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The Minister of State, Home Office (Lord Henley)
My Lords, protecting the public from terrorism will always be the top priority of the Government and we will do nothing to jeopardise the safety of our citizens. We are committed to ensuring that the police and others have the powers they need to tackle terrorism, but we are also committed to ensuring that there is a correct balance between state powers and the civil liberties of individual citizens. One does not preclude the other. Public safety is enhanced, not diminished, by having appropriate and proportionate powers.
We believe that the previous Government got that balance wrong and introduced laws that were unnecessary, ineffective and damaging to the long-held traditions of liberty in this country. That is why one of the first things we did was to carry out a comprehensive review of the most controversial counterterrorism and security powers. The outcome of the review was announced in January of this year. The review benefited considerably from the independent oversight provided by my noble friend Lord Macdonald and from the input of a wide range of organisations and individuals, including my noble friend Lord Carlile. Both noble Lords will speak later in the debate. As a result of the review, we reduced the maximum period that terrorist suspects can be held before charge from 28 to 14 days, and we replaced the stop and search powers in Section 44 of the Terrorism Act 2000 with a significantly more circumscribed regime. We are making other important changes as part of the Protection of Freedoms Bill that is currently in another place.
The Government have already done much to deliver on their commitment to restore the balance between civil liberties and state powers, but we are also clear that we have an overriding duty to protect the public and to uphold their values and defend their way of life. That is why the most difficult issue faced by the review was what to do with control orders. It is clear that the current threat from terrorism remains serious and will not diminish in the foreseeable future. It is also clear that in this country there are, and will continue to be, a small number of people who pose a real and immediate terrorist threat but who cannot be successfully prosecuted or deported. The difficulty for the review was how we could protect the public from the threat posed by these individuals while ensuring that they can lead as normal a life as possible. The results of our deliberations are reflected in the Bill before us.
The Terrorism Prevention and Investigation Measures Bill will repeal the control order regime contained in the Prevention of Terrorism Act 2005 and replace it with more focused and targeted terrorism prevention and investigation measures. The so-called TPIMs will be supported by significant extra resources for the police and security services to increase their covert investigative capabilities. This approach mitigates the risk we face in a more balanced way than control orders, but does not undermine the protection provided to the public. The prosecution and conviction of those involved in terrorism will always be our top priority. However, where prosecution is not possible, we cannot allow such individuals to continue with their activities. That is why the TPIM Bill will enable us to place restrictions on the individuals involved.
I turn now to some key measures in the Bill. In Clause 1, the Bill abolishes control orders and establishes the new TPIM regime. This enables the Secretary of State to impose specified measures on an individual by means of a TPIM notice. The details of the requirements and restrictions that can be specified are set out in the first schedule to the Bill.
Setting out in detail the nature of the measures that will be able to be imposed—including clear limits on those measures—is central to our approach. Under control orders there are very few limits on what types of measures can be imposed. Now, there will be a very specific list of the potential measures available, which is a more transparent approach. It also means that the types of measures that are available will have been specifically approved by Parliament. This is right—it should be for Parliament, not the Executive, to decide what types of measures can be imposed.
The Bill establishes 12 types of measures that can be imposed. These include: an overnight residence requirement; a travel measure, primarily to prevent travel outside the United Kingdom; an exclusion measure, to prevent individuals entering specified areas or places; a financial services measure; an electronic communication device measure; an association measure; a reporting measure; and a monitoring measure.
The overnight residence requirement is not the same as the curfew requirement that is available under control orders. Such curfews can be for up to 16 hours a day and can cover any point in the day. Our intention is not to force individuals to remain in their homes during the day, when they would normally go out to work or to study, but to ensure that they are in their homes overnight. The Bill makes clear the limits of the restrictions that can be imposed—for example there is no power in the Bill to relocate an individual to another part of the country without their consent; and under the electronic communication device measure, it is clear that the individual must be allowed to possess and use certain communications equipment.
The Bill also sets out the conditions that must be satisfied before the Secretary of State may impose a TPIM notice. A key change from the current control order regime is in the first of these conditions, which requires that the Secretary of State must reasonably believe—rather than reasonably suspect—that the individual is, or has been, involved in terrorism-related activity. We think that this is an appropriate raising of the bar for imposing such preventive measures. In each case, the Secretary of State must also reasonably consider that it is necessary to impose measures on an individual, both in relation to the TPIM notice as a whole and the specific restrictions it contains. A further condition is that, except in the most urgent cases, the court has given permission for the proposed TPIM notice to be imposed.
TPIMs are intended to be a short-term tool to protect the public. They are not a long-term solution. A TPIM notice can therefore only be extended once. This means that a person can only be subject to a TPIM notice for a total of two years. This is a significant change from the current control order arrangements.
While TPIM notices will be imposed by the Secretary of State, the Bill sets out the significant involvement that the courts will have in the process. We are clear that the primary decision-maker in these cases must be the Secretary of State, as she is the person responsible for national security. However, we are also clear that the High Court should have full oversight of the process. The courts will, in all but the most urgent cases, give prior permission for the notice to be imposed. At this stage the court must determine whether the Secretary of State’s decision to impose a TPIM notice on the basis of the evidence available is obviously flawed.
If the court gives permission and the Secretary of State then imposes a TPIM notice, the process for a full review of the decision must begin. This happens automatically without the need for an appeal to be lodged by the individual subject to the TPIM notice. The full review will be heard by a High Court judge. The judge will consider the Secretary of State’s decisions that both the conditions for imposing a TPIM notice were met at the time the notice was first imposed, and that those conditions continue to be met at the date of the hearing. The judge may quash the whole notice or specific measures within it as appropriate.
The reviews of TPIM notices will take place within the context of the relevant case law on control orders that has been developed in recent years. This means that the court will exercise intense scrutiny over the Secretary of State’s decisions and that individuals will know the key elements of the case against them even if it is not possible for them to see all the underlying intelligence.
In addition to the rigorous consideration of the Secretary of State’s decisions by the courts, the Bill also builds in a formal statutory requirement for the Secretary of State to keep under review whether each TPIM notice remains necessary to protect the public from a risk of terrorism and that each of the measures in those notices remains necessary. The Bill also makes provision for a number of additional safeguards.
First, we listened carefully to the debates in another place about the need for renewal of the TPIM legislation by Parliament. We have accepted the arguments that TPIM notices should be seen as exceptional measures and that, as such, some form of regular review of the powers by Parliament is appropriate. We therefore amended the Bill in another place so that the operative powers under the Bill will expire after five years unless they are renewed by affirmative order; that is, with the approval of Parliament. This means that each new Parliament will have the opportunity to consider the legislation, how it has operated and whether it is still necessary. I hope that the House agrees that that represents a significant safeguard.
As well as this renewal by Parliament, the Secretary of State will be required to make a quarterly report to Parliament on the exercise of the powers under this legislation. The Secretary of State must also appoint an independent person to review the operation of the Act. As the House will be aware, David Anderson QC is now the independent reviewer of terrorism legislation, a role which was previously undertaken with great distinction for many years by my noble friend Lord Carlile.
Finally, I should like to bring Clauses 26 and 27 to the attention of the House. On 1 September, the Government published a draft enhanced TPIM Bill for pre-legislative scrutiny. This reflects the conclusion of our review that additional restrictive measures may—I stress may—be required in exceptional circumstances and that we would produce draft legislation to cover such a situation. We do not believe that it is necessary to have these additional measures in the TPIM Bill as we sincerely hope that they will never be required—and here I stress we sincerely hope that they will never be required. However, we think that it is right to have the draft legislation available and that Parliament should have the chance to consider it in detail now through pre-legislative scrutiny. The TPIM Bill, however, makes provision for the Secretary of State to introduce by order the enhanced TPIM regime during periods when Parliament is dissolved.
I look forward to our debate today and to the further debates that we will have in Committee, on Report and as the Bill otherwise proceeds through the House. As always, I am sure that our debates will be characterised by the thoughtful and expert contributions that are a mark of this House. It is with some humility that I look at the experience and expertise of all those who are speaking today, compared with my lack of experience in this new brief which I have taken on from my noble friend Lady Browning, whose resignation we all very much regret. I rather wish that she was here in this place rather than me but I will do my best, as is my duty, and I look forward to hearing from all those who are speaking today. Having said that, I believe that this Bill, together with the extra resources that we are providing, will protect the security of the British public and ensure that, in doing so, we go no further than is absolutely necessary. I believe that the Bill strikes the right balance between protecting us all from terrorism and upholding the civil liberties that all of us cherish. The approach set out in the Bill is the right one, and I commend the Bill to the House. I beg to move.
Lord Hunt of Kings Heath
My Lords, first, I thank the Minister for his careful explanation of the Bill. I would very much like to welcome him to his new portfolio and well deserved promotion, and I look forward to working with him. I echo his tribute to the noble Baroness, Lady Browning, for her stewardship of the Home Office brief. I very much enjoyed debating the—perhaps I may say—unlamented police Bill as it went through your Lordships’ House. She was a very good debater and listener who will be very much missed from the Front Bench.
The security of this country is of paramount importance and the Official Opposition would always wish, wherever possible, to support Her Majesty’s Government in their counterterrorism policies. The introduction of control orders was controversial because they can impose intrusive restrictions on individuals who in most cases will not have been convicted of a terrorism offence on the basis of closed material. We would always prefer to prosecute terrorist offences through the courts. Control orders are not desirable but I believe that they were necessary to deal with a discrete number of individuals who for one reason or another could not be prosecuted but posed a terrorist threat. The decision to introduce control orders has been vindicated through the way that the public has been protected from the risk of terrorism, but also as evidenced by the vigorous judicial process undertaken in relation to control orders.
The parties opposite, when in opposition, made a great deal of their concerns over control orders. In government, I suspect that the Home Secretary has come up against reality, but still feels obliged to introduce this Bill. It is a flawed Bill, it is a fudged Bill. It seems to owe as much to the needs of the coalition as it does to national security. Just as we see a faultline running between the two governing parties on European human rights legislation, so we see a faultline in the legislation in our debate today. On the one hand, we have the Bill, which the Government say—and the Minister repeated it this afternoon—provides greater safeguards for the civil rights of suspected terrorists. But we also have another Bill—the draft emergency Bill, which the Home Secretary will carry around in a back pocket for the inevitable moment when this Bill is found wanting. The problem with a faultline is that there can often be a gap. I hope that national security will not fall into it.
At the heart of my concern is the fear that the Home Secretary’s powers to deal with the most difficult cases are being weakened. Nowhere is that more evident than in the central issue of relocation without consent. Relocation powers have proved to be extremely useful in disrupting terrorist activity and have been regularly described by the police as one of the most effective powers that they have. How many of the control orders in force have relocation as part of them? In evidence to the Public Bill Committee in another place, Deputy Assistant Commissioner Stuart Osborne said:
“The relocation issue has been very useful for us being able to monitor and enforce at the current time. Without that relocation, and depending on where people choose to live, that could be significantly more difficult”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 5.]
The Home Secretary clearly thinks so. In May of this year, just five months ago, the Home Secretary argued in the case of CD that he needed to be removed from Greater London to protect the public from a terrorist attack. The judge in that case said:
“I have concluded that the relocation obligation is a necessary and proportionate measure to protect the public from the risk of what is an immediate and real risk of a terrorist attack.”
In July of this year, the Home Secretary said in the case of BM that relocation outside London was “fundamental” to preventing terrorist activity. In that case, BM admitted that he was committed to terrorism. The Home Secretary believes that those powers, which were needed three and five months ago, are not needed now. What has really changed in that period?
Ministers claim that they will put more surveillance in place but again, the senior representative of the Metropolitan Police, in evidence to the Public Bill Committee, said this:
“To get the resources we anticipate we need will take more than a year in terms of being able to get people trained and to get the right equipment”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 9.]
It is simply not credible that the security environment has changed so substantially in the past three or five months that the powers needed then are not needed now. Are the Government really saying to this House—in Olympic year, of all years—that the powers are needed less in the coming year than they were last year, when the Home Secretary felt that she needed to use them five times?
Of course, Ministers have already conceded that additional powers may be needed, so they have published draft emergency legislation, as the noble Lord, Lord Henley, remarked at the end of his speech. That will give the Home Secretary powers to impose what have come to be known as enhanced TPIM notices which make it possible to impose stringent restrictions on individuals, including relocation without consent. We have the rather extraordinary position of the Government saying, “We do not like control orders so we are getting rid of them, but until we do that we are going to go to the courts and argue vigorously for their use, and we will keep emergency legislation just in case this Bill turns out to be inadequate”. The Government want to go further: from a position of apparent opposition to control orders, remarkably, this Bill now contains in Clause 26 a provision that allows the Home Secretary to impose the enhanced TPIM notices which should be the subject of the emergency legislation during the period between the dissolution of Parliament and the first Queen’s Speech of the new Parliament. I suggest that if extraordinary provision such as that is needed, the Home Secretary needs it now and it should be in this Bill.
Lord Phillips of Sudbury
My Lords, on the noble Lord’s point about the absence of a relocation direction, does not the power to exclude a person subject to a TPIM notice from any area as specified provide a great deal of the protection that he wants? That is set out in paragraph 3 of Schedule 1.
Lord Hunt of Kings Heath
Why, then, my Lords, do the Government need a draft emergency Bill? It is because they consider that there may be circumstances in which the current Bill does not meet the security threat. My argument is that if the Government have to contemplate bringing in emergency legislation, it would be better to actually legislate for those provisions and allow Parliament its proper scrutiny rather than, at the time of an emergency or enhanced threat, seek to rush legislation through.
Lord Goodhart
Does the noble Lord accept that this deals with a particular problem, which is what is to be done during the period when Parliament does not exist? Surely special arrangements have to be made for dealing with that particular period of time.
Lord Hunt of Kings Heath
Then why on earth not put it into the Bill and allow the House to scrutinise and debate it thoroughly?
Lord Goodhart
This is something that is supposed to arise during the period when Parliament is dissolved. That is the problem. There is an interval of time, a month or perhaps six weeks, when no Parliament is in existence to deal with these notices. This is a perfectly legitimate provision meant to deal with that situation.
Lord Hunt of Kings Heath
My Lords, the noble Lord is a very good debater, particularly when he is defending a really impossible situation. The point is this. We have the Government saying, “Here is our Bill. We are so confident that it will meet the circumstances that we are also preparing an emergency Bill. However, we are not going to let Parliament have full scrutiny of that emergency Bill because we are not going to bring it before Parliament, but just in case we do need it because a threat has arisen during the period of the dissolution of Parliament and the first Queen’s Speech following a general election, we are going to provide in this Bill for the Home Secretary to be able to use it simply by executive diktat”.
We see here the confusion at the heart of the Government’s policy. The reality is that, in opposition, the parties opposite did not like control orders. They have come to power, had the advice and now realise that they need them but are stuck. They have produced the Bill as a way of proving that they are getting rid of control orders but they know that they will need the full panoply of the control regime so are going to have this emergency legislation as well.
A number of Select Committees have commented on the dangers of emergency legislation. First, it is bad constitutional practice. Secondly, the amount of information that will be given to Parliament in respect of an individual case will inevitably be very limited but might have an impact if those cases ever came to court. So this is not the right way to go.
There are of course a number of other features in the Bill and I will not detain the House. No doubt, we will come to the “alternative construct” of the noble Lord, Lord Macdonald, which has been heavily debated by the Joint Committee on Human Rights. We will have a great debate on that. I would be interested in the Minister’s response to the Joint Committee on what are called the Lord Macdonald amendments, in particular on whether the judiciary has been consulted and whether there is deemed to be a risk of replacing Executive decisions—where, ultimately, the Executive is accountable to Parliament—with judicial decisions. The general view of the judiciary on whether it wishes to be drawn into such decisions would be highly relevant.
I have just one other point. Control orders legislation was heavily criticised but it had to be renewed annually by Parliament. As a result of the changes made in the other place, this legislation will only come to be renewed once every five years. This matter is important. It enables extensive Executive powers to be used. Parliament ought to be able to come to a judgment on this on an annual basis.
I hope that the Minister will be prepared to listen to these arguments. Ultimately, this is a bad Bill producing a very fudged situation. I really sympathise with those in the security and police forces who will have to operate in such a difficult and uncertain environment. I hope that the scrutiny that this House will give to the Bill will bring from the Government a willingness to listen, consider and accept constructive amendments. The Bill needs an awful lot of work.
Baroness Hamwee
My Lords, I, too, thank the Minister for his introduction and welcome him to his position. If I were to say that I wished that my noble friend Lady Browning was here, I would not want him to take that the wrong way, but I use this opportunity to pass on the House’s good wishes to her.
I very much welcome the repeal of the 2005 Act. I hope that by the time this Bill leaves the House I shall be more enthusiastic about the whole of it, but I am already enthusiastic about Clause 1.
