to take place on which it is not so easy to keep an eye. That was the reasoning behind government Amendment 8. I hope I have explained that clearly. If I have not, I will write to my noble friend in due course.
Amendment 8 agreed.
9: Schedule 1, page 24, line 12, leave out “or area”
My Lords, in moving Amendment 9, I wish to speak also to Amendments 10, 11, 12, 20, 40, 42, 43 and 44. All these amendments, which stand in my name and that of the noble Baroness, Lady Stern, follow on from debates held in Committee. None challenges what I think is fashionably called the architecture of the Bill. All seek to ensure that within the framework of the Bill, and without harming the effectiveness of measures, TPIMs have regard to their impact on the individual, who has not been charged, let alone found guilty of any offence—in other words, under our legal system, he is innocent—and on his family.
I have spoken previously about the need to recognise the individual person at the centre of any proposed measure. This is a matter of human responsibility. The restrictions imposed through control orders have been very considerable and in some cases very damaging. I acknowledge and welcome the Government’s efforts to reduce the restrictions and to write legislation in a different way, spelling out the limits of restrictions, but there is still potential for a lot of damage. I suspect that, to an extent, this may depend on how a particular measure is applied. I welcome the assurances that the Minister gave at the previous stage but wish to pursue a number of matters a little further.
I mentioned the individual but, of course—the noble Lord, Lord Newton of Braintree, mentioned this—it is also a question of the individual’s family. It is difficult to imagine the impact of such a measure on children, wives—I have heard of at least one wife who has attempted suicide more than once—and the community in the widest sense. This aspect is in my mind directed also at the effectiveness of TPIMs in avoiding taking measures that may tip the individual, his more extended family, friends, acquaintances and associates into the very sort of action which the Bill seeks to prevent. There are restrictions on association and communication and I worry that they could have that effect.
Amendment 9, which would leave out the words “or area”, is to probe what might be an area of a specified description. Presumably it is not a place specified by geographical co-ordinates, nor somewhere like Manchester city centre, as they will be covered elsewhere in paragraph 3(1)(a). Nor is it somewhere like an internet café or an airport which one could understand the Government would want to see restricted, because they are places, not areas, and so would fall under the other paragraph. Could an area of a specified description be a city centre? That seems very wide, so I am asking for clarification of this term and how the restriction might be applied.
Can the Minister also give an assurance that the exclusion would not be of a huge geographical scope? I welcome an exclusion measure which is this way round, instead of listing the places at which an individual can visit and excluding the rest, but nevertheless I would like to be a little clearer about this provision.
Amendment 10 would leave out from paragraph 4(2)(a) of Schedule 1 the term “specified measures” and insert,
“measures specified under this Act”.
This was an amendment which I tabled in Committee but I think both the Minister and I overlooked the fact that it had not had an answer, and I am grateful to him for contacting me in the interim. However I think that an explanation of the term should be on the record, and that what I have understood as being measures specified under this Act is in fact what is meant.
In Amendment 11 there is an exception for a financial adviser. It occurred to me that other professionals might hold funds belonging to the individual—a solicitor might hold money in a client account—so can the Minister tell the House how this will be dealt with? There is a provision for a specified value threshold so I suppose that could be used to cover moneys held by a professional such as a solicitor, but again I would welcome an explanation.
Finally in this group, Amendment 12 probes what is meant by “specified descriptions of persons”. The more I thought about it, the less clear I was as to who these might be. They could be members of a proscribed organisation but they would be covered by other legislation. Presumably we are not talking about worshippers at a particular place of worship, nor would we be talking about people outside the UK, because as I read in paragraphs 8(2)(b) and 8(2)(c) of Schedule 1, they would be covered elsewhere. Can the Minister help me as to that provision?
I apologise to noble Lords that there is quite a lot a detail, which comes of large groupings, but the Whips always encourage us to group robustly. Amendment 20 would seek an assurance that all the circumstances to which the amendment applies are implicit in the Bill as drafted. We are dealing here with Condition D in which I say there should be,
“regard to all the circumstances”.
Condition D is about specified measures and I would like to be assured that what is necessary within the condition means that there will be proper consideration of the individual and his family circumstances and his likely reaction. I do not mean just irritation, I mean reaction in a much more substantial sense.
Following on from my amendment at the last stage about mental health review, I turn to a different approach. Amendment 40 provides for a general review group. In Committee, the Minister referred to the current Control Order Review Group which he said,
“is likely to continue in relation to TPIMs”.—[Official Report, 19/10/11; col. 346.]
I think it should be a statutory provision, and I hope that the Minister can take the opportunity to explain what is planned. I have assumed that the review group will be responsible to the Secretary of State with a regular reporting function. I have not attempted to spell out its remit other than to assist in the Secretary of State’s functions, because I think those functions are clear. Clause 11 requires her to keep Conditions C and D under review, but I would welcome an assurance about monitoring the impact of TPIMs to ensure they remain necessary and in proportion to the assessments, both of the individual and of the intelligence as to the security situation in general.
I have seen the terms of reference for the current Control Order Review Group which includes having to consider whether the orders are effectively disrupting an individual’s terrorism-related behaviour and the risk posed by that individual, and whether there are other options for managing or reducing the risk posed by the individual. I welcome those and I hope that those can be replicated under the new arrangements.
Finally—noble Lords may be relieved to know—Amendments 42, 43 and 44, which should be read together, will provide for independent oversight of individual measures. They are quite deliberately modelled on the Independent Police Complaints Commission because that seemed to the noble Baroness, Lady Stern, and me to be a good model for independent review. These provisions are actually lifted from the Police Reform Act 2002, although they are not as extensive. I decided not to test your Lordships’ patience by adding the detailed schedules which will be needed for operation. The IPPC reacts to complaints but it is essentially established to review, and because of that power, to prevent potential abuses of power, hence this proposal.
Appointees would be independent. I have excluded particular current and past office holders, and most importantly would have experience as well as appropriate formal qualifications, specifically in the care of persons deprived of their liberty and their families. There is a body of experience in how someone behaves in such circumstances. We should be aware that individuals may have been deprived of their liberty and indeed may have been tortured before the TPIM is applied. Controlees have included people who have been subjected to very extreme treatment overseas and that can result, to give one example, in an inability to engage in a discussion and to articulate the problems suffered by that individual.
Amendment 43 deals with the functions of such a commission. It would provide for treatment and specialist services, because this is a special category of people. I do not believe that an ordinary GP or indeed a psychologist or psychiatrist without such a specialism would have the necessary skills or experience.