No one could envy a Home Secretary faced not just with specific decisions under that Act and this Bill, if enacted, but also with wider policy. I am very conscious of who is sitting immediately in front of me—the noble Lord, Lord Howard of Lympne—in saying this. Control orders always seemed offensive to me because of the impact on the individual and because of the inherent risk that, in using an order, or measure, to restrain a potential terrorist, the effect might be to drive that individual, or perhaps others who knew him and who knew about the restraint because they had been in the same community—however you define that—towards the very actions that one sought to avoid. That is quite the opposite of the intended effect.
I do not challenge the assessment of the risk of the threat of terrorism and am of course in no position to do so. As I have often said, there is no answer to, “If you knew what I know”. But it is necessary to take risks in order to manage risks. It is really not possible for the public, which is almost all of us, to know how executive decision-making operates in this area. We have in this Bill the proposed safeguard of a role for the court to determine whether the Secretary of State’s decisions are “obviously flawed”, to use the term in the Bill. That will be impossible to assess without access to the evidence, which is why the judicial role is so important. These cases are pretty likely to reach the court sooner or later, so why not start them there? However, I take a point made, I think, by Liberty, that the judges’ role must remain separate from that of the Executive, as there is a danger in a judge making a political decision.
In Committee, we will explore where the appropriate fit is within the judicial system. I know that my noble friends Lord Goodhart and Lord Phillips will address that matter. As has been said, the views of my noble friend Lord Macdonald are well known. I do not know whether he will use any of the amendments drafted by the Joint Committee on Human Rights on the basis of those views. I must say that it is pretty jammy to find that a Select Committee has drafted your amendments for you.
We will be debating later today the Terrorism Act 2000 (Remedial) Order. The Joint Committee made a number of points to the Secretary of State, one of which was that prior judicial authorisation of the power to stop and search, the subject of the remedial order, should be applied when stop and search was used without reasonable suspicion. The Secretary of State’s answer was that the Government rejected that view because it would not be appropriate or helpful,
“to blur the lines between the executive and the judiciary in this way”.
I disagree.
TPIMs will continue the use of the special advocate system. The idea of a lawyer representing a client but being unable to take instructions from that client, because there is nothing on which to take instructions, is not something that I have been able to get my head around. Neither the individual nor his lawyers would have more than the gist of the case, if one can call it a case, against him. Believe me, my practice as a solicitor persuaded me after quite a short time that one needs to be able to test the material and test evidence to destruction with your own client in order to be able to represent him.
The whole regime of special advocates will, I believe, be the subject of a Green Paper, and I use this opportunity to ask the Minister whether he could give the House any information as to when we might see it. Under the Bill, the hurdle for the Secretary of State is slightly higher than reasonable suspicion, but reasonable belief is not so very high a hurdle. We have already had mention of the draft enhanced TPIMs Bill, and we have seen the recently added Clauses 26 and 27. On the draft Bill, perhaps the Minister can tell us the arrangements for the pre-legislative scrutiny that we are promised and which will distinguish that Bill from other emergency legislation that we have seen. But under both of those, the Secretary of State would have to be satisfied on a balance of probabilities that the individual is, or has been, involved in terrorism-related activity. That is, of course, a lower standard than the criminal standard of beyond reasonable doubt. As I understand it, the enhanced TPIMs will be brought into effect depending on circumstances at the time, not on the risk related to the individual. There seems to me no reason why the balance of probabilities should not apply to standard TPIMs as well as to enhanced ones. That seems to be the logic of the way the enhanced TPIMs would come into effect. So we have executive action on a low evidence threshold and something close to executive legislation, since the Bill includes the power for the Secretary of State to repeal, extend or revive by order the legislation.
The title of the Bill is significant. We need to look at the provisions through the lens of prevention and investigation. I have heard—it may be that I read it as comments during the Public Bill Committee debate in the Commons—that control orders and TPIMs can be compared with ASBOs, but we are not dealing with a sanction or penalty here. It is also difficult to see how there can be an investigation since the objective of the Bill is to prevent offences. It is certainly difficult to see how there can be evidence of new activity for a TPIM after the first one.
The Bill raises issues around many aspects and stages of the process. I was left standing by arguments made by other noble Lords on the distinction between appeal, judicial review and the application of the principles of judicial review when we dealt with terrorist asset-freezing legislation some months ago. That legislation also threw up issues around the last of the major areas that I wish to raise today: how one deals with an individual and those around that individual—close and extended family and friends. This is an individual who has not been charged with, let alone convicted of, an offence; someone who may have terrorism in mind, but who is also a human being. Put at its lowest, and as a simple matter of protecting society, it does not seem to me to be good tactics to treat someone in such a way that we drive or tip them into the very actions that we seek to avoid. There are, of course, reputational issues for our country, too, but there is a basic moral code—common humanity—that must remain in play.
Several noble Lords attended a meeting yesterday when I asked someone who had been under a control order, which had been quashed, about the impact of particular measures. I did so wondering whether something similar to the licences that the Treasury is able to grant in the asset-freezing regime might be applied here, both general—for instance, spending on basic living costs—and case by case. The answer that the gentleman gave me was that it was the prevention from taking part in ordinary, mundane activities that was the most destructive thing. He was banned from meeting—or associating with, in the jargon—his oldest friend. Of course, both the family life of the individual and the life of his family are affected. How can they not be?
I have been thinking about the need for access to a doctor of that individual’s own choice. It is difficult to believe that control orders and these proposed measures could have no effect on mental health. Those in the know say that all the individuals under control orders whom they have encountered have been significantly damaged. It is simply not adequate to say, “Go to the local GP”.
The Minister may say that the measures will be humane and proportionate, and that that is implicit in the revised arrangement. We will want to explore that in Committee. I suspect that much will depend on how the measures are applied by the Home Secretary and others. For instance, the time of day when someone under a control order is required to report to a police station can make the difference between whether or not they are able to work or study. By the end of this process, I would like to be assured that we have made the legislation as good as it can be in what is, I acknowledge, a very difficult situation.
If we forget that there is a human being at the centre of all this, we will overlook the normal reactions to restrictions. There is the risk of driving a person into breach of a measure and thus criminalising someone who was not a criminal before. If we dehumanise someone in our own minds—the human being who is still there at the end of the process—and forget that he will have profound needs, then, whether or not there is more or less of a threat, we will not have done well. These are difficult issues. I find it quite difficult even to find the language to discuss them, but discuss them we must.
Finally, I have some rather more discrete questions to the Minister. In evidence to the Public Bill Committee in the Commons, the Metropolitan Police said that it had put in a business plan regarding the resources that it would require for surveillance. Can the Minister give me any news as to whether the Metropolitan Police has been satisfied with the response to that? Can he give the House any information about the number of prosecutions for terrorism that there have been of those under control orders? Inevitably, I also have to ask him about any news of dealing with intercept evidence.
My noble friends bring different experiences—some high profile, some lower profile but very key—and I hope that they and I, and the House as a whole, can help make this legislation intellectually coherent and satisfactorily based in the rule of law. As our own Constitution Committee has said, it has only an indirect relationship with the criminal justice system. It should be HR-compliant and obviously so—not just assessed as technically compliant, but something with which we, in our hearts as well as our minds, can live.
Lord Bew
My Lords, I, too, welcome the noble Lord, Lord Henley, to his position. However, I speak in this Second Reading with a certain degree of unease. Speaking on these matters in your Lordships’ House on 8 March, I welcomed the projected liberalisations which it was already fairly clear the Government were likely to be proposing in the control orders regime. In particular, I welcomed what was and is being said about relocation, which is almost the heart of the matter with respect to the working of any new legislation. I also welcomed what was and is being said about access to the internet, mobile phones and so on. As the debate has unfolded over the past few months, I am now not quite so sure that I was right to do so.
As far as relocation is concerned, I think I was influenced, as many people from Northern Ireland are, by the jealousy of both sections of the community and irritation about any concept of internal exile, or anything that smacks even remotely of such a concept. For that reason, I still am sympathetic to what the Government are trying to do here, and I respect that it is a very remote connection indeed. While I accept that, even the remotest connotation is something that a modern liberal society should be somewhat afraid of.
However, as the debate has unfolded, I have been struck by some of the evidence that has entered the public domain, particularly that of Deputy Assistant Commissioner Osborne to the Public Bill Committee, as others were. He made the point there that the power of relocation was probably the most effective aspect of the existing control orders regime. I also understand the concern of many others that the police and security services may not be quite ready to cope fully with a deliberate decision to take an increased risk, because that is part of what we are doing here, and we should face up to that. It may be the right judgment, but it is a deliberate decision to take an increased risk.
Partly in response to these concerns, as the debate has unfolded over the past few months, I have been comforted by the Government’s decision to make provision for what the Minister called “additional restrictive measures”—emergency provisions and draft legislation—and their willingness to have pre-legislative scrutiny of them. I fully accept that in some ways, logistically, this is a nightmare—I understand the mockery that the noble Lord, Lord Hunt, indulged in regarding this point—but it at least shows me that the Government have a serious concern for public security, which I find reassuring. Although it is hard to imagine the circumstances now being described in which this new legislative activity might take place, I suspect that Parliament can find a way through. I am willing to trust Parliament’s capacities regarding what is quite a difficult situation to imagine. I suspect that in all likely circumstances Parliament would find a way through, if we came unhappily—and it would be very unhappily and unluckily—to the moment when we had to look at a further ramping up of restrictive measures.
I have a concluding but, I hope, reasonable point about the general tone of public debate about these matters in our country and a rhetoric that assumes that we have a problem with the secret state and that there is a natural unchecked tendency towards authoritarianism, with a particular focus on the fact that Ministers receive advice to which the rest of us are not privy, which creates a major problem or difficulty of trust. It is true that Ministers will receive advice to which the rest of us are not privy, but it seems fundamentally to misrecognise the nature of modern Britain to presume anything other than a commitment to democratic liberal behaviour on the part of Ministers of any party and on the part of those who advise them. I know that this goes against a thousand television scripts and a hundred Guardian articles, but the presumption of guilt is not yet proven.
As an illustration of that, I also make the point that when we discuss these cases—while undoubtedly mistakes are made, because human beings always make mistakes, and of course the control order regime has applied only to small numbers of people—we tend to do so not only without reference to secret advice that we could not have heard or reasonably expect to hear but also while ignoring what is in open-source information about many of these cases, such as High Court documentation. It is remarkable the degree to which, in terms of this civil liberties debate, there is no engagement with what is already in the public domain about many cases.
I shall take one dramatic example of that, a case from the past two years that was taken up by many lobbyists and written about sympathetically in the Guardian and the Independent. It is the case of Mahmoud Abu Rideh, whose control order was revoked in 2009, when he left the country for Syria. There was much discussion in the papers about the mental anguish suffered by this man when he was the subject of a control order and, quite rightly, a human concern about these matters. It is none the less not without significance that in December 2009 an al-Qaeda website announced his death in Afghanistan, saying that sadly he had been martyred. A case of that sort is not without relevance to the whole debate about the level of the threat to public order that we face.
The Bill is a difficult balancing act, you could argue, between different parts of Article 8 of the European Convention on Human Rights. We simply have to accept that. I just hope that the Government have successfully achieved a balancing act between our traditional civil liberties and the needs of public safety.
The Lord Bishop of Oxford
My Lords, the Church of England is sometimes accused of being unclear or indecisive in its public pronouncements, so it is worth noting that on 14 February 2008 the General Synod voted by 235 votes to two for a motion that expressed its grave concern that the proposal to extend the maximum period of pre-charge detention of terrorist suspects from 28 to 42 days would “unacceptably disturb the balance” between individual liberty and national security. The motion went on to call on the Government to review the restrictions and obligations imposed on individuals under the Prevention of Terrorism Act 2005 and the use of undisclosed material in control order proceedings. I therefore welcome the order that will shortly be placed before your Lordships and the fact that the Government have produced the Bill as a result of their review of the control order system.
We are all indebted to the noble Lord, Lord Macdonald, for the review of counterterrorism and security powers. As Director of Public Prosecutions in 2008, his clarity and level-headedness were a great help to many of us who were non-experts as we tried to sort the wheat from the chaff over 42 days. Those qualities have also informed his conduct in the review.
It is increasingly clear from the debates that have followed the report of the Newton committee and the Lords judgments on detaining foreign nationals under the Special Immigration Appeals Commission that control orders were an attempt to solve a very difficult, if not insoluble, problem; that is, what to do about people who are suspected of terrorist activity but can be neither deported nor prosecuted. Therefore, I sympathise with successive Governments as they have struggled with this issue, which is rather like trying to square a circle. In these circumstances, it is very difficult to find a way forward that satisfies both the needs of national security and public safety and the rights of individuals under the rule of law.
The central objection to control orders was that they restricted the liberty of suspects without due process of law. However, it is hard to see how the prediction of the future behaviour of terrorist suspects could ever be subject to legal action in the way that past conduct could be. The judgment that the liberty of individuals needs to be restricted because there is well founded intelligence that they pose a threat to national security is essentially an executive decision. How far that can be subject to any normal effective judicial review is a difficult issue.
On the other side, if there is a system of restrictions, it needs to be as limited as possible and subject to legal safeguards that are as robust as they can be made. This, I take it, is the Government’s intention in the Bill. It is all very well to dismiss TPIMs as “control orders light” but, unless they have found a viable alternative to dealing with the problem, light is better than heavy, provided that the measures are likely to achieve their objectives.
I welcome the clarity of the conditions on the imposition of measures set out in Clause 3, although I leave it to the lawyers to argue whether reasonable belief is a higher threshold than reasonable suspicion of terrorism-related activity. The defined list of powers is preferable to the non-exhaustive list of obligations in the 2005 Act. It is good that the possibility of imposing derogating orders has gone, along with the requirement for relocation, although I understand the points well made by noble Lords earlier. I also welcome the two-year limit for TPIM notices. Taken together, these provisions go a long way to alleviating many of the most objectionable features of the control order regime.
The other outstanding issue is the nature of the judicial process adopted. The use of closed hearings, non-disclosure of evidence to suspects and the employment of special advocates all raise serious issues about the right to a fair trial, which is guaranteed under Article 6 of the European convention. I am reassured that the Home Office has taken note of the House of Lords decision in the case of AF by suggesting in its European Convention on Human Rights memorandum that suspects will,
“be given sufficient information about the allegations against them to enable them to give effective instructions in relation to those allegations”.
Whether and how far this will be feasible remains to be seen.
Finally, it is important that the Bill links prevention and investigation. Under the old regime, there was a worry that control orders were being used as a substitute for investigation and prosecution. Now it is clear that the two can be carried on in tandem, and that underlines the fact that prosecution and conviction is the preferred option and that TPIMs are very much a second-best resort for a small number of suspects. Although in an ideal world I would prefer not to have any such measures, I accept that in the circumstances we now face they are both necessary and proportionate, and I am content to support the Bill.
Lord Howard of Lympne
My Lords, I congratulate the Minister on his promotion. As I am sure he has already found out, the Home Office poses challenges of an entirely different order from those of other departments. I wish him well in his responsibilities. I join in the tributes paid to my noble friend Lady Browning, who performed her ministerial duties in this House, as she did in the other place, with very great distinction.
It is common ground in all parts of the Chamber that the best thing to do in respect of those who are suspected of involvement in terrorist activity is to prosecute them. We would all like that to happen. I welcome the fact that the Government are going some way towards making the process of prosecution easier by introducing post-charge questioning, which is something which I have advocated for some time. My noble friend Lady Hamwee mentioned at the end of her remarks the possibility of introducing intercept material as evidence in terrorist cases. Later in the debate the House will have the great benefit of hearing the wisdom of the noble and learned Lord, Lord Lloyd of Berwick. Although I am not privy to what he is going to say, and I anticipate it at my peril, I should be astonished if he did not make at least some passing reference to the desirability of introducing intercept material as evidence.
I have the dubious privilege of being a member of the advisory committee of privy counsellors charged with overseeing the work being carried out by Home Office officials in an attempt to achieve that objective. I was appointed to that committee by the previous Administration and reappointed by the present Administration. I joined the committee with a strong predisposition to making that evidence admissible. I had read the speeches of the noble and learned Lord, Lord Lloyd of Berwick, been impressed by them and largely agreed with them. I was extremely keen to see that the law was changed to make this possible. It may still be the case that that goal can be achieved, but I must tell the House that the difficulties in the way of achieving that objective are enormously greater than those that I had appreciated before I joined the advisory committee. Although I hope that we will be able to overcome those difficulties, I cannot pretend that I have enormous confidence that we will be able to do so. Therefore, the question the House has to consider, and the question which gives rise to the Bill, is: what do a Government and a society do in respect of people suspected of being involved in terrorist activity on the basis of material which is not admissible evidence in a court of law? I do not imagine that many people would suggest that that material can be ignored and that that society can be left at risk from those whom that material identifies as posing that risk.