Amendment 44 would require regular reporting both to the Secretary of State and generally.
During debate on the predecessor amendment at the last stage, the Minister said that case law on control orders and the duty of the Secretary of State to act within the convention rights mean that the impact of measures will be given appropriate consideration. I believe that we should look for something specific because we could avoid the very expensive court proceedings which we experience with control orders, because such proceedings are after the event and because this level of supervision is, in my view, right. I beg to move.
My Lords, I support these amendments so ably spoken to by the noble Baroness, Lady Hamwee, and I express my gratitude to her for the tremendous amount of detailed work that she has done on this issue.
As I made clear at Second Reading and wish to make clear again, I very much appreciate the approach that the Minister is taking to the Bill and the improvements to the current regime that have been introduced. However, the noble Baroness, Lady Hamwee, has reminded us very usefully that at the centre of this is indeed a human being, and his family, who is subject to very demanding requirements to go at certain times to certain places, not to go into the garden, as the Minister has just explained, and to be subject possibly to 12 months’ imprisonment for failing to conform.
Perhaps I may concentrate solely on Amendments 40 and 42 to 44. Amendment 40 expresses the wish for a continuation of—and, I hope, improvement to—the Control Orders Review Group, which arose after many, many discussions in this House on the earlier regime. I look forward very much to hearing some reassurance from the Minister on a review group for TPIMs. Amendments 42 to 44, which concern oversight and review, go further than a projected review group. The measures that we are discussing here clearly will not lead to a complete deprivation of liberty but they will undoubtedly have a profound effect on the day-to-day life of the person who is subject to them and the family of that person. They are not compatible with living a normal life as we know it. Although, as the Minister made clear earlier, they are indeed preventive, they will feel—to use the word chosen by the noble and learned Lord, Lord Lloyd of Berwick—punitive. Their effect is punitive, and that is why we need to consider the proposals in these amendments. The person who is subject to these measures will feel that he is being punished, and the people implementing the measure, who come from a law enforcement background and are familiar with punitive measures, will see that the person has had imposed on him measures that are, in effect, punitive. These measures will indeed affect the liberty of the person and they will also affect very directly the lives of that person’s family members, so the family will also feel that they are being punished. In all cases where we punish, we have systems in place to ensure that the treatment of those undergoing sanctions and measures is subject to independent inspection and oversight.
As the Minister will know, the UK Government have, to their great credit, been in the lead in promoting the Optional Protocol to the Convention against Torture—OPCAT for short—which requires that everyone deprived of their liberty should have their detention open to inspection by national and international inspectors who are independent of government so as to prevent ill treatment. This principle has been widely accepted and the optional protocol has been ratified by 61 countries. The UK Government, to their credit, were the third in the world to ratify it.
Accepting the principle that deprivation of liberty puts a human being in an environment where ill treatment is possible, health can suffer and urgent needs may not be met does not suggest for a moment that this always or regularly happens or that it will ever happen. However, it is an acceptance that that is always possible, and we want to ensure that it does not happen. It is an acceptance that deprivation of liberty puts an individual at risk of being at the receiving end of oppressive power. Here, I accept entirely that we are talking not about complete deprivation of liberty but about a substantial dose of it—enough to bring the measure within the purview of some independent oversight.
The Government would maintain their good record on OPCAT and on inspection of places of detention if they accepted these amendments. There is now independent oversight not only of prisons and immigration removal centres but of police cells, some military detention establishments, all places where children are detained and hospitals. These amendments extend that provision to people restricted by these measures, and I hope that the Minister will be able to consider this idea favourably.
My Lords, I am grateful to my noble friend and the noble Baroness, Lady Stern, for speaking to this fairly varied group of amendments. My noble friend said that she had grouped them together because the Whips were very keen on that process. I think that the Government are often keen on grouping things together because that can speed up debate, particularly when the amendments are essentially probing.
The noble Baroness is quite rightly seeking some reassurances and statements from the Government on what certain things mean. I shall work through the amendments in the order that they are tabled and shall try to satisfy my noble friend and the noble Baroness, Lady Stern, about what is meant and shall try to deal with their concerns.
I start with Amendment 9. My noble friend asked for clarification on what is meant by an “area of a specified description”. I confirm that allowing the Secretary of State—the Home Secretary—to impose restrictions in relation to both places and areas of a specified description is necessary to avoid unhelpful uncertainty about whether somewhere is most accurately defined as a place or an area. For example, it may be clear that airports qualify as places of a specified description, but it may be less clear that all the areas surrounding an airport, such as car parks, drop-off points or other areas connected to or adjacent to an airport, are captured. In conjunction with the rest of paragraph 3, the provision therefore gives the Secretary of State the required powers to restrict individuals entering places or areas where this is necessary for reasons of national security. Again, I can assure my noble friend that the scope of that area will not be what she described as a huge geographical area.
Turning to Amendment 10, I am happy to confirm that the power for a constable to give directions, as provided by the movement directions measure in Schedule 1, extends only to directions in relation to measures imposed under this Bill. This is because of the effect of Clause 30(1) and Clause 2. The result of these provisions is that the reference to “specified measures” in the movement directions measure is a reference to the terrorism prevention and investigation measures imposed under this Bill and specified in the TPIM notice.
In relation to Amendment 11, I can confirm that, for the purposes of the financial services measures in Schedule 1, “financial services” means any service of a financial nature. This includes banking and other financial services, but is not limited to them. Where paragraph 5 provides that the restriction on the possession of cash does not extend to cash held by a person providing financial services, it therefore includes financial services provided by members of other professions such as the noble Baroness herself, lawyers or estate agents. That would involve them holding money on behalf of an individual.
Amendment 12 would mean that the Secretary of State could not restrict the individual’s ability to associate or communicate with “specified descriptions of persons”. This provision is necessary because, in appropriate cases, it may be necessary, for example, to prevent the individual communicating, without prior permission, with persons living outside the United Kingdom. In such a case, it is not practicable or possible to specify all the named individuals to whom this applies. In the case of this particular example, I can reassure my noble friend that this would not prevent the individual seeking permission to speak to particular individuals, such as family members, who are abroad. The effect of the provision would be that the individual would need to provide further details about individuals with whom he wished to communicate in order to allow the Secretary of State to make an informed decision about whether to permit the communication.