Of course, this is not a dilemma which is particular or special to our country; other countries face it as well. The President of the United States campaigned three years ago on a promise to close Guantanamo Bay within a year. Those who are detained in Guantanamo Bay are there because they cannot be prosecuted under the ordinary laws of the United States of America. Three years later, Guantanamo Bay has not been closed, not, I am quite certain, because of any lack of good faith on the part of President Obama, or because of any lack of desire on his part to make good his campaign promise, but because of the very real difficulties of the dilemma that I have identified, which, indeed, was posed aptly and eloquently by the right reverend Prelate the Bishop of Oxford.
Therefore, what every Government have to do in the face of that dilemma is to strike a balance between the need to protect the public from the risk that these people pose while at the same time minimising the extent to which there is any interference with the individual liberty of those who have not been prosecuted and convicted in a court of law, which is the course of action that we would all desire, were it possible. To that question of striking the balance, there is no single absolutely correct answer. It is a question of judgment, and that judgment is always the outcome of discussion, debate and argument.
That is why I was not as impressed as perhaps he would have liked me to be by the suggestion by the noble Lord, Lord Hunt of Kings Heath, that the Bill is in some way to be regarded as less than ideal because it is the product of the coalition Government. The truth is that there will be in any Government—whether they be a single-party Government or a coalition—arguments, debates and discussions between different members of that Government as to where the balance should be struck. I was obviously not privy to the debates and discussions around the Cabinet table that led to the production of this Bill, but I would be very surprised if there were arguments simply between the Conservative members of the coalition on one side and the Liberal Democrat members on the other. I would suspect that there was a difference of view on both sides. That is the way in which our Government work, it is the way in which they should work and decisions emerge as a result of those debates, discussions and arguments. Those decisions are frequently compromises between the different positions, and they are none the worse for that. So there is no merit in the point that the Bill should in any way be criticised because it is the outcome of the debates, discussions and arguments that took place within the coalition.
Lord Hunt of Kings Heath
My Lords, I cannot resist. The point that I am making is that, as a result of the clear divisions, we have come up with a flawed process of a Bill with emergency legislation as a potential back-up because I am sure that there is an understanding among some members of the Government, and certainly in the security and police forces, that the Bill as it stands may not be sufficient. It is extraordinary legislation that gives the Home Secretary power, during a certain period, to use the enhanced provisions. The problem is the product of those discussions.
Lord Howard of Lympne
The noble Lord is, of course, perfectly entitled to criticise particular provisions in the Bill. What I am saying is that those provisions should be dealt with on their merits. It really should be no part of the argument that the Bill in its present form should be regarded as inferior or unsatisfactory because it is the outcome of the processes that took place within the coalition. As to the emergency provisions to which the noble Lord referred, an emergency gives rise to special needs and special circumstances, and it does not seem entirely unreasonable that the Bill should provide for those circumstances in the way in which it does.
I believe that on balance, and with one important reservation that may give some comfort to the noble Lord, the Government have got the Bill right and have struck the right balance between the various competing needs that have to be considered.
Lord Lloyd of Berwick
Is the noble Lord aware of any other country in the world which has control orders or anything like them? He referred to Guantanamo Bay, but that, of course, is not part of the United States.
Lord Howard of Lympne
Of course it is technically not part of the United States, and that is why it can exist as it does, but it is a product of the Government of the United States. It is the Government of the United States who have put in place the regime which exists in Guantanamo Bay, and I do not imagine for one moment that the noble and learned Lord would suggest that we should establish a regime similar to that in Guantanamo Bay in place of the measures contained in the Bill. The trouble is that you have to have something. It is true that every country proposes different ways to deal with the matter, but I do not think that ours is in any way the most draconian.
Lord Carlile of Berriew
In answering the question asked by the noble and learned Lord, Lord Lloyd, perhaps my noble friend would be mindful of the power in the United States to impose executive witness detention, never mind executive suspect detention. He might also be mindful of the arbitrary powers used in a number of other countries, for example, Pakistan and Sri Lanka, to detain people without any proper legal process and of the power, for example, in France, to charge people with association de malfaiteurs, something we are probably all doing in this House this afternoon, and then hold them in custody for months and months, quietly releasing them without charge.
Lord Howard of Lympne
I hope that my noble friend in that intervention has not exhausted the number of examples of that kind that I am sure he is able to give to illuminate the House. The truth is, I suspect, that if one conducted an extensive examination of the way in which other countries have faced up to this dilemma, one would find that the measures contained in the Bill are less draconian than those that exist virtually anywhere else in the world.
As I said, I believe that the Government have struck the right balance, with one not insignificant exception. When I gave evidence to the Public Bill Committee, I said that in my personal view the Bill would be better if it contained the relocation provisions, and I do not resile from that view. I believe that the relocation provisions would make it easier for the Security Service to carry out its responsibilities and would enhance the protection of the public. On that single point, I agree with the noble Lord, Lord Hunt, but for the rest of it, I believe that the Government have struck the right balance and that the Bill should be supported.
Lord Harris of Haringey
My Lords, I declare an interest as a member of the Metropolitan Police Authority, with particular responsibility for overseeing the Met’s work on security and counterterrorism.
Earlier this week, I went to a meeting with Carie Lamack. Her mother was killed on American Airlines flight 11, which crashed into the World Trade Center 10 years ago. She went on to co-found Families of September 11 and, later, the Global Survivors Network, which brings together survivors of terrorist attacks across the world and their family members. Her testimony is an international reminder about why the fight to combat terrorism is so important. Families are destroyed, individuals are left bereft and the effects last a lifetime.
I am sure that no one in your Lordships' House wants to see repeated the suffering of those terribly injured in the London transport attacks or the grief felt by those bereaved. That is why it is the paramount duty of Governments to protect the security of their citizens, to protect those citizens' right to life and to protect all of us against terrorism.
The problem that government faces is simple to state but not easy to resolve. In essence, it is this: what does the Home Secretary do about those individuals who pose a serious risk to the lives of British citizens but against whom there is insufficient evidence to bring them before a court charged with a terrorist offence? The evidence may not be admissible in British courts or it may rely on material gathered by UK intelligence agencies that would compromise the safety and security of others if it were publicly disclosed, or it is derived from intelligence from overseas agencies provided on the basis that it must not be disclosed. Yet a responsible Home Secretary cannot ignore that those individuals pose a significant risk, cannot turn a blind eye to the threat that is there and cannot fail to take some action to protect the rest of us. To do nothing would be a dereliction of that responsibility to protect the public. Control orders were an attempt to provide us with that protection in the very small number of cases where no other action is possible, and it is a power that has been rarely used, despite the dire warnings that were issued when it was first proposed.
This Bill, however, is nothing more than a shoddy compromise which weakens our security, yet does nothing to satisfy those with concerns about civil liberties. Despite what the noble Lord, Lord Howard, has just said, I think that it is a compromise that demonstrates the weakness of the Government as they try to square the circle between the two wings of the coalition, epitomised by a Liberal Democrat Deputy Prime Minister and a Conservative Home Secretary—trying to reconcile the irreconcilable. The current control order regime is not, of course, satisfactory—it is already a compromise. No one has ever seriously tried to pretend that it was satisfactory. However, it was an honest attempt by the previous Government to reach that compromise—to balance the free and liberal tradition of this country with the need for security.
The present Government were formed with an explicit commitment to replace the control order regime. It was a commitment made in the coalition agreement and the Deputy Prime Minister was voluble in his promises about what this would mean, telling us that it would “give people’s freedom back”. However, let us be quite clear. The Bill does not do anything like enough to satisfy those who have reservations about the previous control order regime and its implications for the civil liberties of those subject to that regime. Shami Chakrabarti, the director of Liberty, has said that control orders have simply been rebranded, albeit in a slightly “lower-fat” form, or, as Liberty’s briefing puts it,
“the TPIM regime essentially mirrors the control order system in all of its most offensive elements”.
Indeed, I suspect that the Bill must be something of an embarrassment for those Liberal Democrats who spent so long in this House criticising the previous Government for introducing and using control orders. There is silence today from the noble Lord, Lord Thomas of Gresford, who in 2005, when the control order legislation was going through your Lordships’ House, said on behalf of the Liberal Democrats that control orders would constitute,
“a blatant abuse of what we have known as the proper processes of justice”.—[Official Report, 1/3/05; col. 131.]
There is silence today, too, from the noble Lord, Lord Dholakia, who also spoke out unequivocally from the Liberal Democrat Front Bench. He said:
“The first and fundamental issue, which is central to all the arguments advanced in this debate, is who should be responsible for the decision to make control orders. On these Benches, it is clear that the proposals made in the Bill are not acceptable”.—[Official Report, 1/3/05; col. 206.]
Those issues remain central to the proposed legislation and what we have is the silence of the Lib Dem lambs. I should say that I absolve from the accusation of silence the noble Lord, Lord Goodhart, whom we will be hearing from in a moment. In 2005 he was equally trenchant but I have faith that he at least will be consistent when he speaks.
So this Bill does not satisfy—it cannot satisfy—those who feel that the current arrangements are disproportionate, draconian and destructive of our liberties. But, none the less, the Bill does water down the control order regime. It raises the threshold, from reasonable suspicion of involvement in terrorism to reasonable belief that the individual is or has been involved, before action can be taken. It limits what conditions can be placed on those individuals and, crucially, it removes the power to relocate individuals away from those localities where they may mix and conspire with others.
For those of us who believe that sometimes Governments must take unpalatable measures to protect us, those are crucial changes. They leave us all vulnerable. Let no one pretend that the threat has gone away. The recent arrests of seven individuals—now charged—in Birmingham as the Liberal Democrats gathered there for their conference are a reminder that we must continue to be vigilant against that threat.
The Home Secretary has had to acknowledge how critical all of this is. Within days of taking office and within days of the coalition agreement being signed, she was presented with information that persuaded her—a rational and responsible individual—that despite the coalition rhetoric about control orders and the need for them to be abolished, she should personally approve the imposition on a number of people of precisely the same orders as the Government are now abolishing.
Only in February, after the Government had announced their proposals, the Home Secretary agreed a control order on a British-Nigerian terror suspect who apparently, according to MI5, is a leading figure in a close group of Islamic extremists in north London. He was banned from living in London under the terms of that control order. In May, according to the Guardian, the High Court dismissed an appeal by the man, saying that his removal to an undisclosed address “in a Midlands city” was necessary to protect the public from the “immediate and real” risk of a terrorist-related attack. So, in February, it was necessary to place restrictions on that individual as to where he could live—effectively relocating him from north London to the Midlands, something which would not be possible under this Bill.
If this Bill becomes law, that individual will be free to move back to London in the new year, just weeks before the Olympics, to renew the associations that only a few months ago were deemed by that rational and responsible Home Secretary to be so dangerous that a control order was needed along with the relocation of that individual. I ask the Minister: what will have changed between the time when the Home Secretary approved that order and the time when the individual concerned is to be allowed to move back to London?
Lord Phillips of Sudbury
I am grateful to the noble Lord for giving way, but I must ask him the same question as I asked the noble Lord, Lord Hunt. Paragraph 3 of Schedule 1 states:
“The Secretary of State may impose restrictions on the individual entering … a specified area”.
The Minister can prevent someone entering London —so what is the noble Lord on about?
Lord Harris of Haringey
I am of course delighted to try to defend the Bill on behalf of the Minister, although I suspect that the Minister will do a very good job of that in a moment. However, my interpretation of the provision is that it is about very specific locations and particular areas—for example the Olympic park, or whatever else it might be. It is not clear that it will permit the prevention of that individual living in the city that had previously been his home. That is the point that needs to be made.
Lord Howard of Lympne
Is not the point that there is an enormous gap between preventing someone entering a particular area, which is what the schedule permits, and requiring them to live in a particular area where the Security Service can maintain constant surveillance of them? That is the difference between the two, is it not?
Lord Harris of Haringey
My Lords, as ever I am grateful to the noble Lord, Lord Howard, for his helpful intervention. My point is simple. This was a power that previous Home Secretaries and the current Home Secretary found necessary. It is one that the security services and police said was necessary. However, we are now told that the fresh air of the West Midlands conurbation and its bucolic atmosphere have so changed this individual’s personality that he now poses much less of a threat. That is frankly implausible. The reality is that this power was necessary. The present Home Secretary, knowing of the proposal that she would bring before Parliament, chose to exercise the power. The power remains necessary.
Baroness Hamwee
Would the noble Lord like to say anything about the development of technology? He may be overlooking the fact that individuals who are subject to these measures will almost undoubtedly be tagged. I do not know much about it, but I am sure that the technology is developing as we speak, and that it is possible to know where people who are tagged are going, and whether they are going where they should not be going. Surely that needs to be taken into account.
Lord Harris of Haringey
As I understand it, people who are subject to control orders are in many instances already tagged. Tagging is a useful technique. Tags can be removed, though the best tags are supposed to tell you if they have been—and I am sure that only the best tags will be purchased for this purpose. However, the problem is the risk of association. If somebody lives in a particular area and it is deemed that the danger of association is there, a tag will not tell you who comes to see that individual. Nor will it tell you where they go in their immediate vicinity, which could be precisely where those associations take place. The point of relocation is to minimise the risk of those associations, or to enable them to be monitored.
Just eight months ago, the rational and responsible Home Secretary, on the information presented to her, felt that the individual concerned was so dangerous that not only did he need to be subject to a control order but he should be relocated miles away from his previous environment. She made the judgment knowing that the Bill would remove that option and tie her hands in future. The rational and responsible Home Secretary made that judgment knowing that however much of a danger the person was thought to be, such an outcome would be taken away. The Minister needs to tell us why the judgment that the Home Secretary made then will no longer apply to this individual when the Bill becomes law.
Perhaps we should not expect the Minister to go through such contortions to provide an explanation. Perhaps all he needs to do is concede that the Home Secretary made that judgment in the interests of our nation's security but that this shabby, tawdry compromise of a Bill would prevent her making the same judgment in future. This compromise is not just between the two wings of an uneasy and unhappy coalition, but a compromise with the nation's security.
Lord Goodhart
My Lords, as we all know, the Bill replaces the Prevention of Terrorism Act 2005. It substitutes TPIM notices for control orders. Of course, control orders are a highly contentious subject. They have led to a great deal of legislation going before the Supreme Court and before its predecessors in your Lordships' House—two of whom I see in their place this afternoon. Differences between TPIM notices in the Bill and control orders under the 2005 Act are not great. Where they exist, the Bill is in some respects an improvement. For example, under the 2005 Act it was necessary only for the Secretary of State to show reasonable grounds for suspicion that the defendant was or had been involved in terrorism. Under Clause 3 of this Bill, the Secretary of State must reasonably believe that the defendant is or has been involved in terrorism. Of course, belief is a stronger matter than suspicion. Again, under Schedule 1 to this Bill, there is a specific list of all measures that can be imposed on the defendant under the 2005 Act. It is a list of examples but it is not exclusive.
However, this Bill retains the controversial provision in the 2005 Act under which defendants may be excluded from information about the case and may not be allowed to attend the hearing, and must be represented by a special advocate who cannot tell them what is happening in court. Whether this is in breach of human rights is a difficult matter, taking into account decisions of courts that have interpreted the 2005 Act. I am prepared to accept that special proceedings of the kind that happen in this country are not necessarily in breach of human rights, having regard to the decision of the Supreme Court on these issues, though in some cases the Supreme Court, as in the AF case, may come to the conclusion that human rights are not satisfied.
However, there is one matter I want to concentrate on, where this Bill has not gone far enough. This matter was fought over strongly in the debate in your Lordships’ House during the 2005 Act but does not seem to have been taken up during debates on this Bill; that is, whether a control order or a TPIM notice should be imposed by the Secretary of State or by a court. Many Members of your Lordships’ House will remember a debate in March 2005, the final stage of ping-pong of the 2005 Act, which began at 11.30 am on 10 March and ended at about 7.30 pm on 11 March. Anybody who took part in that will be only too reminiscent of it. The amendment proposed by my noble friend Lord Thomas of Gresford, who I am very glad to see here now, and by myself on behalf of the Liberal Democrats, and the late and greatly regretted Lord Kingsland on behalf of the Conservatives, proposed that control orders should be made by judges, not by the Home Secretary, and that the standard of proof should be on the balance of probabilities. I point out that this was the joint view of the Conservatives and my own party and that it was opposed by the Labour Party.
That amendment eventually failed when the Conservatives surrendered, for reasons that I find understandable, but I regret that the Government are not acting now on the principles that both we and the Conservatives pressed for in 2005. The amendment contained two requirements. The second of these—that the balance of probabilities should be a basis for a control order—seems to have been, to some extent, accepted by this Bill, although I am less than satisfied that that is what is actually meant by condition A in Clause 3. The first requirement—that orders restricting activities of defendants should be made by judges and not by Ministers—was refused in 2005 and is being refused again.
The power for Ministers to make TPIM notices is, I believe, a fundamental breach of the rule of law. That is the case even if the courts can set aside, as they could under this Bill, a TPIM notice if they were satisfied, as in Clause 6(7), that the Minister’s notice is “obviously flawed”, whatever that expression may mean.
I will explain why there is a breach of the rule of law. If there is proof beyond reasonable doubt that the defendant has committed an act of terrorism, he will be charged, prosecuted by lawyers and convicted by the judge and jury. Ministers will play no part in this because prosecution and conviction of individuals is not within their duty. This is a central rule of English law but it is not limited to cases which are simply beyond reasonable doubt.
What happens under the 2005 Act, and will happen again if this Bill is passed in its present form, is that the Minister will be responsible for the prosecution and the sentence of those who are believed to be—not proved to be—involved in terrorism. Of course, a TPIM notice is not a criminal sentence but it is quite plainly a civil penalty. The penalties here are severe and are surely a matter for a court to decide and not for a Minister.
The Secretary of State may consider that a penalty should be imposed and begin proceedings for that purpose. But it must be for the court and not for the Secretary of State to decide that a penalty should be imposed. To give the courts the power to cancel the penalty only if they are satisfied that the Secretary of State’s decision to do so is obviously faulty is simply not enough. That is doubly important in a case where the defendant cannot have presented his own case before the penalty was imposed.
In the Bill as it stands, we have an intrusion of Ministers on what should be the powers only of the law and the courts. For centuries, we have been proud in this country about the rule of law. One can only recommend that everybody reads the short book The Rule of Law by the late, great Tom Bingham. This is something that goes back to Magna Carta. But this Bill, like the 2005 Act, breaches the rule of law.
Baroness Stern
My Lords, I welcome very much the way in which the Minister presented this Bill to the House and I look forward to working with him. I must declare an interest as a trustee of the Civil Liberties Trust. It is a privilege to speak after the noble Lord, Lord Goodhart, who is a veteran of the Prevention of Terrorism Act 2005 and its subsequent annual renewal debates. The amount of attention we have paid to this matter in this House has been very worth while and productive. As the years and the renewal debates have gone by, the regime was modified and its least palatable aspects brought more within the rule of law. The fact that the Government had to report to Parliament and Parliament had an opportunity to look at the measure in detail was very valuable and should continue. I hope very much that we will return to this issue in Committee.
As someone who occasionally visits other countries—some with rather dubious human rights records—to talk about human rights and the rule of law, I must say that I would prefer it if we were not discussing this today and if we did not have to have measures that severely restrict people’s liberty without due process. There is no doubt that the threat is very real. Certainly, the numbers controlled in this way are small. Efforts are made to ensure safeguards. But the regime still goes beyond what we as a country believe in and what we advocate to others. As the noble Baroness, Lady Hamwee, has said, it does reputational damage to our country in this respect. However, I accept entirely that this Bill is an improvement. In the words of the right reverend Prelate, light is better than heavy, and no compulsory relocation or daytime curfews are welcome developments.
I wish to probe the Minister a little further on the restrictions. When I first read the list of those that could be imposed under the 2005 Act, I found it very chilling. The experiences of those under control orders and, by extension, their family members, seemed to be moving well beyond prevention and protecting society from danger into the arena of punishment, but punishment without a trial or a conviction.
It was most helpful to have the reports of the noble Lord, Lord Carlile, which put into the public domain much valuable information on what a control order meant. This was a combination of electronic tagging, curfew for up to 16 hours a day, daily reporting by telephone, restrictions on visitors except for family members, getting approval to meet anyone outside the house, being forbidden to meet certain people at all, giving the police free access to enter at any time, restrictions on communications equipment, needing approval to send anything abroad apart from personal letters, not being allowed to go to a port or a railway station, daily reporting to a police station and having to get prior approval to study.
Further light on what actually happened to people was shed by the noble Lord, Lord Carlile, in 2009 when he reported that a controlee was:
“No longer required to report by telephone to a police station in the early hours of the morning; nor to obtain prior approval for female visitors to his family at home”.
Presumably before this, the controlee had to set an alarm clock for some time in the middle of the night, wake up, ring the police and then try to go back to sleep. His wife had to submit requests to the Home Office if she wanted her mother, for example, to visit her.
According to the noble Lord, Lord Carlile, another controlee was not allowed to attend AS-level science courses because,
“attendance would enable him to acquire skills and information about production of pathogens and explosives”.—[Official Report, 5/3/09; col. 858.]
One report said that women in the family went to bed fully clothed in case there was an unannounced visit from the monitoring company in the middle of the night. One controlee was not allowed to go into the garden.
Can the Minister tell the House a little more about the restrictions available under this new measure and how they will be decided? I appreciate that they are more tightly drawn than under the 2005 Act, but I have read Schedule 1 quite carefully more than once and it seems to give the Secretary of State considerable leeway to impose a wide range of requirements. They are better than those I described, but they are still very stringent. I welcome the fact that the person can have a landline, a computer with access to the internet and a mobile phone, but there are considerable powers in Schedule 1 to restrict and control their use. These include specifying the manner in which a telephone, computer or mobile phone may be used and the times when they can be used. Work and study will be allowed, which is also a welcome development, but the Secretary of State must be notified of work or study and may impose any,
“specified conditions in connection with any work or studies”.
Can the Minister tell the House a little more about how these conditions will be applied to each person subject to them? Will they be regularly reviewed, and by whom? Will there be a review group or committee that looks at each case on a regular basis? Will persons subject to these orders and their family members be able to ask for modifications? Will they, as the noble Lord, Lord Carlile, recommended, have a phone number that will always be answered if they need to talk to someone about an emergency? An example would be if a child is ill and they need to call the doctor, but the doctor is not on the list of permitted visitors.
I have no doubt that the Minister intends these measures to be more just and humane than those they are to replace; they should indeed be so. But how does he envisage ensuring that that is actually the case when it comes to the detail of what happens to each controlled person and his or her family?
Lord Freeman
My Lords, from the Government Back Benches perhaps I may pay tribute to the work of my noble friend Lady Browning in your Lordships’ House in taking through the police Bill. Not everyone may have agreed with the arguments, but we shall miss her patience, skill and courtesy. I hope that noble Lords will join with me in extending our best wishes to her and hope that her health allows her to return as quickly as possible.
I shall be brief because there is no point in repeating arguments that have already been made much more eloquently. The right reverend Prelate the Bishop of Oxford, who is not in his place at the moment but has attended all the proceedings so far, was exactly right in arguing for the Bill and for what he described as light being “preferable to heavy”. It is time to amend the control order legislation and I agree with 90 per cent, or perhaps even 95 per cent, of what my noble friend Lord Howard argued and explained. I have some differences as to controlling movement outside, for example, the metropolis.
I should like to advance very briefly two reasons, from a business standpoint and drawing on my commercial background, why it is sensible to agree with a reduction in the nature of control legislation. It is time to move on from the 2005 Bill to a lighter regime. The first reason was referred to by my noble friend Lady Hamwee in her speech. Technology has improved enormously in terms of electronic intercept. It is now possible to track where people are moving, the telephone calls they make and their electronic communications, in a manner that seven years ago would have been absolutely unthinkable. With that tremendous improvement in technology, I feel much more relaxed about amending the original legislation by what is by all accounts quite a modest measure.
The second reason is the additional resources that MI5, MI6 and the police service in the United Kingdom now have. The £600 million available for cybersecurity being spent wisely on research at GCHQ in Cheltenham will enable us not only to track overseas terrorist threats, but more particularly where terrorists are in the United Kingdom and the communications between them. This is a complete revolution and these extra resources give me every confidence in backing the Bill. I look forward to the Committee stage.
Lord Dubs
My Lords, I welcome the noble Lord, Lord Henley, as the Minister and pay tribute to the noble Baroness, Lady Browning. I hope that she will get better soon and will be with us again before too long. I was talking to her only yesterday to commiserate on her health. She said that she really enjoyed the job, and the fact that she did so was obvious in how she dealt with the business of the House. It was a pleasure for us all, even if we disagreed with her.
I am a member of the Joint Committee on Human Rights and I want to develop one or two arguments. At the outset, however, I should say that if I were speaking later in the debate, I would probably be saying to the noble and learned Lord, Lord Lloyd, that I agreed with him on intercept evidence and to the noble Lord, Lord Macdonald of River Glaven, that I agreed with the thrust of his arguments. But given that I have not yet heard them speak, I shall have to say a word about that.
The noble Lord, Lord Howard, mentioned intercept evidence and the committee on which he serves. Those of us not privy to the sort of information that he now is—as presumably he also was when in the Cabinet—are not as aware as he is of the difficulties involved in the use of intercept evidence. It is a difficult point which affects the whole debate on terrorism that most of us do not have access to the information which determines how decisions are ultimately made by Ministers. We have to take it as an act of faith and there are limits to the amount of faith we can always have. I am very keen on the use of intercept evidence and would like to hear—I am not going to because it is all secret, of course—the arguments against the use of it, given that it is now normally used in many other countries which presumably have the same difficulties that the noble Lord referred to.
Lord Reid of Cardowan
Briefly, my noble friend raises a good point that he does not have access to the information on which sometimes the judgment is based. I merely commend to him a study: can he name one British Home Secretary who does not agree with the noble Lord, Lord Howard, in his estimate of the dangers and disadvantages of introducing what my noble friend proposes?
Lord Dubs
Of course, all Home Secretaries had access to this information which we do not have, so I cannot name a single Home Secretary in that regard. That does not mean that all Home Secretaries in history have always been right about everything. I say that with as much modesty as I can muster. Why is it that in many other countries intercept evidence is used when the same difficulties surely apply?
Lord Howard of Lympne
Can the noble Lord name a country with an adversarial system of evidence which is subject to the jurisdiction of the European Court of Human Rights? There are countries with adversarial systems that have allowed limited intercept evidence but are not subject to the jurisdiction of the European Court of Human Rights. There are countries that do not have an adversarial system but an entirely different system which have allowed limited admissibility of intercept evidence and are subject to the jurisdiction of the European Court of Human Rights. Can the noble Lord name a country that has both?
Lord Dubs
I am obviously well outside my comfort zone on this. I am not sure whether the Republic of Ireland meets the condition of the noble Lord. I believe that it uses intercept evidence, comes under the European Court of Human Rights and has a legal system similar to ours. I put that forward without the certainty that I am absolutely right—but I do not think that I am wrong. Given the silence of the noble Lord when I said the Republic of Ireland, I think I have got him there.
I am sorry that I have taken so long in getting away from what was meant to be my main argument. Those were just some preliminary points. I had no idea that they would cause so much excitement.
The Joint Committee on Human Rights, of which I have been privileged to be a member, has consistently expressed doubts about the control order regime and whether it is compatible with human rights. That is clearly the starting point for considering the changes being brought forward in the Bill. In fairness, the Bill modifies some aspects of the control order regime, for example moving the threshold from reasonable suspicion to reasonable belief and imposing a maximum time limit of two years—although it could be renewed if further evidence came to light about terrorist involvement. The restrictions imposed are also a bit less severe than the previous ones and there is a renewed emphasis on investigation and prosecution, although I would argue that it does not go nearly far enough because very serious concerns remain.
A main concern is that the priority should be the criminal prosecution of those suspected of involvement in terrorism. When people are involved in terrorism, the bottom line must be an attempt to use the criminal justice system and go for prosecution. Clearly nobody says that we will not do that, but when we have a system of TPIMs there will be a temptation to say, “Let’s go down that path rather than the more cumbersome process of getting the evidence and going for a prosecution”. There could be such a temptation—and, clearly, because we would all want to use the criminal law rather than an administrative process, we have to be careful that we do not drift into using TPIMs more widely.
In recent years, there has been a significant fall in prosecutions for terrorist offences. I wonder why that is. Certainly, there have been some important ones, but I am told that there has been a fall. The noble Lord, Lord Macdonald, who will speak after me—and I do not want to jump the gun, because he is an expert—in his report on the Government’s review of counterterrorism powers argued very clearly that restrictions on the freedom of those suspected of terrorism can be justified in constitutional and human rights terms only if they are part of a continuing criminal investigation. We are restricting individuals’ rights very seriously even under this new TPIM regime. The noble Lord’s fundamental criticism of the Bill, which I totally share, is that any replacement of control orders should be brought firmly within the criminal justice system. The Bill does not go nearly far enough in this respect.
It is true that the Government have restated their commitment to the priority of prosecution. However, as the Bill stands, the purpose of the new provisions seems to be more prevention than investigation and prosecution. I am confident that there will be a good debate on this in amendments to be brought forward in Committee.
I have one or two other points. Before imposing a TPIM, the DPP or the relevant prosecuting authority should be satisfied that a criminal investigation is justified and that investigation will not be impeded by any of the specified terrorism prevention and investigation measures. Clearly, if a TPIM is imposed on an individual, as was the case with control orders, that individual is totally alerted to what is going on. Even if surveillance is still carried on, that becomes much more difficult. So I can only assume that if we think that we have got somebody and there could be some evidence, we will not impose a TPIM because that would alert the individual and surveillance might be a better way in which to get the evidence—although, as we have discussed, intercept evidence would not be available.
I also believe that there should be judicial supervision in relation to any criminal investigation under this Bill. While the Bill provides that TPIMs can be imposed only with prior permission from the court and provides for an automatic review hearing, the Human Rights Committee recommended a widening of the court’s powers to look at whether the conditions for imposing a TPIM had been met and, at a review hearing, whether they continued to be met. Those would be additional safeguards that the Bill does not have. The Human Rights Committee is also keen that the Secretary of State should be required to provide the individual subject to a TPIM notice,
“with sufficient information about the allegations against him to enable him to give effective instructions”.
I agree that there is a balance to be struck there, because one cannot give all information away without revealing how it has been obtained. But in terms of the balance I would be happier if a little bit more information could be provided to the individual. I think that we could go further in that direction.
It has already been mentioned that under the Bill TPIMs are not subject to annual renewal by Parliament, but will be permanent. I hope that during its passage the Bill will be amended to require annual renewal. We are still talking about a serious erosion of the liberties of an individual. That requires proper scrutiny at intervals and a debate on the continued necessity for such exceptional measures.
Finally, I share the concern that the Government have a draft Bill that will enable them to give effect to exceptional measures. While in theory it may be attractive to say, “We have some more legislation and if we need it we can ratchet up the powers”, in practice we all know that it would be very difficult for Parliament to debate such a new measure at a time of national emergency—because there would have to be some crisis for this to happen. I am very nervous about the suggestion that, “We may need new powers and we will bring them forward to Parliament as and when they are necessary.” It is a difficult thing to conceive Parliament dealing with in that way.
I finish as I started, on intercept evidence. I have urged it, but it is not a silver bullet. I just believe that it would be helpful. I do not know what to do about the argument put forward by my noble friend that I cannot name any Home Secretary who has gone down that path, except to say humbly that I still believe that there is a case for considering it further.
Lord Macdonald of River Glaven
My Lords, while like other noble Lords I welcome the noble Lord, Lord Henley, to his new role and send my best wishes to the noble Baroness, Lady Browning, I also declare an interest as independent overseer of the Review of Counter-Terrorism and Security Powers. That review was intended, of course, by the Government to achieve a rebalancing between security and freedom where that rebalancing could be achieved in a manner that was consistent with public safety. In many respects, as I suggested to the House upon its publication, I believe the review succeeded in that aim. If its recommendations are implemented, I believe we shall indeed achieve a better balance.
Among the more controversial and pressing topics considered by the review was the question of control orders. It is very well known that these instruments came about not as a result of a predetermined, purposive government policy, but rather in reaction to a number of adverse court decisions outlawing the then Government’s attempts to intern without trial in Belmarsh aliens who were thought to present a risk to national security. The Judicial Committee of this House was unequivocal in ruling this policy to be disproportionate and discriminatory. In relating this I do not seek to underestimate in any way the dilemmas that have faced successive Governments in security matters. I saw many of them very starkly during the five years that I was DPP.
The Government’s response to the Belmarsh case was to create the control order regime. This applied to Britons as well as foreigners, so that it was no longer discriminatory. It fell short of inflicting full imprisonment without charge, prosecution or conviction, contenting itself instead with varying forms of house arrest and other restrictions on travel and association, and bans on the use of communications equipment, such as phones and computers.
Nevertheless, the scheme remained highly controversial, and this was for a number of reasons. First, the regime appeared to permit the state to order sanctions that looked explicitly penal but in the absence of any criminal due process and certainly without any trial ever having taken place. Secondly, these apparently penal sanctions could be imposed without the controlee and his lawyers knowing any more than the gist of the evidence relied upon by the state, and this evidence could be presented in their absence to the court. This seemed obviously and crudely to offend against traditional British norms of justice, precious to so many citizens of the United Kingdom. Thirdly, it was by no means apparent that control orders were actually in any sense entirely protective of the public. Many controlees simply absconded and only one, I think, was ever prosecuted with a substantive terrorist offence. In circumstances where it had apparently been the belief of successive Home Secretaries that all these men were engaged in serious terrorist activity, this omission seemed to represent a grave and continuing failure of public policy. Put simply, if the Home Secretaries were right, as I am sure they were, terrorists were routinely and scandalously escaping justice.