In relation to Amendment 20—an amendment to Condition D in Clause 3—I can confirm that, as currently drafted, the legislation will require the Secretary of State to consider issues of proportionality as part of the consideration of the necessity of individual measures to be imposed under a TPIM notice. I can therefore assure my noble friend that the additional words that she suggests are not necessary in order to achieve the desired effect.
I turn now to Amendment 40. The noble Baroness’s amendment would add two new subsections to Clause 11. That clause currently simply requires the Secretary of State to keep under review whether Condition C—the necessity for measures—and Condition D—the necessity for specific measures—continue to be met. Amendment 40 would put on a statutory footing the requirement for a review group of officials to consider cases on a quarterly basis and to report to the Secretary of State. This review function is undertaken in the control order context by the Control Order Review Group. I can confirm that a TPIM review group will be established for the new regime to perform this function on a quarterly basis.
I turn finally to Amendments 42, 43 and 44. They build on proposals that my noble friend put forward in Committee. When debating my noble friend’s previous set of amendments in this area, I made the point that the measures that can be imposed under TPIM notices are intentionally more limited in nature than those that can be imposed under control orders, with lengthy curfews, compulsory relocation to another part of the country and total bans on communication equipment no longer allowed. I also made clear that the Bill as drafted—together with the relevant control order case law and the duty of the Secretary of State to act compatibly with convention rights—already ensures that the Secretary of State will give careful consideration to the impact of the measures on individuals and their families, including the impact on their mental health, before imposing the TPIM notice and while it remains in force. There will be, as of course it is right that there should be, careful and ongoing consideration of the impact of the measures on the individuals subject to them and on their families, including any impact on their mental health. This will be thoroughly considered as part of the regular reviews that will take place under Clause 11.
There is an extensive framework of judicial oversight and full appeal rights in relation to the TPIM notice, the measures specified in it and their impact. The individual will have the opportunity to make their own representations on these matters, including submitting assessments prepared by any person they wish. If a measure is considered to have a disproportionate impact, it will be revoked by the Secretary of State, and if it is determined by the courts to have such an impact, the courts will be able to quash it or direct its revocation or variation. We should also remind ourselves that the overriding purpose of the Bill is to protect the public from a serious and sustained risk of terrorism. It is therefore right that the Government should weigh their responsibility to protect the public heavily when considering the proportionality of their decisions.
The Home Secretary can be faced with difficult decisions when considering what restrictions are necessary and where to strike the balance of proportionality between the rights of the individual and the rights of the wider public to be protected from that person. The High Court has specifically accepted that an individual’s mental health does not automatically trump the national security case against him and the right of the public to be protected from the risk of terrorism. This serves to underline the difficult balancing act that will have to be conducted by the Home Secretary in each and every case.
The Home Secretary’s decisions are necessarily informed by sensitive information about individuals’ involvement in terrorism-related activity and the threat they pose to the public. It is this information that tips the other side of the scales and against which the impact of the measures must be weighed in order to arrive at a reasonable and balanced decision that accords sufficient weight to the need to protect the public. This information would not be available to the commission proposed by these amendments, but it will be fully taken into account by the courts and the Home Secretary when reviewing the ongoing necessity and the impact of the measures.
It therefore seems that the amendments put forward by my noble friend do not provide exactly the right balance. The approach I have outlined of careful ongoing review and rigorous judicial oversight strikes the right balance between protection of the rights of the individual and protection of the public from a risk of terrorism. It will ensure that the measures imposed are both necessary and proportionate. I hope the explanations of the earlier amendments and reassurances on the last three will be sufficient for my noble friend and the noble Baroness, Lady Stern. I hope my noble friend will feel able to withdraw her amendment.
My Lords, I certainly do not intend to press any of these amendments and I am grateful to the Minister for his explanations. I will comment on three of them. I am interested that a solicitor holding his client’s money might be providing financial services but am happy to accept that interpretation. On the first of the amendments, I take the Minister’s point about needing to use the correct terms, but I hope that every measure will be absolutely clear about the area as well as the place which is included—not, for instance, an “area around” or the “environs of” Heathrow Airport. If necessary, it would be proper for a map to be produced so that the individual as well as everybody else can be absolutely certain about what area is designated for this purpose. On the proposal for an independent commission, I am not seeking to challenge the architecture of the Bill and I am well aware of the court’s ruling that national security is not to be trumped. However, I hope that the Government and the new review group will take into account the points I have made, and the noble Baroness, Lady Stern, has made so powerfully, about, among other things, the need for an independent take on what is going on and to involve in the assessments people of experience and, where appropriate, non-members of the review group with that relevant experience. Having said that, and having thanked the Minister, I beg leave to withdraw Amendment 9.
Amendment 9 withdrawn.
Amendments 10 to 12 not moved.
13: Schedule 1, page 28, line 11, leave out from “individual” to end of line 13 and insert “—
(a) to report to such a police station, at such times and in such manner, as the Secretary of State may by notice require, and(b) to comply with any directions given by a police officer in relation to such reporting.”
Amendment 14 (to Amendment 13) not moved.
Amendment 13 agreed.
Clause 3 : Conditions A to E
15: Clause 3, page 1, line 16, leave out “the Secretary of State reasonably believes that”
My Lords, with the consent of the noble and learned Lord, Lord Lloyd of Berwick, I shall speak to Amendment 16, which is in my name and the name of the noble Lord, Lord Macdonald of River Glaven.
A TPIM notice may be issued under the Bill by the Secretary of State where she reasonably believes that an individual is or has been involved in terrorism-related activity. Amendment 16 seeks to substitute a test of balance of probabilities. The argument in favour of this amendment is very brief. If the Secretary of State is not satisfied on a balance of probabilities that an individual is involved in terrorism-related activities, surely there is no justification for taking these exceptional legal measures against him.
I asked the Minister on the first day in Committee, at cols 312 to 313 of Hansard, whether there would be any impediment to national security if the balance of probabilities test were to be adopted. The Minister did not suggest that any such conclusion had been reached in any of the reviews that had been undertaken. I remind your Lordships also that on the first day in Committee, at col. 301 of Hansard, the noble Lord, Lord Carlile of Berriew, with his extensive experience, said that he would have no difficulty if the balance of probabilities test were to be the test adopted in the Bill. I hope the Minister will be able to accept the amendment.
My Lords, I support the amendment spoken to by the noble Lord, Lord Pannick. It covers the same ground as my amendment, which would have amended Clause 6 by substituting civil standards of proof for “obviously flawed”. I agree with every word that the noble Lord, Lord Pannick, has said.