Lord Reid of Cardowan
The main reason people could abscond during control orders was not as a result of what the Home Secretaries wanted, which was 24-hour-a-day confinement; it was that, under the Human Rights Act and European Convention on Human Rights, the Home Secretaries were not allowed to authorise such confinement, but had to leave people eight hours to go about their normal business, whatever that was. That was an open invitation to undermine the very essence of the confinement under control and surveillance that was the essential requirement for control orders. It may be right or it may be wrong, but it was the main factor that allowed those under control orders to abscond.
Lord Macdonald of River Glaven
I entirely accept what the noble Lord says, and I am sure he is right about that. Of course, if the controlees had been confined for 24 hours in Belmarsh or even in their homes, it would have been far more difficult for them to abscond, but the control order system that we had existed largely as a result of decisions made by the courts. My point is that this control order system, as it came to be, may not in a serious sense have been protective of the public because it was so easy to abscond and because so many controlees did just that. My more substantial point is that I think that only one was ever prosecuted with a substantive terrorist offence so if the Home Secretaries were right that these people had been involved in terrorist activity, that would appear to be a failure of public policy in that terrorists in those circumstances were escaping justice.
My view is that, given the nature of the control order regime, this was not surprising. One clear finding of the review, accepted by all sides so far as I could tell, was that the control order regime was inimical to prosecution. That resulted from the reality of control orders, which amounted to the warehousing of suspects under the aegis of the Security Service and the consequent destruction of the normal routes and possibilities of evidence gathering. This was not the intention of the control order regime but it was one of its effects, and it was absolutely clear to me from material that I examined during the review that the process of building prosecutions against controlees was weak and had low priority. In fact, it almost never occurred.
For very understandable reasons, when a man was put under a control order the police would simply move on to other cases, satisfied that that individual was adequately quarantined under watchful eyes. That low prioritisation of prosecutions will always be evident so long as the system of restrictions is positioned outside criminal justice. If I am right about that—I shall expand a little in a moment—it means that to situate TPIMs outside criminal justice is not only possibly offensive to principle; it is also, finally, offensive to public safety because it lets people get away with terrorism and escape justice.
Let me say straight away that TPIMs appear to represent an improvement on what went before. The most offensive features of the previous regime from my perspective—those closest to house arrest—have gone. Relocation and long curfews will be a thing of the past. Individuals will be permitted to use electronic communications, including computers and phones, and the orders themselves will be time-limited to two years. Yet in my view the Government have failed to grapple with the central issue: the nature of the orders themselves and the appropriate space for them to occupy within our constitutional arrangements. In my report on the review, presented to Parliament alongside the review, I called for TPIMs to be attached quite explicitly to criminal investigations. That would facilitate the prosecution of serious criminals and deal with the constitutional objections that have bedevilled control orders and will, I am sure, continue to bedevil TPIMs. This stance has since been supported by the JCHR and noted by the Constitution Committee of this House. It deserves more serious consideration than the Government have so far shown it.
I understand that it will not always suit the Security Service, for which I have the greatest respect, to have law enforcement authorities crawling all over suspects under its control. That no doubt explains in part the strong support that the Security Service has given to the control order regime but it is nothing to the point. The public interest is not always and inevitably to be equated with the policy of the Security Service. Sometimes, Governments need to stand back. It is patently absurd that individuals certified by the most senior figures in government to be active terrorists are not constantly and relentlessly under criminal investigation. I do not accept for one moment that because the material against an individual is presently inadmissible for one reason or another—many identified by my noble friend Lord Howard—the investigation should stop. On the contrary, it should be redoubled and have TPIM conditions attached to it for its duration. Let there be relentless investigation into people who are suspected of terrorist activity but let it be criminal investigation and let TPIMs be tied to that investigation—to facilitate and assist it so that no opportunity is lost to bring violent extremists to justice—in a manner consistent with our rule of law.
Lord Howard of Lympne
What would happen under the regime that my noble friend is suggesting if the police and prosecuting authorities came to the conclusion that there was simply no evidence that would justify the continuation of the criminal investigation? Under his proposals, would that mean that the restrictions currently under discussion would inevitably fall?
Lord Macdonald of River Glaven
If my noble friend does not mind my saying so, I am not sure that the example that he posits is one that I recollect from my period as DPP. Let us imagine the situation that would exist here: presumably the police or the Security Service would have in their possession something like an intercept that could not be used—for example, a suspect having a conversation with another individual about a plan to place a bomb on the Tube. With respect, that is not the end of an investigation; it is the beginning of one. The investigation that then takes place is into that individual, into the plan as described in the phone call, into the individual he has spoken to and into the associates of all.
The noble Lord will know from his time as Home Secretary that the sorts of powers and abilities that the law enforcement authorities in this country have, which we will not go into here, are considerable and significant. I do not recognise a situation in which a law enforcement investigation stops simply because the deeply incriminating material that you have until that time is the only material that you have and you do not anticipate discovering more.
Lord Carlile of Berriew
But my noble friend Lord Howard did not suggest that. Does not my noble friend Lord Macdonald, from his distinguished period of service as Director of Public Prosecutions, not recollect that cases were brought to him in which at that time there was no further prospect of a successful investigation? That is the question that my noble friend Lord Howard is asking. If that is the case, perhaps my noble friend Lord Macdonald would just tell us that the consequence of his view is that, if a TPIM exists after that time, it should cease.
Lord Macdonald of River Glaven
Of course one recognises that if an investigation, using all the powers available to the investigating authorities, has continued for a period of time and turned up nothing, under this scheme the TPIM will come to an end—but TPIMs are intended to be time-limited in any event. Under the terms of the Bill, TPIMs will come to an end after two years, so we are not talking about an open-ended system of restrictions. My point is that a system of restrictions applied to criminal investigations is not only more likely to be constitutional and develop broader public support than the system that is currently proposed, but such a system would have attached to it conditions that actively encourage and assist investigation.
Lord Hunt of Kings Heath
The noble Lord talked about broader public support, but what evidence does he have of major public concern about the use of control orders? Is there not in fact a great deal of public confidence in them because they protect our security?
Lord Macdonald of River Glaven
If the noble Lord does not mind my saying so, that is a somewhat complacent view. There is wide public concern. Obviously there are different views around the country and in different communities, but it would be complacent for the noble Lord to come to the conclusion that there is and has been no broader public concern about control orders.
Lord Reid of Cardowan
Would the noble Lord give us one piece of evidence to substantiate that?
Lord Macdonald of River Glaven
The level of public debate and discussion is pretty clear evidence. The review itself contains evidence of public meetings and discussions with people who are concerned about the control order regime. I caution noble Lords from the view that there is no concern in the country outside these Houses about these arrangements; I believe that there is.
Lord Reid of Cardowan
May I help the noble Lord? I was a Member of Parliament for 23 years. I held a surgery at least once a month and sometimes four times a month. I never had one person come to me and make representations for or against a control order. There is published concern and there are certainly lobby groups, but public concern is entirely different. All the evidence is that the public feel reasonably comfortable with this system as a matter of ensuring their security.
Lord Macdonald of River Glaven
I respect the noble Lord’s experience. I am sure from my own experience, conversations and discussions with many people in different parts of the country and different communities when I was DPP that there is and was concern about the control order regime, as there was concern about the pre-charge detention regime. Frankly, noble Lords delude themselves if they seriously suggest that there was no broader concern about measures of this sort; I am sure that there was. Maybe we will not agree about this but, with great respect to noble Lords, I find that view somewhat complacent.
When this subject is debated, everybody agrees that the most important result of any investigation into terrorism is prosecution. If one is considering protecting the public, they are best protected by people being sent to prison for long terms. This is something that we became and are extremely good at in this jurisdiction. We have extremely skilled and able specialist counterterrorism police and prosecutors, and an outstanding record of putting people in prison.
Lord Gilbert
We all speak from our own experience; the noble Lord moves in his circles and I moved in mine. I have similar experience to my noble friend Lord Reid, having represented a Labour constituency for 27 years. The attitude there was one of concern over control orders; the noble Lord is absolutely right. The attitude was that they should be tightened up: “Lock them up and throw the key away”.
Lord Macdonald of River Glaven
The noble Lord has his experience and I am grateful to him for sharing it with us. I find it very helpful and thank him. Most of the people I spoke to during those years wanted to see these men and women in prison for long terms. That is the answer and the way to protect the public. Find the evidence, prosecute these people and lock them up. The gravest disadvantage of the control order regime was that it presented an obstacle to that in the cases of those individuals who were subject to control orders. That is the purpose of a scheme that would link restrictions to criminal investigations that are more likely to result in criminal prosecutions and convictions.
Lord Pannick
My Lords, we are debating the Bill at a particularly depressing time for civil liberties in this country. This country has long prided itself on the protection of fundamental freedoms, both here and in other parts of the world. However, we apparently now have a Home Secretary who believes that debate about human rights—an important and serious debate on complex issues—should be so debased that the right to family life can seriously and usefully be addressed by a fable about a cat rather than by any serious analysis of the issues of law and policy. That is a matter of grave regret. I very much hope that the noble Lord, Lord Henley, who I welcome to his responsibilities, will be able to persuade the Home Secretary to take a more informed, reasonable and reasoned approach to the issues raised by the Bill, issues that, as he rightly said in opening the debate, depend on securing a correct balance between state powers and civil liberties.
The regime proposed by the Bill, like the regime under the control orders legislation, raises concerns about the rule of law in four respects, which we will need to address in Committee. I share the concerns already expressed by the noble Lord, Lord Goodhart. First, we must accept that the Bill allows for sanctions against alleged wrongdoers by an administrative procedure that is wholly outside the criminal process, which is the point that the noble Lord, Lord Macdonald of River Glaven, has just addressed. My response to the interventions is that, regrettably, one finds that constituents up and down the country do not share concerns about civil liberties when they relate not just to alleged terrorists but to alleged murderers and rapists. Nevertheless, they are important aspects of a civilised society which it is our responsibility to seek to protect. Let us remember that the fact that these matters are being addressed outside the criminal process—I understand why they need to be so addressed—arises in the context that over the past 10 years we have enacted a vast number of new criminal offences to deal with terrorist activity, many of them concerned with preparatory acts, such as possession of material for criminal purposes.
Lord Reid of Cardowan
It is important to clarify this. I do not think anyone was suggesting that the public view was right or wrong; what we were trying to ascertain was the public view. That was the matter of disagreement with the previous speaker: the contention that the public view was that these were very troublesome and difficult issues and that we should get rid of control orders. That was what was in dispute, not whether the public view was right or wrong.
Lord Pannick
I am very grateful. If the noble Lord accepts—I hope he does—that the public view on these issues is not determinative, although plainly it is important, we will not differ much, save that I suspect that in some sections of the community there is particularly grave concern about control orders. My concern is that that may well be undermining the extent to which those communities are prepared to co-operate with the police and the prosecution authorities in bringing forward evidence that is vital to secure the conviction of terrorists and information that can be used to implement the administrative process. That is my concern, and it is why I share the view of the noble Lord, Lord Macdonald, that we must not be complacent about these matters.
The noble Lord, Lord Henley, said in opening the debate that it is necessary to have the TPIM regime in those cases where prosecution is not possible. The noble Lord, Lord Howard of Lympne, eloquently supported that approach. I, of course, understand the force of that point, but we must surely accept that it is nevertheless difficult to reconcile this approach with the rule of law. It is an exception to the rule of law. Because it is an exception—perhaps a justifiable exception—it is vital that we ensure that the detailed implementing provisions in the Bill satisfy the test which the noble Lord, Lord Henley, stated at the end of his speech, and which I was very pleased to hear from him. As I understood him, the test is that the provisions must go no further than is absolutely necessary. I commend that test to the House as the right one to adopt in testing the provisions of the Bill. That is the first concern.
The second rule of law concern is that the Bill allows for the sanctions—that is what they are—to be imposed by a Minister and not by a court, albeit that the court has a reviewing role. If a TPIM procedure is appropriate outside the criminal process—I understand why it is—the rule of law surely requires that Ministers do not themselves make the initial decision on such matters as who a person may associate with and where they may stay overnight with the court confined, as it is under Clause 6(3), to determining whether the initial decision of the Minister is “obviously flawed”. Surely the role of the Minister should be to make an application to an independent judge. It should be for the Minister to produce the relevant evidence, perhaps in closed session with a special advocate, for the judge to assess. It should be for the court to decide whether the order should be made. In urgent cases, the court could no doubt apply a threshold test. We need to consider this seriously in Committee.
Lord Hunt of Kings Heath
My Lords, in relation to the point the noble Lord has just made, has he ascertained the view of the senior judiciary about whether they would wish to be drawn into making such decisions? There is a balance here as to whether it is more appropriate for the Home Secretary to make those initial decisions, subject to judicial scrutiny, because ultimately the Home Secretary is responsible for security issues and is accountable to Parliament. Does the noble Lord not think—and I think he is following the argument of the noble Lord, Lord Macdonald, on this—that there is a danger of moving responsibility from the Home Secretary to the courts? I wonder whether the judiciary would want to accept that responsibility.
Lord Pannick
The factual answer to the noble Lord’s question is no. Of course I have not asked the Lord Chief Justice about this matter, but under the Bill, it is, in any event, the responsibility of the judge at the reviewing stage to decide whether the TPIM should be maintained. The Government accept in the Explanatory Notes that that should be akin to an appeal procedure, not just a judicial review test. The judges will have that responsibility at the end of the process. It seems to me that they should have that responsibility from the outset of this process. I would say to the noble Lord and to the judges, with genuine respect, that it really is not for judges to determine what responsibility they should have in relation to this fine balance between the public interest and civil liberties. It is surely for Parliament to decide how the balance should be struck and for us to decide whether it is best struck by the courts having the role that I suggest.
There is a third respect in which the Bill offends against the rule of law. It allows for sanctions to be imposed without any proof of wrongdoing, even proof to the civil standard of the balance of probabilities. A TPIM notice may be issued by the Secretary of State where she,
“reasonably believes that the individual is, or has been, involved in terrorism-related activity”.
When he winds up, will the Minister please explain why these sanctions should be imposed on a person if the Secretary of State is unable even to show that it is more likely than not that the wrongdoing has been committed or will be committed by the individual concerned? If the security services, with all their resources, and even with the use of evidence that could not be disclosed in a criminal court, cannot satisfy the judge on the balance of probabilities that the individual is involved in terrorist-related activities, there is surely no justification for taking these legal measures against that person. Of course, surveillance measures may well be appropriate against such persons, but that is not what we are discussing in this Bill.
There is a fourth respect in which the Bill departs from the rule of law: it allows for sanctions to be imposed although the individual has no right to see the material on which the allegation is based. In the AF case in 2009, which has already been mentioned, the Appellate Committee considered how the principle of fairness under the rule of law should apply in the context of control orders. I declare an interest: I represented AF in the Appellate Committee. The Law Lords decided that a control order is invalid unless sufficient of the case against the individual is disclosed to him personally to enable him, if he can, to give instructions to his lawyers to answer the allegations against him, and if the Home Secretary is not prepared to disclose that much, the control order cannot be maintained.
The TPIM, like the control order, involves severe restrictions on the personal liberty of the individual. Therefore, it seems to me that a TPIM will inevitably be unlawful unless the AF principle—you must disclose as much as enables the person to have a proper opportunity to answer the allegations—is satisfied. Does the Minister accept that? If so, does he agree that the Bill should be clarified by stating that point clearly?
I make one final point. Like the noble Lords, Lord Hunt of Kings Heath and Lord Dubs, I think that it is appropriate, given all the matters that I have mentioned, the sensitivity of the issue and the extent to which matters will develop from year to year, that this House and the other place have the opportunity to consider these important matters every year, not only at the expiry of another five years.
Lord Faulks
My Lords, this Government, like the previous Government, have a duty to respond to the threat of terrorism in a way that strikes a balance between individual freedom and the security of those potentially affected by acts of terrorism. This is and was no easy task. Control orders, introduced by the previous Government, were controversial, as were the various increases in pre-trial detention. However, the threat, principally from al-Qaeda, remains, and it calls now, as then, for extraordinary measures. On pre-trial detention, there is an acceptance that the previous Government probably went too far. However, I do not doubt for a moment the genuineness of their approach to pre-trial detention and the question of control orders, nor that they were reflecting concerns of the public and what they required the Government to do.
It is perhaps a little too easy to seem principled—even heroic—in deploying civil liberties as a trump card in this debate. Although I do not have the debating miles on the clock of some noble Lords, I have followed the debate from outside Parliament, and I never found in the rhetoric the comparisons with internment in the Second World War, control orders under the apartheid regime in South Africa or the regimes in Zimbabwe and Burma at all helpful.
However, as with pre-trial detention, modifications to the control order regime were needed. In bringing forward the Bill, the Government have made some important changes. Is the Bill simply control orders lite? The Secretary of State must now reasonably believe that the individual is or has been involved in terrorism-related activity and reasonably consider that the relevant measures are necessary. That is an important additional requirement. With great respect to my noble friend Lady Hamwee, it is a pretty high hurdle.
The menu of measures contained in Schedule 1 is varied and can be nuanced according to the particular situation where there is someone over whom the measures are appropriately directed. They exclude relocation measures, which previously existed. It is a fine judgment whether that is an appropriate exclusion, but there are sufficient measures to exercise the necessary degree of control without that. As I understand it, the Government were concerned, in so far as it was possible, to allow those who are the target of the measures to lead as normal a life as possible in the area with which they are familiar. Similarly, retaining the means of communication is important to allow them a modicum of a normal life.
Those and other changes may not alter fundamentally what the Secretary of State can do, but they are by no means trivial amendments. It is, of course, of paramount importance that safeguards are provided in a Bill of this sort. The primary one is the effective supervision of TPIMs by the courts. The High Court will consider whether to give the Home Secretary permission to impose a TPIM notice and will later review whether the notice and measures were in fact necessary. Is there any reason to think that the courts will not be rigorous in their approach to TPIMs? I think not. The existing case law about control orders shows how carefully the courts scrutinise measures of this sort. I agree with the noble Lord, Lord Hunt of Kings Heath, that that is the role of the judges, as opposed to the role of the Home Secretary.
In the other place, Hazel Blears said on 7 June 2011, citing a judge with whom she had spoken,
“whenever there’s a decision to be made between liberty and security, I … always err on the side of liberty”.—[Official Report, Commons, 7/6/11; col. 97.]
That was an observation of one judge, but my experience of the judiciary is wholly consistent with that observation.
The closed hearings which have to take place to maintain security are certainly unattractive at first sight. The use of special advocates who cannot communicate to their client the whole of the case raises the spectre of the target of one of these orders simply not knowing about the evidence against them. But those who act as special advocates are highly respected and principled lawyers who can be relied on to test the evidence with skill and care on their client's behalf.
The system is clearly far from perfect, but I think we can be satisfied with the courts, as they have shown hitherto in the considerable amount of litigation that has flowed from the predecessor measure, entitled control orders, whether under the auspices of Article 6 of the European convention or according to well established principles of English law.
Why do we need TPIMs at all? I wonder whether there is much dispute in your Lordships' House about the terrorist threat, but the situation is made worse by our inability to deport terrorists or potential terrorists because of the European Convention on Human Rights. Those who face torture or the threat of torture in their country are one thing—Article 3 provides them with protection—but the creative interpretation of Article 8 by the court in Strasbourg and thus in our courts has meant that it is all too easy for someone to resist deportation by raising arguments that they have established links here in a way which the courts have interpreted as their so-called right to family life. I say nothing about terrorists' liking or otherwise for cats.
Inevitably, this will be a compromise. The contribution of Liberty to the debate is something that one always looks at with great interest. I do not always agree with that organisation's observations, but it makes a highly valuable contribution to the debate. I was, however, disappointed with its conclusion and the one-sidedness of the report prepared for the Second Reading, which offered the view that TPIMs,
“will only perpetuate a regime which is unfair and puts us all at risk”.
That seems to me to ignore the risk at which the legislation is directed: the risk from terrorism. The Government have responded by bringing forward the legislation, which represents a compromise. As my noble friend Lord Howard said, of course it is the product of compromise and, no doubt, of intense discussion, with different views within parties and within the coalition. Where matters of security and terrorism are concerned, one hopes that there can be a degree of consensus in your Lordships' House. I am sure that during these debates, some useful amendments may be proposed. I am particularly conscious of the fact that there should be no two-stage process: someone subject to TPIMs who is then to be prosecuted. The Bill does something to preserve the imperative of bringing those people to the courts if at all possible by the duty to consult with the police. Amendments and improvements there may be but I suggest to your Lordships that this represents a good compromise.
I welcome the noble Lord, Lord Henley, to his post and wish him good fortune in steering this Bill, which reflects a considered compromise. It has the benefit of some learnt experience and I suggest that it represents a balance between the protection of the realm and the liberty of the individual.
Lord Desai
My Lords, as the previous two speakers have mentioned the cat, I, too, shall start with that. The cat in question was called Maya, which in Sanskrit means “illusion”. I think that the Home Secretary was under some illusion if she thought that her example of a cat would get her any sympathy for trying to mess about with the ECHR. It is quite right that this Bill is before us, because the ECHR is a problem with which we have to deal and we cannot suddenly invent things which defy it. It is because control orders have been questioned again and again in courts of law that we now have the TPIM.
I am a veteran of the battles of 2005. I slept in the Salisbury Room and was here for all 36 hours of the debate. From what I remember of that time, the problem that we faced, as noble Lords have pointed out, was not only that of discrimination between British citizens and foreigners but the fact that by the time a suicide bomber has committed his crime you cannot prosecute the criminal because he is dead. The question was: can you do something about someone who is planning, but has not committed, an act of terror? I am not a lawyer, so that is the question that I asked. I thought that we had to devise a way of doing something about someone who might be planning an act of terror or who might have a powerful association with such an act. The case for criminal prosecution was too weak but it was recognised that it was urgent that the person be prevented from going any further with his or her plans. That, I believe, was the nub of the problem. As the noble Lord, Lord Macdonald, said, ideally a suspect should be prosecuted under criminal procedures and we should see which way the court goes, but the problem is that the evidence against that person is not solid enough to secure a criminal prosecution. However, if you let him be, there is a possibility that a terrorist act will occur, by which time it will be too late to prosecute him. That is what I see as the dilemma.
In statistics, we have two types of error. One is that you may have a true hypothesis which you may reject by mistake because of the evidence that you have; the other is that you may end up accepting a false hypothesis. You cannot minimise both those possibilities. You can control one possibility and minimise the other. I believe that that is the same problem that we have here. How do you make sure that anyone who is likely to commit a terrorist act does not escape the possibility of being prevented from committing that act, while trying to ensure that someone who is perfectly innocent is not held in his house for 24 hours or whatever? Basically it is a security versus liberty dilemma. I do not believe, as the noble Lord, Lord Howard, said, that there is a definitive answer to this problem but I have always thought that control orders, and now TPIMs, are inadequate for dealing with it. There is absolutely no doubt that they offend against the pure principles of the rule of law, and all these years we have been trying to find something that is near enough to a compromise in dealing with this problem.
I can see that one or two concessions are being made in the Bill. We are going from “suspicion” to “belief”. That is a concession and it gets slightly closer to the norms of the rule of law. Perhaps we should go for the balance of probabilities—there might not be too much harm in that. At the same time, the trade-off seems to be that you not only go from suspicion to belief but you more or less retain control orders but give up the relocation right. I wonder whether there is a better trade-off than that. You keep all the details of control orders, including relocation, but you go from “belief” to “balance of probabilities”. Therefore, you are tougher in deciding to give a suspect a TPIM but you treat him in the same way as you would have treated him under a control order. Either way, the measure will be tested in courts of law and will then have to be modified. As my noble friend Lord Hunt and others have said, the relocation element gave the security services an effective weapon in controlling a likely terrorist. Therefore, perhaps we should retain that and make the test for the Home Secretary much tougher than “belief” by making it “balance of probabilities”. I would understand that trade-off.
I want to say one more thing about the effectiveness of this measure. The noble Lord, Lord Macdonald, who knows much more about this than I do, said that any such procedure is tested by prosecuting the likely terrorist. I think that there is another test of effectiveness but it is very hard to substantiate. By imposing either a control order or a TPIM, the act which the likely terrorist could have committed does not happen, and therefore the effectiveness of the control order or TPIM is very hard to prove. A lot of counterterrorism work is often effective not because it finds terrorists but because it prevents the occurrence of things which could have happened. Therefore, I think that there is an alternative route for measuring effectiveness in this case. This is not a crime like any other; it is a crime which, were it committed, could have serious consequences. We have to try to prevent someone committing a crime which could have serious consequences but, if he has not yet committed it, it might be very difficult to prosecute him. Therefore, there are all those problems.
The Government should make up their mind whether they want to be tough about the effectiveness of TPIMs or control orders. However, they should also be quite demanding about the proof that a Home Secretary has to give in order to make TPIMs admissible, and that is where the idea of balance of probabilities comes in. I think that that would strike a better balance in relation to effectiveness than has been the case so far.
Lord Carlile of Berriew
My Lords, it is always interesting to follow the noble Lord, Lord Desai, in debate. He has not disappointed us; he has used his usual capacity to place a cat among the pigeons.
I should start by declaring an interest. Although I ceased to be the independent reviewer of terrorism legislation in February this year, I still hold two positions relating to security in Northern Ireland.
I, too, welcome my noble friend Lord Henley to his ministerial place. I look forward to working with him on this important Bill and other significant issues. I know that he will agree with everyone who has said that we shall all miss his predecessor, my noble friend Lady Browning. She will be a hard act to follow, and we wish her the fullest of health as soon as possible.
I approach this debate by reiterating the Burkean party conference mantra of the Deputy Prime Minister, Mr Clegg: we should do not what is merely easy; we should do what is right. That mantra has a particular resonance in relation to at least one aspect of this Bill: the question of relocation. I listened with interest to the noble Lord, Lord Reid, who was a distinguished Home Secretary, talking about representations from constituents. I can tell the House that in my nine and a quarter years as independent reviewer, I received but a handful of letters or e-mails from private citizens about control orders. They did not appear to raise particular public interest.
I believe that the Government were absolutely right as a new Government to carry out a review of counterterrorism law, practice and policy. I congratulate them on many of the conclusions reached in the counterterrorism review. The two-year limit on TPIMs is something for which I long argued in relation to control orders. Raising the standard of proof is the right thing to do. Indeed, if we look at all the judgments in the cases, they all reached the highest standard of proof which is now to be included. Giving people who are subject to these orders mobile phones and some form of electronic media is the correct recognition of their rights.
I listened to the comments of the noble Lord, Lord Pannick, and my noble friend Lord Goodhart with enormous respect. I think that my view is with the noble Lord, Lord Hunt: the nature of an order such as this is an executive act and the nature of review or appeal is a judicial act. If I may cite the example of deportation orders, there are at least two people in the House today who have made large numbers of deportation orders as an executive act and they have been robustly reviewed and appealed before the courts. That is a perfectly conventional and correct procedure.
I am a little worried by the fact that my party entered government with an almost visceral opposition to any specialty legislation in connection with terrorism if there was any suspicion of an adjustment of human rights assumptions and norms against the interests of any individuals that might affect their freedom of action. Of course, since entering government, Ministers have seen the evidence, and the result of that evidence is seen to a great extent in the Bill.
Nobody has yet mentioned the context in which this matter is being debated, and I remind the House of the threat level that was changed downwards by the Joint Terrorism Analysis Centre—JTAC, which is an independent body for this purpose—on 11 July this year. The threat level was changed on that day from severe to substantial. What does “substantial” mean? I do not believe this to be in dispute between any parties in this House. The threat level “substantial” means that a terrorist attack remains a strong possibility and may occur without warning. It means what it says. Further, the impending and very welcome Olympic and Paralympic Games mean that the threat level is most unlikely to be reduced until after those great festivals are over.
What does the threat mean to the public whom the Government have a first duty to represent and protect? It means that there is a strong possibility—remember those words—of a single or multiple suicide bombing attack occurring entirely unpredictably, with consequent death and injury on at least the scale of the events in London in July 2005. I remind your Lordships that in the 7/7 attacks, not only were 52 people murdered by terrorists, but more than 770 people were injured, some extremely seriously. Further, it is worrying that violent jihadist terrorism techniques have become more varied since 2005, including the technique—if that be the right word—of massacre by the use of automatic weapons, as in Mumbai on 26 November 2008 and as elsewhere more recently.
I have heard, and I think we have heard in this House, repeated suggestions that control orders breach the Human Rights Act 1998 and the European Convention on Human Rights. I invite the Minister to confirm that that issue has been litigated and that control orders have been held to be compliant with the European Convention on Human Rights. I ask the House to lay to rest what I regard as the canard of non-compliance. What we have in this Bill is close to control orders, with one material element removed: the power to order relocation of the individual in question.
I am a little puzzled by the title of the Bill and the emphasis on investigation. There is an implication that this is something new, and it has been perpetuated by my noble friend Lord Macdonald. It is not. Investigation and prosecution have always been the aim before a control order was issued and as it continued. I have attended on a number of occasions a committee called the control orders review group—CORG—which is a multidisciplinary committee that sits in the Home Office and considers every control order in detail, regularly, person by person, with the police officers and others dealing with that controlee present at the meeting. Investigation is continuous. A control order or a TPIM is a tool to be used when for the time being investigation and prosecution can go no further. I apprehend that my noble friend, during his distinguished period as DPP, will have been consulted about such cases and on that basis. The whole basis was that at that time investigation could not be brought to fruition. Of course, the CORG process means that at a further time it will be considered, and it is. The Crown Prosecution Service’s admirable terrorism group, created by my noble friend to a very high quality, does exactly that.
The noble Lord, Lord Freeman, spoke from his business perspective—I believe that he is, or was, chairman of one of the leading technology companies—about the technology that is now available. Of course we should welcome and use the technology. The Government have a responsibility that they do not always exercise—this applies not to any particular Government—to use the latest technology that will make fewer TPIMs or control orders necessary. However, technology is not necessarily the answer. Greater resources are welcome, but they are not necessarily the answer. We have been told that there will be higher levels of surveillance, but the reality is that you have to have somewhere to carry out surveillance from, and it is not always possible in relation to intelligence counterintuitive controlees.
I agree with the table issued this morning by Liberty confirming the high degree of similarity between control orders and TPIMs, and I welcome the similarities. My noble friend Lord Macdonald mentioned that there have been absconds. There have been, but perhaps he should have mentioned that there has been none in the past five years and that the techniques of securing that there are no absconds have improved dramatically, not least through the use of better technology.
With my experience from the beginning of control orders until early this year, I wonder why we are troubling to replace a functioning system with another that has almost entirely the same arms, body and legs, but I agree with my noble friend Lord Howard that, as I have already intimated, some of the changes are welcome. However, there is one leg missing from the Bill, and for now, in my view, it gives this legislation a distinct limp. It is the continuing power to order relocation, subject, of course, to the usual court procedures. On the evidence available, I am persuaded firmly—I choose my words carefully—to the view that it would be negligent to remove relocation from the main provisions. The noble Lord, Lord Harris of Haringey, and other noble Lords, have already referred to the open judgment given by Mr Justice Simon on 20 May 2011 in the case of CD and in other cases. In the CD case, a very detailed and succinct factual judgment was given by the learned judge. We have already been reminded that he said that the relocation obligation is a necessary and proportionate measure to protect the public from the real and immediate risk of a terrorist attack. I echo the words of the noble Lord, Lord Harris: who asked for that relocation provision? It was this Home Secretary. Why did she ask for it? Because she rightly judged it to be necessary. In what context did she ask for it? It was after the counterterrorism review, after my noble friend's independent scrutiny report and, presumably, after she had very carefully considered, on the advice of her extremely able officials, whether it was necessary and proportionate to do so. Why did she not say, “We’re not going to ask for relocation because we believe it is not necessary any more”? The answer is that she believed that it was necessary in that case, which is but one example of several cases where the conclusion was reached that relocation was not merely proportionate but necessary in accordance with the evidence given by Deputy Assistant Commissioner Osborne.
My conclusion from those cases is that the protection of the public will be diminished, I am afraid deliberately, by the removal of relocation from the main legislation. The current alternative proposed by the Government would allow relocation to be ordered in exceptional circumstances, subject to the enactment of a draft Bill. Generally, Parliament would be required to debate and vote on such measures before they came into force. It would therefore be required to determine whether the circumstances at the time merited such enhanced provisions. That is a clumsy proposal: it is the worst form of legislative disorder. It completely ignores the realities of operational activity against terrorism. The notion of meaningful parliamentary debate in such circumstances beggars belief and invites legal challenge. The Mad Hatter would await his invitation to any such debate with confidence that he would receive it.
I hope that relocation will not be needed at all in due course. I favour a sunset clause in the Bill that would include relocation. Relocation should continue as an element of TPIMs until the end of 2012, after the Olympic Games, and should then be repealed, subject only to affirmative resolutions of each House of Parliament. This would mean that there would be further consideration by Parliament in less than 15 months from now, following proper protection of the public in the intervening period. I hope that the Government will accept that that is a sensible course and will table amendments to that effect. If not, I am prepared to do so myself, because this is a very important lacuna in the provision.
Lord Hennessy of Nympsfield
My Lords, when an open society such as ours finds itself confronted by a vivid, immediate and largely unanticipated threat, as we experienced a decade ago in the tense days following 9/11, part of the response has to be shaped by the need to do a deal with ourselves. If we decide, as we did, to frame new and tougher counterterrorist legislation, we must, given our instincts and our traditions, set out to cast the new statutes in such a way that they are plainly an unwelcome aberration from the norms and should endure only as long as they are required. At moments of shock and attack such as the July 2005 bombings in London, we need always to emphasise the gap between ourselves and those who seek to deprive others not just of liberty but of life; to avoid narrowing the gap; and to prevent our new laws from coarsening our politics and blunting the sensitive social instincts and systems that are essential to keeping our open society worthy of its name.