The great advantage of the balance of probabilities as a test is that it is flexible. At the more serious end, it approaches the criminal standard. There could hardly be a more serious finding to make against an individual, as has been said often today, than that he has been engaged in terrorist activity. Therefore, the burden of proof in these cases ought to approach the criminal standard. There is not the slightest justification for a burden of proof which is less than the civil standard.
With one exception there is no precedent that I can find in English law for a serious finding, such as is involved here, being made on the basis of reasonable belief. In the earlier debate I referred to many instances of prevention orders being made by the civil courts, some in serious cases such as sexual harm and so on, and in every case the burden of proof has been the balance of probabilities, and so it should be here.
My Lords, Clause 4 of the Bill indicates that the finding which will be made in relation to a TPIM is that an individual has been involved in,
“the commission, preparation or instigation of acts of terrorism”;
“conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so”;
“conduct which gives encouragement to the commission, preparation or instigation of such acts, or is intended to do so”;
“conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in”,
This is a very grave finding. As I suggested earlier, it is a finding which justifies a standard of proof on the balance of probabilities rather than reasonable belief. I support the amendment for the reasons that have already been set out.
My Lords, I, too, support the amendment. It was always a great source of regret and sorrow to me that during Labour’s years in government we saw an erosion of the standards of proof on many different fronts. I remember getting support from the Conservative Benches and agreement that erosions of the standard of proof were taking place. Therefore, this rather strange volte-face by the coalition Government has come as a surprise to me. I want the Government to think again about this erosion of the standard of proof. As noble Lords who have already spoken have said, the consequences are serious. This House should not contemplate having anything less than the balance of probabilities.
My Lords, I, too, support the amendment. Inevitably my argument relates back to what I said on a previous amendment, but it is absolutely crucial that we should have the maximum possible support across all communities for what is being done. If the Secretary of State is to have these great powers, which the House has reaffirmed today, then we must fall over backwards to ensure that justice is nevertheless seen to be done, and not just done. In that sense, it must be very convincing indeed when the Secretary of State acts. The amendment is wise and sensible. The absence of the provisions in the amendment again undermines the battle for the hearts and minds of the impressionable young.
My Lords, we have to bear in mind that as the Bill now stands, the initiator of this procedure is the Secretary of State with responsibility for national security. The Secretary of State has available to him or her all the information that the state can provide, including on a secrecy basis, on these matters.
When a court is deciding something, the balance of probabilities is a suitable standard because it is not expected to believe one thing or the other; it is to accept the balance of the evidence one way or the other. Requiring the Secretary of State to believe is a higher standard than the balance of probabilities. I cannot believe that the Secretary of State would be entitled, on a mere balance of probabilities, to come to the belief that this is what happened.
Of course, Secretaries of State might be rather special, and they might be able to come to a faith and belief without much in the way of evidence. However, that is taken care of by the language in the Bill as it stands, that the belief must be reasonable. So it is not only belief but a reasonable belief. In other words, the Secretary of State must have available to him or her information as a result of which he or she comes to be convinced that the person has engaged in the activities that the noble Lord kindly laid out for us. I agree that it is an extremely serious matter but the language in the Bill is suitable to a situation in which a decision has to be made, not by someone who has to review the evidence as an impartial judge but by someone who comes to the evidence with the executive responsibility to take the necessary action. In my view, this requirement that the Secretary of State should reasonably believe that the person in question has been involved in these activities, is a stronger and more reliable basis for going forward than a mere balance of probabilities. It is difficult to see how one could be convinced on the balance of probabilities alone.
The noble and learned Lord refers to a “mere” balance of probabilities. He will of course be aware of the many cases decided in the highest courts where what he calls a “mere” balance of probabilities can approach the criminal standard, specifically in cases such as these.
I agree with that and am very much aware of it, but it is still a mere balance of probabilities. Although it can go very close to the criminal standard, it is still a balance of probabilities that is being used, and I would say that the criminal standard requires a jury in effect to believe—to be sure—that this is what happened. I regard “reasonable belief” as a very strong and appropriate phrase to use where the person initiating the procedure is the person with the responsibility to have before him or her all the necessary material.
My Lords, having stuck my neck out first one way and then the other in the earlier part of our proceedings, I had decided to keep my head down on this one. I want to say to my noble and learned friend, given the views I expressed in the House earlier in the day, that he has made me feel better. It may be respectable to keep my head down, so I shall continue to keep it down.
My Lords, that was a very obvious keeping-down of the head, done in a rather energetic fashion.
I would like to raise a point which I raised—obviously rather ineffectively—at the last stage, and that is to ask why the Government make a different provision for the generality of the Bill than for the temporary power provided in Clause 26? Under that power, the Secretary of State can impose enhanced measures on individuals whom she,
“is satisfied, on the balance of probabilities, are, or have been, involved in terrorism-related activity”.
It does not seem to me that the answer to that question can be that the situation is different. The urgency of the situation—with Parliament not sitting and, as I understand it, a heightened state of security—relates to the ability of the Secretary of State to make an order. However, the balance of probabilities relates to the individual, not to the overall situation.
I am glad to see the noble and learned Lord, Lord Lloyd, nodding. I too feel better now, as it is obviously not a completely stupid question. I do not see where the distinction comes, as we would still be considering individuals. It may be that the noble and learned Lord, Lord Mackay, has answered the question for the Minister, I do not know.
I am just wondering whether the Opposition want to comment on this matter.
It is very important to start by reminding the House what we have under control orders, what we are proposing and what the amendment proposes. Under the control orders, the standard of proof was a “reasonable suspicion” by the Secretary of State. We considered this, as your Lordships are well aware, in the counterterrorism review, and it was concluded that it was necessary to raise the test of involvement in terrorism-related activity from “reasonable suspicion” to “reasonable belief”. Reasonable belief is considerably stronger than reasonable suspicion, as my noble and learned friend Lord Mackay has said. We have raised that standard, as is right and proper. It will provide an additional safeguard, and is consistent with the approach taken in the Terrorist Asset-Freezing etc. Act 2010.
It is obviously a matter where we have to consider proportionality and the appropriate balance. Again, I have to weary the House by stressing the need for that balance. We consider that a change to reasonable belief will not be prejudicial to national security. It is right that the Secretary of State should be able to take action to protect the public in circumstances where she reasonably believes that an individual has been involved in terrorism-related activity and the measures are necessary. I was grateful for the support of my noble and learned friend in this matter.
It was right to raise the standard of proof to reasonable belief, but we do not believe that it is necessary to go as far as a balance of probabilities, which might be a more appropriate action if this amendment had been considered at the same time as the first amendment we debated and if this were a matter for the courts to decide. As it is, this is a matter for the Home Secretary to decide, and we believe that this is the right action and that a move to a balance of probabilities would provide the wrong balance for the main TPIM regime in terms of ensuring that the public will be protected.
My noble friend Lady Hamwee went on to mention the enhanced TPIM Bill. That is a different matter where we are obviously considering much more draconian measures should they ever, sadly, be necessary. That is something that will be considered in due course by this House and another place as part of the scrutiny of the draft legislation. For this Bill, we believe that getting the balance right means sticking with reasonable belief, which is a considerable improvement on reasonable suspicion. I hope, therefore, that the noble Lord, Lord Pannick, will feel able to withdraw his amendment on this occasion.
My Lord, I do feel able to withdraw this amendment. I do so in particular because the noble and learned Lord, Lord Mackay of Clashfern, tells the House that reasonable belief, in the circumstances, is a stronger test than balance of probabilities. I beg leave to withdraw the amendment.
Amendment 15 withdrawn.
Amendments 16 to 22 not moved.
Clause 5 : Two year limit for TPIM notices
Amendment 23 not moved.
Clause 6 : Prior permission of the court
Amendments 24 to 26 not moved.
Clause 7 : Urgent cases: reference to the court etc
Amendment 27 not moved.
Schedule 2 : Urgent cases: reference to the court etc
Amendment 28 not moved.
Clause 8 : Directions hearing
Amendment 29 not moved.
30: Clause 8, page 4, line 14, after “which” insert “, unless the court otherwise directs (whether in those directions or subsequently),”
Amendment 30 agreed.
31: Clause 8, page 4, line 17, leave out subsection (3)
Amendment 31 agreed.
Amendments 32 to 35 not moved.
Clause 9 : Review hearing
Amendments 36 to 38A not moved.
39: After Clause 9, insert the following new Clause—
“Time limit on measures under section 2
(1) Measures imposed under section 2 shall remain in force for the period of one year, or such lesser period as the court shall determine.
(2) Measures may be renewed for a further period of one year, and no more, on a further application to the court if the court is satisfied on the civil burden of proof that the individual has been involved in terrorist related activity since the imposition of the original measures.”
My Lords, very briefly, Clause 5 enables the Secretary of State to renew measures for a further year if conditions A, C and D are satisfied. He does not need to be satisfied of condition B, that there has been fresh terrorist activity during the first year. Amendment 39 has two separate purposes. First, it requires the Secretary of State to be satisfied of fresh terrorist activity during the first year before he automatically renews for the second year. Secondly, it places an absolute limit on renewal of two years. It cannot go beyond that.
Curiously enough, this amendment might have received some support from the noble Lord, Lord Carlile of Berriew. If I remember correctly, it was his view that somebody who had been subject to a control order for two years would have little further potential use as a terrorist. He was rather minded to pose—or had some sympathy with posing—a limit of two years on the extent to which these measures can be renewed.
The Minister said at an earlier stage that it is not the Government’s intention to use measures of this kind to warehouse individuals who are suspected of being terrorists. Yet, as we know, they have been warehoused—if that is the right word—for periods of three, four and five years without ever having been charged or tried. That is happening now. The purpose of this amendment is to ensure that that does not happen in future. There should be a final limit of two years. I beg to move.
My Lords, very briefly, this amendment seems to provide for a TPIM to remain in force for no more than a year or a lesser period determined by the court. It also provides that the measures may be renewed for a period of no more than one further year if, on application to the court, the court is satisfied on the civil burden of proof that the individual has been involved in terrorist-related activity since the imposition of the original measures. If that is correct, our view is that those considered to be engaged in serious terrorist activity are not often likely to have so changed their intentions within a period of 12 months. For that reason, it would not be appropriate to end the order. The amendment suggests that it would be, unless there was evidence of further terrorist-related activity. If we understand the amendment correctly, our view is that it would detract from the ability to protect the public. We are not inclined to support it.
My Lords, I get the impression that the House wishes to move on. I never understand these things—I do not know whether the noble Lord, Lord Hunt, wishes to go out for dinner or whatever—but I will endeavour to be relatively brief.
I was amused for the second consecutive amendment as first the noble Lord, Lord Pannick, and then the noble and learned Lord, Lord Lloyd, cited my absent noble friend Lord Carlile as being a likely supporter of their amendments. It is easier to make these assertions in his absence. We will invite my noble friend to look at Hansard in due course and decide whether he necessarily agreed with the noble Lord or the noble and learned Lord. I just say that in passing.
I thank the noble and learned Lord for his explanation, which would obviously change the provisions relating to the period for which a TPIM notice can have effect. I will set out our thinking on this issue. In his model, there would be a requirement for new terrorism-related activity to have taken place while a TPIM notice is in force, in order to allow that TPIM notice to be extended into a second year. Again I must dare to use the word “balance”. We do not think that this strikes the right balance in the context of preventive orders of this kind. Indeed it would undermine the ability of the Government to protect the people of this country from a risk of terrorism.
The counterterrorism review carefully considered the issue of time limits and how long restrictions such as these should remain in force on the basis of the same evidence. It concluded that extension of a TPIM notice for a further year should only be allowed on one occasion if the notice continues to be necessary in order to protect the public. After that one extension—up to two years—new evidence would be required to impose a new TPIM notice. That is a significant move away from the position in control orders, which can potentially be renewed indefinitely on the basis of the same evidence where the control order remains necessary.
We are of the view that the ongoing necessity for the notice can be made out for a second year on the basis of the original terrorism-related activity. This is particularly so where that activity is very serious, suggesting that the individual’s mindset and intentions, perhaps to do serious harm, will not have changed after just one year subject to restrictive measures. Indeed, there are many court judgments in the control order context confirming that, for the purposes of public protection, ongoing necessity is not dependent on new terrorism-related activity since the imposition of the control order. We do not believe that the new terrorism-related activity should be required in order to extend the original TPIM notice for that one year.