Part of this involves the reopening and re-examination of the temporary deal embedded in our counterterrorist legislation at regular intervals and when circumstances allow. The Bill before us represents a welcome chance to revisit one of the most controversial ingredients of the new protective state we have constructed over the 10 years since the atrocities of September 2001. Control orders, and the apparatus of special hearings and special advocates that accompany them, cut against the grain of our traditions and instincts. Therefore, I welcome the wish of the coalition to ease previous arrangements in the manner laid out in the review of counterterrorism and security powers published last January, and given legislative shape in the Bill before us. I welcome, too, the reduction to 14 days of detention without charge, which also flowed from that review.
For those without access to the assessments of the security service MI5, or sight of the product of the Joint Terrorism Analysis Centre, it would be impossible and wrong to assert, in definitive primary colours, personal conclusions about the proportionality of the Bill in relation to the terrorist threats that currently exist in our country. On this patch of legislative terrain, as my noble friend Lord Bew expressed so well earlier, a very high level of trust is involved. We have to place our faith in the collectors and analysts of current intelligence, and in the creation of a picture for Ministers that is painted with care, detail and context. We have to trust that the Ministers with responsibility for counterterrorism, individually and collectively, will test out the judgment of the intelligence providers and security advisers, the validity of their product and what it means for the defence of our people and of the realm, as well as for the individual on whom a control order or a TPIM might be imposed.
That said, I welcome the easements and new thresholds involved in the move from control orders to TPIMs. I have no objection to the enhanced TPIM legislation that we have in draft form, and the opportunity for pre-legislative scrutiny that it affords. It is in line with the tradition of emergency legislation from the Emergency Powers Act 1920 to the Civil Contingencies Act 2004 in terms of extra, latent power for the state in circumstances where the Government of the day can persuade Parliament of the temporary need to swiftly make these powers actual. The only occasion I know of in our lifetimes when this was not possible was the inevitably draconian draft Bill giving the state breathtaking powers over people, property and life itself that would have been rushed through Parliament in the last days of peace before World War III erupted, Parliament was prorogued and the Government subsequently broken up into 12 mini-kingdoms, each presided over by a Cabinet Minister/regional commissioner as, in effect, an absolute monarch in a bunker. The draft Emergency Powers (Defence) Bill to which I refer was framed in 1962-63 in the months following the Cuban missile crisis and only reached the public domain when it arrived at the National Archives, having been declassified under the 30-year rule in the mid-1990s when the Cold War was over.
The threats we face today are not of comparable magnitude, but they are very real. The outbreak of the Third World War was a highly unlikely contingency but an utterly catastrophic prospect—“beyond the imagination”, as a mid-1950s Cabinet Office study of the impact of a Russian thermonuclear assault on the UK put it. Jihadi-inspired terrorist attacks are not beyond the imagination. They have happened and, despite the best efforts of Crown servants both in and out of uniform who place themselves between us and danger, they will very likely happen again.
The number of individuals caught in the world of the control order or the proposed TPIM is about a dozen. However, quite rightly, the questions of their treatment and the length of time a suspected terrorist can be detained without charge have been among the most important weather-makers of the rolling conversation we have had since the passage of the terrorist legislation following the Belmarsh judgment by the Law Lords in 2004.
As the noble Lord, Lord Macdonald of River Glaven, pointed out in his Review of Counter-Terrorism and Security Powers, control orders have had a seriously harmful effect, not just on the liberty of those so controlled but on their health, well-being and family life as well. The noble Lord was also eloquent on the need to nurture and sustain a bias towards evidence-gathering and prosecution of those suspected of planning terrorist acts, rather than “warehousing” them—the noble Lord’s verb—by using control orders or TPIMs if this Bill becomes law.
Terrorist emergencies do not begin with a formal declaration of hostilities, nor do they end with a surrender document, unconditional or otherwise—nor did the Cold War, which inspired that fearful draft legislation in the 1960s. I suspect that this rolling conversation will continue long into the foreseeable future. Each time Parliament decides to perpetuate legislation that carries with it restrictions and procedures that cut against our shared instinctive grain, we should do so with reluctance and an awareness of the need to time-limit. This is why I would support an annual review of the provision, and of the desirability of sustaining that “enduring political consensus”, or as close as we can get to it, of which the Home Secretary spoke in her speech in another place on 26 January this year—a consensus that must rest on the idea of that lustrous philosopher of the open society, Sir Karl Popper, when he declared in 1945:
“We must plan for freedom and not only for security, if for no other reason than that only freedom can make security secure”.
Lord Ahmad of Wimbledon
My Lords, first, I join others in welcoming my noble friend the Minister to his new responsibilities. Clearly this is an area not only of great interest but of great importance, and I am sure he will discharge his duties with his usual aplomb. I also join other noble Lords in paying tribute to my noble friend Lady Browning. She is someone I have known for a very long time and I am sure I reflect the sentiments of everyone in your Lordships’ House in saying we will miss her style, humour and panache from the Front Bench, and we wish her a speedy return to the red Benches.
As my noble friend Lord Howard mentioned, the Bill in front of us today presents the need of balancing public security and protection of civil liberties. It is a difficult balance that we often find ourselves facing and, as he so aptly put it, it is a question ultimately of judgment. The noble Lord, Lord Carlile, asked us to reflect for a moment and put this debate into context. Why did control orders come about in the first instance? As we have heard from many noble Lords, terror remains a reality both globally and on our very own shores. I am sure all of us remember 7 July 2005 very well. That was the time terror arrived on our very doorstep. No longer was this something that we saw from a remote area, notwithstanding the issues we saw when we were confronted with terrorism from Northern Ireland. This time it was at the very heart of our capital and there was a difference: the impact of suicide bombing. Let us not forget that these were home-bred terrorists.
It is therefore important that we reflect upon the questions we reflected upon then in this very debate. What possessed these British-born individuals, some with very young families, some in the teaching profession, to become obsessed with the mission not only to take their lives but—under an extreme and perverse interpretation of their own noble faith and religious doctrine, so far removed for the teachings of their faith—to take the lives of others through the destruction of their own? It was an indiscriminate act and a devastating form of attack which had no single target, but the sole objective to destroy and invoke terror. It was in the aftermath of these very bombings that it was important that action was taken, and the Government at that time did act—under criticism at times, but in the best interests of the primary duty of any Government: to protect its citizens, and to seek to address and eradicate any possibility of the recurrence of such an evil and despicable atrocity.
Let us look at the facts: 53 people lost their lives right here in London and, as we heard from the noble Lord, Lord Carlile, many others were impacted by those heinous acts. Since the introduction of control orders, perhaps 50 people have fallen under their jurisdiction—fewer than the victims in 2005. That is what we must reflect upon as we debate this most important element of what any parliament debates, the security of its citizens. There remains today, six years on, the same need to ensure that whatever we do is necessary in fulfilling this primary duty.
Therefore, I welcome this debate and I welcome the new legislation because it moves towards what we have heard from several noble Lords about striking that crucial balance between protecting our citizens and the civil liberties of our country. I welcome the reduction of 28-day detention without charge to 14 days, and an end, perhaps, to the indiscriminate use of terror stop-and-search powers. We have to face the reality that things changed with 9/11 and 7/7—the world itself changed; our country changed. I also welcome the new requirements for magistrates to sanction any local authority intervention and, most importantly in this current age of austerity, extra resourcing behind this Bill.
I also welcome the stronger effort to deport foreign nationals involved in terrorist activities on our shores, while fully respecting our human rights obligations. However, in this respect, I ask my noble friend the Minister how many individuals under the current control order regime fall into this category, including those who are in the UK with leave to remain. We may seek to deport foreign nationals convicted of terror acts, but I believe this new legislation will be limited in its impact and effectiveness if we do not continue to apply the same stringent controls against what I would term imported extremism.
The UK has been and should always remain a place for free speech. We are able, in our democracy, institutions and society, to listen to a contrary opinion, a criticism of who we are and our way of life—we accept that. However, where that call transcends into a call for violence, terror or indeed the destruction of our country, community and society, we need to draw a line and be stringent in the application of controls on our borders. I therefore seek an assurance from my noble friend the Minister that there will remain, crucially, a strong sense of communication between all government agencies to ensure that we prevent such individuals, who are often nothing but preachers of hate and bigotry, from entering our shores.
As we reflect on the Bill and the travel restrictions in Schedule 1, as have been mentioned by other noble Lords, I suggest to my noble friend the Minister that any permission to leave should be not only subject to the Secretary of State’s permission but also that, again, robust channels are in place to ensure that all police authorities in the appropriate areas are informed and fully abreast of such travel arrangements.
On one element in the Bill, I bow to the experience and great wisdom in your Lordships’ House, and I look forward to the debate and discussions on the use of electronic communications. Let us not forget, as we look around the world and here in Britain, terror organisations do not ignore this. Indeed, they are becoming increasingly sophisticated in their use of electronic communication. Electronic media and social media are very much among their tools. I remain unconvinced that access to electronic media, albeit with the restrictive applications, should be allowed or is necessary.
In conclusion, I believe we all agree that there is a need to attack extremism. There is no doubt. There is a need to attack fanaticism in all its forms. Terror laws are aimed at preventing such acts. We would all ultimately rather do without such laws aimed at preventing such acts, in this day and age, and in our country and internationally we would hope that there would be no need for such legal intervention. But there is and this becomes very much part and parcel of the reality we face today, and it cannot be ignored.
Lord Judd
My Lords, like others I welcome the noble Lord, Lord Henley, to his new responsibilities, although, also like others, I am sorry to hear the reasons for his predecessor not being able to continue and wish her a speedy, full recovery. The noble Lord and I live in the same county. Here it is perhaps not widely known that he has a very high standing there. He has won the most important, prestigious prize for marmalade making. As a great lover of marmalade I look forward one day to tasting his, although he has tough standards because I have never tasted better marmalade than that made by my wife.
As has been argued, it is clearly the responsibility of the Government to protect those within their jurisdiction. There is no argument about that. But it is also their responsibility to protect those institutions, and the way in which they function, which protect the citizen’s right to freedom and justice. Freedom and justice are the cornerstones which make the United Kingdom a good place to live. Terrorism presents huge challenges on the first of those and complex challenges for the Government, security services and the police on the second. None of us wants to undermine our enviable system of justice for which previous and existing generations have struggled for centuries. None of us wants to give the terrorists or extremists the satisfaction of seeing us putting to one side the very principles which have come to define Britain at its best.
It is therefore right to scrutinise most carefully any legislative proposals which depart from the administration of justice as we have come to respect it: namely, the right of the defendant to know of what he or she is being accused; the right to defend themselves against such accusations; the right to proper legal processes; the right to a fair trial; the right not to be imprisoned, which must include control methods that do not involve imprisonment in its conventional sense; the principle of innocence unless guilt is proved; and the principle of justice at all times being seen to be done. When and how far can action we describe as terrorist legitimately permit us to depart from the principles we cherish as central to our way of life? Indeed, in highly charged and emotional areas which encompass large numbers of people, how far will such a departure undermine confidence, stability and security? We all know, and I have made a point of talking to some of the police most closely involved in security operations, that they can be successful only when they are working with the population and the population feel that they are on their side. We always have to be very wary of the dangers of counterproductivity.
Terrorism is crime. It is crime of the most abhorrent nature. But it is crime. Why elevate it to a special legal status? All our efforts should be to endeavour to meet it, to contain it, and to confront those who are accused of it in our proven legal system of criminal justice. Exceptions must always be just that—exceptions. They need to be carefully considered and prepared with those defining them as necessary exceptions. Those who do so must be held vigorously and clearly to account.
I believe that a central criticism of this Bill is that it repeats the danger of drifting into a systematisation of ongoing alternative methods of dealing with some people accused of criminality, albeit of an extreme form. It therefore risks playing into the hands of the extremists as they endeavour to manipulate anxiety, doubt and alienation. The Joint Committee on Human Rights has looked at this closely. I am very glad that my noble friend Lord Dubs brought this home in his interesting remarks. The JCHR’s report is worthy of close attention, as is its report on the remedial order which follows. I hope that the Minister, when he replies to both, will fully and carefully cover the findings of the Joint Committee. If my noble friend pursues, as I hope that he will, his observations with amendments, he can certainly count on my support.
It may be helpful for the House to hear the specific response on this Bill to some of the observations that the committee makes. I shall try to summarise them. Why is there not an even stronger emphasis on bringing proposed restrictions back into the domain of criminal due process? The noble Lord, Lord Macdonald, spoke strongly on this. Why is there not a precondition in the Bill that when restrictions are being imposed on an individual, the DPP or equivalent must be satisfied that a criminal investigation into that individual’s involvement in terrorist-related activity is justified and that none of the specified terrorism and investigation measures to be imposed on the individual will impede a criminal investigation?
Why is there not provision for judicial supervision in relation to ongoing criminal investigation with a requirement for consideration of reports on progress as happens in the judicial role supervising court-imposed bail conditions? Why is there no time limit on the restrictions to ensure that they last for only a maximum period of time—perhaps two years—while the criminal investigation is conducted? Why is there still no proposal to require the Secretary of State at the outset to provide an individual who is subject to special restrictions notice with sufficient information about the allegations against him to give effective instructions in relation to those allegations?
We all know that intercept is central to that. We really need to know what progress is being made on the admissibility in some form of intercept evidence in the proceedings against an individual. Surely, where secret evidence is relied on, there should be a provision in the Bill both for a statutory obligation for the Secretary of State to give reasons for imposing the restrictions and for special advocates to take instructions from those whom they represent after having seen the closed material where the judge permits this. Why is this not in the Bill? When I was on the Joint Committee on Human Rights—and that was some years ago now—I remember special advocates coming to see us to discuss how unhappy they were with their role. They felt in many ways that this contradicted everything they understood from their legal training and the calling of the profession as they understood it. They were expected to defend their clients without full exchange of information with them and without being able to discuss what they were defending their clients against. We understand the difficulties but this does mean that action on this front cannot be delayed.
The Joint Committee on Human Rights makes the telling point that although the new regime is less severe than the control orders regime was, it remains at a far remove from normal criminal due process. Does this not therefore make it right that there should be a provision for Parliament to scrutinise annually the continued need for such exceptional measures and to evaluate how they work in practice? I hope that the Minister will deal with these serious observations of the Joint Committee in his reply.
I conclude with one wider observation. We all know that around this issue there is a concern about human rights and commitment to human rights, and about where they stand in our society. What happens in this sphere is an extremely good illustration of what goes wrong. Somehow we have drifted into a position in which we see the commitment to human rights legislation as a kind of restriction on us and that somehow we have got to justify what we are doing against the requirements of human rights. But that is not what fired the whole move towards human rights at the end of the Second World War. Leaders of all parties—leaders of that coalition, led by Churchill—saw at the end of the war that human rights were going to be central to the future stability of the world. They were not an optional extra for a decent society, they were a pillar of stability. That was clear for all those who had been through the experience of the Second World War.
Somehow we have lost that conviction. We see human rights as an imposition, a restriction on our getting on with the job, as distinct from seeing them as a central, indispensable element in our fight against terrorism and extremism. We must get back that sense of commitment to human rights, not massage them and get them out of the way. Least of all should we start playing popularism with the public on the issue. We have got to regenerate a deep and meaningful commitment to why they are so essential.
Lord Palmer of Childs Hill
My Lords, I, too, welcome the noble Lord, Lord Henley, to his post. Someone who makes marmalade must have a lot going for him.
Clause 4(1)(c) includes the words,
“conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so”.
in the definition of involvement in terrorism-related activity. How does this relate to the existing provisions against the glorification of terrorism? Is it a lower evidential burden? Would it capture some of the more inflammatory speeches that we hear on demonstrations supporting jihad and resistance and so on?
The Bill before us is called the Terrorism Prevention and Investigation Measures Bill, and I look for ways of heading off disharmony often, but not always, between different ethnic groups. For many years I sat on a police gold strategy group in north-west London. The aim was to bring together the police, headed by the then borough commander, with representatives of the Jewish community, the Muslim community, Hindus and others. The idea was to deal with problems before they occurred and to seek to engender a feeling of trust between community groups and the police. I sat on it for years and I was never sure why I was invited to be on it other than, perhaps, the fact that I was known to the police.
Noble Lords have spoken about terrorism. In the midst of all the legal arguments it is worth emphasising that it is equally important that we build up and maintain an environment where local UK communities do not give support and substance to those aiming to commit and encourage or inflame actions that undermine our British harmony. The noble Lord, Lord Howard, gave an analogy of the United States of America, which made me look at my papers. I have a quote by Joseph Singer who is a lawyer with the Harvard Civil Rights-Civil Liberties Law Review. He says in this publication:
“Minimum standards regulations do not deprive us of freedom; rather, law promotes both freedom and democracy by outlawing social and economic relationships that are ‘subprime’ because they fall below the minimum standards acceptable for human relationships in a free and democratic society. It is time we acknowledged the regulations we too often take for granted. If we do that, we can debate what those laws should be, rather than focusing on a false debate about whether they should exist at all”.