While the Government’s view is that TPIM notices should not be used to warehouse people, and should not be imposed indefinitely on the basis of the same evidence—as can happen under control orders if the statutory test continues to be met—a notice that can only last one year without evidence of new activity undertaken while subject to the measures will not be sufficient to disrupt the threat posed by the individuals concerned in many cases.
Again I come back to the question of balance. We believe that the balance is about right in what we propose—that is, one year with the ability to extend it for another year. If there is to be any extension beyond that, we need new evidence of terrorist-related activity of one sort of another, as set out in the Bill. The limits proposed by the noble and learned Lord’s amendment shift the balance too far the other. I hope that he will be happy to withdraw his amendment on the basis of that explanation of balance.
Amendment 39 withdrawn.
Clause 11 : Review of ongoing necessity
Amendment 40 not moved.
Clause 11 agreed.
Schedule 4 : Proceedings relating to terrorism prevention and investigation measures
Amendment 41 not moved.
Schedule 4 agreed.
Amendments 42 to 44A not moved.
Clause 23 : Offence
Amendments 45 and 46
45: Clause 23, page 15, line 8, leave out paragraph (b) and insert—
“(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both;(ba) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both;”
46: Clause 23, page 15, line 13, at end insert—
“( ) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (3)(b) to 12 months is to be read as a reference to 6 months.”
Amendments 45 and 46 agreed.
Clause 26 : Temporary power for imposition of enhanced measures
Amendments 47 and 48
47: Clause 26, page 17, line 32, leave out paragraph (a)
48: Clause 26, page 17, line 38, at end insert—
“(12) The Secretary of State must obtain the consent of the Scottish Ministers to the inclusion in a temporary enhanced TPIM order of any provision—
(a) which would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament, or(b) which otherwise confers functions on the Scottish Ministers.(13) But subsection (12) does not apply to any provision of an enhanced TPIM order which—
(a) applies (with or without modifications) an enactment contained in, or amended by, this Act, or(b) otherwise corresponds to such an enactment.”
Amendments 47 and 48 agreed.
Amendment 49 not moved.
Clause 27 : Section 26: supplementary provision
Amendment 50 not moved.
Amendment 51 not moved.
Clause 31 : Short title, commencement and extent
Amendment 52 not moved.
53: Clause 31, page 21, line 35, at end insert—
“( ) This Act expires at the end of the period of 1 year beginning with the day on which it commences.
( ) The Secretary of State may, by order, revive the Act if a draft of such an order is laid before and approved by an affirmative resolution of both Houses of Parliament.
( ) An order under this section expires a year after the day on which it is made.
( ) An order made by the Minister under this section is to be made by statutory instrument.”
My Lords, your Lordships have come to the final amendment on Report. Amendment 53 in my name and in the names of the noble Baroness, Lady Hayman, and the noble Lord, Lord Hunt of Kings Heath, would require an annual review of this legislation in Parliament as is currently the case with control orders.
Our debates at Second Reading, in Committee and today on Report have confirmed that the Bill addresses a fundamentally difficult problem for a free society, which is afflicted by the scourge of terrorism. The Bill, regrettably but necessarily, confers powers on the state to impose substantial restrictions and detriments on persons suspected of involvement in terrorism but against whom no proceedings are brought in the criminal courts. These orders will be imposed by the Secretary of State as an administrative matter, given that your Lordships rejected the amendment proposed by the noble and learned Lord, Lord Lloyd of Berwick. On any view, these are exceptional measures in a free society.
It is vital that the continuing need for such exceptional measures be examined every year. This will serve three important purposes. First, it will impose a discipline on Government. Civil servants and Ministers will need every year to consider the continuing case for the provisions and they will need to defend them in Parliament. Secondly, this will provide a means by which the continuing need for the measures can be explained to the public every year, and in particular to those sections of the community that are doubtful as to the need for the measures and their fairness. Thirdly, of course, it will give us—Parliament—an opportunity to express our view every year as to whether the measures continue to be justified. Both your Lordships’ Constitution Committee, of which I am a member, and the Joint Committee on Human Rights have supported the amendment. Indeed, your Lordships’ Constitution Committee in its Report questioned whether it is constitutionally appropriate not to have annual reviews of what it described as a scheme of “extraordinary executive powers”.
In Committee on 1 November—I refer to Hansard cols. 1131-1132—the Minister made three main points. First, he said the Bill contains adequate protection because it provides for a sunset clause after five years. However, 2016 is a long way away, and annual reviews are needed for all the reasons I have given. Secondly, the Minister said the Bill is the product of detailed scrutiny and has struck the right balance in its substantive provisions. The point is that the Bill contains exceptional measures, the need for which will depend on the nature and extent of the threat posed at any particular time. However confident noble Lords may be that the contents of this Bill strike the right balance, this is a context where annual scrutiny is essential. Thirdly, the Minister emphasised that the Secretary of State has power under Clause 21(2) to repeal the powers. However, that is no substitute for an annual obligation on Ministers to come before Parliament so that we can debate, and Ministers can explain to us and to the wider public, whether these wholly exceptional measures are still needed. I beg to move.
My Lords, the noble Lord, Lord Pannick, has spoken with his usual clarity and force and that means I can be very brief. It was the issue of time limiting the provisions of the Prevention of Terrorism Act 2005 that six years ago brought me into conflict with my then own—and then government—Front Bench. I am delighted that the noble Lord, Lord Hunt of Kings Heath, has put his name to the amendment. I have to say, however, that like the noble Lord, Lord Newton, I was disappointed at his attitude on Amendment 1. He invoked the principle of consistency. I think he ought to be careful about that when we review this particular amendment, given that the Labour position then on time limiting was consistently to oppose any form of time limiting on the 2005 Act until two thumping defeats in this House and some fairly vigorous ping-pong.
My Lords, I have always felt that consistency was a dangerous principle for politicians to invoke. I make a serious point here. Of course there is a virtue in consistency, but there is also a Galbraithian view on thoughtless and mindless consistency. I have always felt that the overwhelming obligation for politicians was to be willing and able to justify their inconsistencies as well as to have underlying consistency of principle. However, this is all by way of an aside and I hope the House will at least feel that I am consistent in my view.
As the noble Lord, Lord Pannick, has said, when we are departing from the normal procedures and principles of the criminal law—and there are reports of various committees, both Joint Committees and committees of your Lordships House about the exceptional nature of the provisions in the Bill—there is an obligation upon us as parliamentarians to keep that under review, and always be willing to reassess what we have done and how we have done it.
In the words of the noble Lord, Lord Faulks, in our debate in Committee—I hope that I am not paraphrasing him—we have got it basically right in the Bill and there is no point in having an annual squabble about it. However, I do not see this as an annual squabble. I see it much more as the noble Lord, Lord Pannick, did, as the opportunity to reassess both the need and the efficacy of what we have put in place. These are difficult balances to strike. We do not get them right and perfect every time. There is a discipline imposed by Ministers having to justify each year the continuation of provisions that all of us recognise as important and exceptional and departing from principles that are equally fundamental to how we conduct ourselves as a society.
I feel very strongly that it is not an overwhelming burden to put on Ministers to ask them to have the respect for Parliament and the recognition of the departure from the norm that the measures in this Bill contain once a year, to reassess and bring before Parliament a renewal order that asks whether we have got it as good as we can get it. Therefore, I hope that the House will support the amendment tonight.
My Lords, I would like warmly to support this amendment. It is absolutely clear that this procedure is a very special one, outside the ordinary system of courts of law and the like. It is justified on the basis of need by those familiar with the terrorist threat that our nation faces. In the nature of things, that threat must vary, and it must be right that this Parliament should have an opportunity annually to review such special procedures as these. However satisfied we may be—and, obviously, different people will be satisfied to different levels whether the balance is right—it is an altogether exceptional procedure.
The noble Lord, Lord Judd, said earlier that justice must be seen to be done. This is not a procedure in which that is going to happen; in the nature of the procedure, it does not have that characteristic. Therefore, it is highly important that we have a provision that enables us to review each year whether or not this type of procedure is still necessary and efficacious. I agree with everything that the noble Baroness, Lady Hayman, said about this. I found valuable her exposition of how politicians should be consistent, and if they happen to be inconsistent they should have an explanation for it—not just that they have changed sides.
My Lords, I support the amendment for reasons already advanced. For my part, I have no desire at all to see this sort of scheme become a normal and conventional part of our legal arrangements; it is not, for all the reasons that noble Lords have repeatedly advanced this afternoon. It is an exceptional scheme, and it is important that it continues to be seen as such. The amendment lays it bare; it mandates appropriate and continuing scrutiny, engaging the regular attention of this House and providing reassurance that these measures will not continue for a moment longer than they are required or necessary. A strong part of providing that reassurance will be annual scrutiny by this House of the continued necessity for such a scheme as is undoubtedly going to pass into law.
My Lords, I, too, support the amendment. I am not going to take up the time of the House, because I think that the arguments are simple. It is about the exceptional nature of this shift, which requires us to keep it under scrutiny. I remember having conversations with colleagues when we were discussing control orders, and hearing repeated over and over again in this House how important it was that liberty is maintained and that requires eternal vigilance. That is why when you depart from the norms that are in our system you have to have them under review as often as yearly.
I know that the Minister speaks passionately about liberty—I have heard him do so. I remind him that that vigilance requires that we keep this constantly in front of us, and I think that once a year is not asking too much.
I have three prefatory remarks. First, I apologise to one of my noble friends, to whom I had given the impression that I might simply pack up my tent and go away. Actually, I got so interested that I am still here—and from that she will know that I may not be as totally supportive as she would like.
Secondly, I would just like to say what a joy it is that the noble Baroness, Lady Hayman, is now back in our deliberations rather than presiding over them as Lord Speaker, and to say how good a speech she made alongside that of the noble Lord, Lord Pannick, in supporting the amendment. I will not follow her down the line of discussing obstinacy versus consistency as a virtue, but I am bound to say that one thing that I have observed in government over the years is that when consistency becomes obstinacy, which is what happens on too many occasions with politicians, it is a danger and not an asset.
Thirdly, I would say to my noble and learned friend Lord Mackay, who I was very keen should speak before me, that he has again given me a greater cloak of respectability than I normally have on these occasions. The House will realise from that that I agree entirely with what my noble and learned friend said, and I hope the Government will think again about this, as the case is clear, compelling and strong.
My Lords, personally, I have the unease that in all that we have done with these special arrangements there is a danger that historically we will have proved inadvertently—maybe—to have given a victory to the extremists and terrorists, because we have abandoned in this area of the administration of justice the principles that we hold dear and believe to be fundamental to our whole system of society and law.
It is absolutely essential that the Executive have to demonstrate all the time why such a risk must be taken and why it is necessary to have these exceptional measures. For that reason, the responsibility is always with the Executive to justify what is being done and therefore to review the process at least once a year is the very least that we can settle for.
My Lords, consistency has become something and since I opposed this amendment on the last occasion I intend to be consistent in opposing it on this occasion.
Of course, the arguments are extremely beguiling in favour of an annual review. Any provision which threatens the liberty of the subject demands anxious consideration at every level. But there is a difference between what happened in 2005 and what we are confronted with today. I am sure that those who brought in those provisions—those exceptional and extraordinary measures—hoped that they would not be necessary for more than a short period. Unfortunately, that has not proved to be the case. This Bill is the result of a careful and thorough review of counterterrorism and of mature reflection by a number of people that, sadly, powers of this nature need to remain. There have been important modifications to these powers, including the higher threshold for the Secretary of State before deciding that there should be such provisions and the removal of the relocation measures. There has been a degree of sensitivity over how potentially extreme the provisions are, but the legislation has been the result of a mature consideration and has been scrutinised in a thoroughly orthodox way through both Houses of Parliament. It has not been the result of an accelerated procedure.
I respectfully suggest, although entirely appreciating the arguments that such provisions need regular review, this has had a thoroughgoing review. It can be reviewed again after the end of this Parliament, and I respectfully ask the House to consider rejecting the amendment.
My Lords, the noble and learned Lord, Lord Lloyd of Berwick, expressed a certain weariness when he spoke on this issue in Committee. I do not think that he used the words “ritualistic” or “formulaic” but that may have been what he had in mind when he referred to the way some of the control order debates seemed to be going. I share that concern, but it leads me to say that we should make sure that renewal of this provision is not ritualistic or formulaic. We should take care to avoid that. However, it is not an argument for saying that we should not undertake that renewal.
We will, I am sure, be told by the Minister that we can debate the issue at any time that any of us succeeds in putting down a debate, and that the Government could repeal TPIMs at any time. Neither of those claims is an answer to the points that have been made. I urge the Government, if they lose the Division that is about to come, to turn it into a virtue and explain annually why it is that any renewal is required. The term “trust” was used quite a lot at an earlier stage in this Bill. Trust does need to be renewed, as well as everything else, to take both your Lordships’ and the country with them. The Government should regard this as an opportunity, not something that should be pictured in any way as a defeat.
My Lords, I will be brief. Our own Joint Committee on Human Rights said that the TPIMs remain,
“an extraordinary departure from ordinary principles of criminal due process”.
It went on to recommend that the Bill should also,
“require annual renewal, and so ensure there is an annual opportunity for Parliament to scrutinise and debate the continued necessity for such exceptional measures and the way in which they are working in practice”.
Your Lordships’ Constitution Committee, as the noble Lord, Lord Pannick, said, also questioned whether it was constitutionally appropriate for the extraordinary executive powers involved in TPIMs to remain in being for a lengthy period of time. Whatever one’s views on the need for TPIMs, these are considerable and exceptional measures, and it is surely right and appropriate that Parliament should—as happens currently with control orders—continue to have the opportunity and the duty to decide each year whether the situation remains such that the measures in this Bill and the associated powers should continue in being or instead be allowed to expire.
The fact that debates on the Bill are taking place now does not affect the necessity and appropriateness of proper consideration each year by Parliament of whether the circumstances remain such that these powers, and the way in which they are used and operated, are still needed for a further period of time. It remains to be seen whether the Minister’s position has changed on this issue, but if the noble Lord, Lord Pannick, decides in the light of the Minister’s reply to test the opinion of the House, we should support his amendment.
My Lords, perhaps I may say how grateful I am to the noble Lord, Lord Pannick, for setting out his amendment and explaining it so carefully. I am also grateful that he set out the arguments I put forward both in Committee and at Second Reading. I will go through them again because I think that the House would like to hear them, and I might be able to persuade noble Lords of the merits of my position. I will not follow the second speaker in the debate, the noble Baroness, Lady Hayman, in her strictures to her own former Front Bench about consistency. I will leave that as an internal family matter that they can sort out among themselves. Consistency is important on some occasions, but that is a matter for the noble Lords, Lord Hunt and Lord Rosser, to consider in due course.
It is important that I set out the Government’s views on why we think it is not necessary to go to an annual review, as opposed to the five-year review that we are proposing. I will set out the argument on three major grounds, more or less as the noble Lord, Lord Pannick did. First—that dread word—we believe that renewal every five years strikes the right balance. It reflects the need to build in effective safeguards to ensure that powers do not remain in force longer than is necessary. It also reflects the competence of Parliament to apply intense scrutiny to legislation—no one can say that this legislation has not had intense scrutiny, and it has not been emergency legislation as on previous occasions—and to arrive at a position that will not need to be reviewed annually. Each new Parliament will have the opportunity to debate this view in the context of the situation at the time and to take its own view. This is in line with the length of Parliaments provided by the Fixed-term Parliaments Act.
Secondly, we believe that annual renewal is unnecessary. The Bill has been subject to full parliamentary scrutiny with the usual timetable allowing for a settled position to be reached. As I stressed earlier, by contrast the control order legislation had to be, necessarily, rushed through with very little opportunity for debate, although there was considerable debate in this House. That made annual renewal an appropriate safeguard for the 2005 Act. Admittedly it was a safeguard that was initially opposed—as the noble Baroness, Lady Hayman, reminded us—by the Government at the time, but it is one that is not necessary in respect of this Bill.
I stress that there are other significant forms of oversight and scrutiny. There will be the annual report by the independent reviewer of terrorism legislation; there will be quarterly reports to Parliament by the Secretary of State—she must report quarterly on the exercise of these powers under the Act—and there will be the usual post-legislative scrutiny which requires a detailed memorandum on the operation of the Act to be submitted to the relevant departmental Select Committee and laid before Parliament. As we discussed when debating many of the earlier amendments and all earlier stages of the Bill, every individual TPIM notice will be carefully scrutinised by the courts.
Thirdly, I stress again—this point was raised by my noble friend Lady Hamwee and others—that there are other means by which the Bill can be amended or repealed. There is an order-making power to repeal the TPIM powers, and if it becomes clear that the powers are no longer needed—we would all welcome that occasion if it should happen—it will be possible at any time during each five-year period for the Home Secretary to repeal the powers by order. If it becomes clear that the powers should be changed, the legislation can be amended by Parliament at any time in the usual way.
We do not, therefore, believe that an annual renewal is necessary. We think a five-year review of these matters strikes the right balance. I appreciate that other noble Lords who have taken part in the debate have strong views on the matter and I understand the concerns of the noble Lord, Lord Pannick. However, I hope—although I doubt very much—that what I have said might persuade him on this occasion to withdraw his amendment.
My Lords, first, is it fundamental to the Bill being put before Parliament that the Secretary of State believes, at this moment and in the light of the information that she has, that the Bill is essential? Secondly, if that is the basis of the Bill being put before Parliament, can she say whether in a year’s time, after it passes, the situation will be the same?
My Lords, the important point is that the Bill is the result of the counterterrorism review that my right honourable friend the Home Secretary initiated and which she reported on earlier this year. Following the review of counterterrorism legislation we came forward with the Bill and other parts of the package that we discussed at earlier stages. My right honourable friend therefore believes, as do I, that the Bill is fundamentally necessary at the moment. However, she has given herself a power, if she feels that the Bill is no longer necessary, to withdraw it. That power is set out in the Bill; I suppose that it is a Henry VIII power which many people would welcome on this occasion, but we would only withdraw the Bill if we felt that it was no longer necessary.
What I was saying, if the noble Lord will allow me to continue my argument before he intervenes, is that we do not think that an annual review of this by Parliament is necessary: once during each Parliament should be sufficient. However, as I made clear, other reports from the independent reviewer and from my right honourable friend will come before Parliament to inform debate on these matters.
All I wanted to say to the Minister was that while he referred to a Henry VIII clause, he might also have reminded his noble and learned friend of the other Henry VIII clause, which allows the Home Secretary in certain circumstances to go back to control orders.
My Lords, I am disappointed by the Minister’s response, although I admire his powers of advocacy in what I regard as a hopeless cause. This is an exceptional Bill. I am sorry that the Minister feels unable to respond to the wisdom and experience of other noble Lords who have spoken in the debate. The noble Baroness, Lady Kennedy of The Shaws, spoke of eternal vigilance. I hope that your Lordships will at least agree that annual vigilance is essential in relation to this Bill. I wish to test the opinion of the House.