I relate that to our debate because my noble friend Lord Macdonald spoke about rebalancing freedom and security. That is what we are talking about. How do we balance the civil rights about which some noble Lords have spoken with the security about which other noble Lords have spoken? The noble Lord, Lord Pannick, spoke about the role of the Minister versus the role of the judiciary. That is a very important factor. There is a role for both and they are not mutually exclusive. In the short term, the role of Ministers in taking Executive decisions of this nature may well be necessary. All Home Secretaries seem to have been convinced by the arguments in the past. It should be part of the procedure that control orders, as they were, or TPIMs as they will be, should last for as short a period of time as possible before a case comes before a judge or the courts.
I take issue with the noble Lord, Lord Pannick. There is a role for the Minister in this case. It is also necessary to keep that action as short as possible within the terms implied. Noble Lords have spoken about the possibility of having this reviewed within 15 months, two years or five years. Because the lapse of time became outdated and we thought that we could improve control orders—which is the way in which TPIMs are being talked about—I prophesy that in a period of years or even months we may be considering another change based on the experiences of that time.
We have been hearing about the use of electronic surveillance equipment. Some of that was not available even a few years ago. It has been improved and is continuing to improve. We may get to a time when it becomes “Beam me up, Scotty”, as they said in “Star Trek”. There are so many changes that will happen, and the legislation and its implementation will change as well.
I support the Bill. During its passage through this House, I hope that there will be some amendments made to it. Being 20th in the list, I will not talk about those possible amendments, but the basis of the Bill is right. There is a duty not only to civil liberties but to protect the people of this country, in as harmonious a way as possible.
Lord Lloyd of Berwick
My Lords, some noble Lords will remember, as I certainly do, when control orders were first introduced as an emergency measure in March 2005 after an all-night sitting. It was an emergency measure because the suspects then being detained in Belmarsh prison were due to be released within a few days as a result of a decision of the House of Lords in December 2004. The powers granted to the Home Secretary in 2005 were considered to be so extraordinary at the time that the Conservative opposition and the Liberal Democrats insisted on a sunset clause, and they carried the day in that respect. Six years later, those powers are to become in effect a permanent part of our constitution.
I had hoped that when the coalition Government took over, there would be an end to control orders. The coalition agreement promised to reverse the substantial erosion of civil liberties that had taken place under the previous Government and there was to be an extensive review of anti-terrorism measures. These were all good signs. I have not seen the evidence submitted to the review by the security services or the police, but I have seen the rest of the evidence, and I can say that with one exception, all the evidence in relation to control orders was in favour of abolition. Yet, once again, the Government have drawn back.
We are getting rid of relocation, and I am glad of that. Perhaps I may say to the noble Lord, Lord Hunt, that of course relocation is the most effective measure available, but in my view it is also the most inhumane. So there are improvements in the Bill which I welcome. But the fundamental objection is the same as it has always been: British subjects have been placed under severe restrictions so well described by the noble Baroness, Lady Stern, for lengthy periods by order of the Home Secretary, who is a member of the Executive, without ever having been convicted of an offence or, until recently, even being told what they were supposed to have done. Such powers are common enough in police states and, as the noble Lord, Lord Carlile, explained, they may be acceptable in Pakistan and India, but I never expected to see those powers exercised in England, save in time of war when the life of the nation is at stake.
Lord Carlile of Berriew
My Lords, with great respect to the noble and learned Lord, I really do not think he should be allowed to get away with that. The implication of what he has just said in what I take to be a rhetorical flourish is that what happens in Pakistan, for example, or what has happened in Sri Lanka, is to be equated with what has happened here. Does he not think that our judges, of whom he was one of the most distinguished in this country, have played an extremely sound and controlling role over the exercise of this jurisdiction and have ensured that in fact and in law, it was ECHR compatible?
Lord Lloyd of Berwick
I am very glad to hear what the noble Lord has said and I am happy to withdraw any implication that I may have made against what is done in Pakistan and India. However, I never expected to see these powers exercised here. The Secretary of State defends them on the ground that there is no alternative, but there is an alternative. There is another solution and the problem is not almost insoluble, as the right reverend Prelate suggested. The solution lies in covert surveillance. To my knowledge, it is the solution that has been adopted in Germany, for example, and has not been found wanting. Indeed, I believe it to have been adopted in every other western country and it has proved to be successful; control orders have not been relied on. Why should covert surveillance not prove equally successful here?
It may be said that surveillance is more expensive than control orders, and I expect that that is the case. But at least we would have saved the £10 million the Government have spent so far on defending control orders in the courts. In any event, cost should surely not be a consideration when it is the freedom of British subjects which is in issue. It is not as though very large numbers are involved. So far as I know, there have not been more than 12 in any year, as few as eight recently, and not more than 48 in all. Surely we could have found the money, and could still find the money if further resources are going to be made available, to solve this undoubted problem in the way that other countries have solved it; namely, through covert surveillance.
Lord Harris of Haringey
My Lords, I am grateful to the noble and learned Lord for giving way. As someone who has tried to understand the civil liberties arguments about this, perhaps I will be forgiven for asking him to explain to the House why the level of intrusive covert surveillance that would be necessary to provide the reassurance we all seek is somehow a less severe intrusion into someone’s civil liberties than control orders, TPIMs or whatever it might be, where the ground rules are set, explicit and subject to judicial review?
Lord Lloyd of Berwick
I would have thought that the answer to that question is obvious: under a surveillance regime, a person can live a perfectly ordinary life; under a control order, he cannot. That is the difference.
I have opposed control orders since they were first introduced in 2005 and every year since, and I would certainly oppose them now if I could. But I realise that I would get nowhere. The Official Opposition, which I had hoped might at least still be open to persuasion on this, has said that not only do they support the Bill, but they also actually regard it as being too weak.
Lord Hunt of Kings Heath
I do not support the Bill at all. I think that it is a complete nonsense. What is emerging is an inadequate piece of legislation, something which the Government themselves acknowledge because they are also publishing draft emergency legislation. We have a bizarre situation where twice this year the Home Secretary has argued that control orders are needed. We have yet to get an answer from the Government about how circumstances have changed in the past five months to suggest that the control orders which were used and needed five months ago will, under this Bill, no longer be available. I do not like this Bill at all.
Lord Lloyd of Berwick
That is the point that the noble Lord has already made on many occasions during the course of the debate. I fully accept that he opposes the Bill because he would make it stronger. I oppose the Bill because I think that it is already too strong, so obviously I have no hope there.
I will use my remaining minutes to say how the Bill could be improved. That is not difficult to do. The Bill currently provides for an order to be made by the Home Secretary but only after permission by the court and subject to review by the court as soon as is practicable after the order has been served. This is a most unusual and cumbersome procedure. It would surely be better and simpler for the Home Secretary to apply for the order and for the court to make the order in the normal way.
In her response to the excellent 16th report of the Joint Committee on Human Rights, the Home Secretary said that prevention orders of the kind we have before us in the Bill have become an established principle in our legal system. She cites anti-social behaviour orders, serious crime prevention orders and so on as examples. If serious crime prevention orders are to be the model, why does the Home Secretary not follow it through? Under the Serious Crime Act 2007, the Crown makes the application and the High Court or Crown Court makes the order. The same is true of anti-social behaviour orders except that the magistrate makes the order. I know of no case, and the Home Secretary cites none, where the order has been made by the Executive.
The noble Lord may argue that terrorism is different and that in terrorist cases the Home Secretary is in a better position to form a judgment than a court. That argument will not run as the courts have already held, in a case called Home Secretary v MB, that it is for the court to form its own view on the facts whether the individual has been involved in terrorism activity. If the court disagrees with the Home Secretary then it is the duty of the court to quash the order. The Government have accepted that that decision will apply when a review takes place, very shortly after a notice has been served under Clause 9. That being so, and it being accepted that it is the court’s decision that will prevail, what on earth is the point of the Home Secretary making the order in the first place?
In answer to the noble Lord, Lord Hunt, again—I hope to have better luck this time—there is no need to consult the judiciary about that proposal because the judges are already involved as the control order is currently administered at this stage of reviewing the orders made by the Home Secretary. There is nothing new for the judges in this. The sensible, logical order is for the Home Secretary to make the application—in that sense there will be a role for the Home Secretary—but for the court to make the order.
There is one other point, briefly. Why has the Home Secretary watered down the burden of proof? I agree on this with the noble Baroness, Lady Hamwee. Under the Serious Crime Act, which is apparently to be the model, the judge makes the order on the balance of probabilities—which is the normal standard of proof in civil cases. If the Serious Crime Act is the model, why should the same standard of proof not apply here? Once again, the noble Lord may argue that terrorism is in some way different. Once again, that argument will not run. If we want a precedent for the balance of probabilities being the appropriate standard of proof in terrorist cases, one need only look at Section 4 of the very Act that we are now being asked to repeal. In derogation cases, it is the court that makes the order on the application of the Home Secretary. The court decides the matter on the ordinary civil standard of proof. Why has that model not been adopted here?
One gets the same from Section 26 of the Act, which has been referred to, where the test is the balance of probabilities rather than the reasonable belief of the Home Secretary. What is the logic of having one test in Clause 3 and a different test in Section 26? I shall in due course propose amendments very simply to the effect—incidentally, they are quite simple to draft—that the order should be imposed by the court on the application of the Home Secretary and that the decision of the court should, as in all other cases, be the balance of probabilities.
Lord James of Blackheath
My Lords, I start with the proposition that anybody who gets away with improper or criminal action in a matter such as terrorism has effectively created a precedent which is bound in time to be repeated. I am concerned that there are three instances that have occurred in the past which the Bill at present does nothing to address and which we should perhaps be aware of.
The first occurs in the systematic exploitation of quoted companies on the British Stock Exchange. As I recounted to your Lordships’ House on 1 November last year, the IRA once took effective control of five quoted companies and manipulated them entirely to its own interests until, in every case, their eventual destruction, to the great dismay of the British investing public who lost a total of some £3 billion of market value as a result. In these cases, what the IRA did was simple and very clever. It was at that time beginning to recognise that there would be an end to hostilities and that it needed to do something to look after its own separate and personal interests. It was by that time intensely a criminal organisation, resulting in exploitation and bank robbery, and it had a lot of cash coming in, so it put its money into small parcels of shares, buying into British companies quoted on the London Stock Exchange. This went completely unmonitored and unseen by the authorities at the London Stock Exchange, who must truly have been asleep on the job at the time. The result was that the IRA ended up having majority or controlling shareholdings in five quoted companies. Then it took its own money from other things and invited the companies concerned to invoice it for work that had never been performed. The result was that the profits of those companies shot up, as did the shareholdings, making an immense amount of money for the IRA on the increments of the investments it had made.
That obviously required somebody in each company prepared to work with the IRA. I do not know whether those people were rewarded financially for that. Eventually, the Bank of England became aware of this and started to introduce a number of people to take control of the companies to try to manage them out. I was one of those people. You eventually got a call from somebody with a strong Irish accent telling you that he had a need that day for a certain amount of money to be sent to pay for something for them. I got a call one morning starting, “Good morning, Chairman Boyo”, which was always the cue. You knew you were in trouble. I asked what was the problem. I was told, “We know that you have just raised an extra £20 million in borrowing from Lloyds Bank, and we need £7 million of it immediately to pay for a little matter which is being delivered to one of our ports today. Send me the £7 million immediately”.
By this time, I had already recognised that trouble was coming. Eddie George had put me in as chairman of that company, and I had a well established routine to perform. I immediately made the call I had to make, told them that the £7 million was required and that there was going to be a delivery at a certain port. When the ship eventually got there, the SAS had kindly decided to help download the cargo. Three hours later, there were two tightly sealed containers on the dockside. One contained 12 extremely angry Irishmen, and the other contained the entire collection of Semtex and other material which had been sent from a country that I will not identify. Meanwhile, the angriest person was the captain of the ship, who had to get a signature on the slip to release the payment of £7 million. The Irishmen were now so upset that they were not prepared to incriminate themselves by signing it. I had a very good day, and my £7 million was back in my company’s bank account by the end of it. That was one of the best day’s work we ever did.
The IRA ruined some companies completely. It took one company that had £5 million a year profit and in the course of two years cranked that up to £127 million a year by paying for work that was never performed. They all went bankrupt in the end, but the point is that it was a major failure by the London Stock Exchange in monitoring this, and it could easily be done again. The Mafia had an attempt at doing it on the London Stock Exchange, which was blocked in the light of the experience with the Irish. We ought to have some statutory obligation on the investing community and the Stock Exchange, in particular, to be alert to and watch for careful mismanagement of the market in order to launder terrorist money in this way. It will be tried again because it was so successful. It is a very important point.
In another respect, I would like to emphasise the importance that the banks have, which they do not fulfil fully for us because they are too frightened of data protection rules. I have a vivid memory of a day in 1989 when, in the company of a certain Dr David Kelly, we were unfolding the story of the Iraqi supergun, and we needed to know whether any other such devices were being made. We knew that the National Westminster Bank was the paymaster for the gun, so we went together to see the National Westminster Bank and asked it to make available all the details of all the people that it was paying for armament developments with Iraq. The bank refused, saying, “We absolutely cannot touch it because it would be a breach of our obligations to our customers”. Later the same day, we went to see Lloyds Bank and asked people there the same question, and Lloyds Bank immediately unfolded the whole lot to us. Remarkably, at the end, they turned to Dr Kelly and said, “While you’re here, Dr Kelly, would you like to see the details of the capacitors for the Iranian nuclear bomb as well?”. Which of those two banks behaved correctly that day? Lloyds did, but we need to clean up data protection rules to give an obligation to the banks and other financial organisations to tell what they know when they are frightened of doing so, as they are at the moment.
The last area of concern that I have is a slightly unusual one. If you have large contracts with overseas countries where there is potential for state terrorism being practised, as we did in the case of Libya, where one of my companies had very big contracts worth £600 million or £700 million each, they would always write a clause in requiring us to make a deduction from the invoices of anywhere between 1 per cent and 3 per cent for what we supposed would be a slush fund. We used to call it the WWWP fund, which stood for “whisky, women and white powder”. The fund would be about 1 per cent to 3 per cent of a total billing of about £600 million, which was quite a lot of money. We put this into a little fund, which would be kept somewhere up in the Leeds area, and everything would be fine as long as they just wanted to use the fund for fun and games when they sent across their executives or Ministers to come and have a look at what we were doing. The trouble would come when, after about a year of this, they would suddenly instruct you that you had to send the money to a bank account in Rome, and you would have to fund that bank account for about €200,000 to €250,000. In this way, these potentially terrorist-sponsoring countries would get the money under the radar of normal bank account creation. It would have been done legitimately by a British company sending its money.
I would like to think that I am wrong, but I suspect that at this present moment there are probably some four or five such accounts in the outlying districts of Rome funded to about €200,000 to €300,000, waiting for any ambitious jihadist to go and buy himself a rocket-propelled grenade launcher and a few shells to take a pot-shot at a Popemobile and its occupant at some point in time. I am sure that those funds have been set up and survive to this day. We need to have an absolute obligation on any company that is asked to set up a slush fund for a potential terrorist-sponsoring state to declare it at the outset. There needs to be a go-to number established at the Bank of England or somewhere whereby that sort of malpractice can be monitored as it unfolds.
So I have three areas of concern. We need better control of the regulatory processes of inward investment via the Stock Exchange; we need much better opening out of the dialogues with the banks, which know before anybody else much more than we do; and we need, essentially, to stop the under-the-radar slush accounting being set up for access for terrorists abroad.
Lord Morgan
My Lords, like all other speakers I congratulate the Minister on his new responsibility. I hope that the fact that I am the 23rd speaker in an almost empty House does not in any way impugn the sincerity of what I have to say.
The Minister takes office on the basis or against the background of a very unhappy period of British history for civil liberties. We have seen a very dark chapter of our history, and all three main parties were responsible for it. It was the weakest aspect of the domestic policy of the last Labour Government, along externally with the war in Iraq, with which it was of course closely connected. That Government did many splendid things—they passed the Human Rights Act. But they also pursued a policy of control and surveillance which curtailed our liberties and significantly lost electoral support. It is a major reason why many people switched from Labour to the Liberal Democrats at the last election.
I joined the Labour Party in the 1950s, believing that it was a libertarian party. It was led then by Hugh Gaitskell and Nye Bevan, who disagreed about many things but were shoulder to shoulder on civil liberties. I remember reading books by Harold Laski, a great civil libertarian and a long-forgotten figure. His correspondence with Oliver Wendell Holmes is great testament to his strength of view. As a democratic socialist, Harold Laski rejected the tyranny of capitalism and of the state. I wonder quite where the Labour Party is now.
The coalition gave evidence of a fresh approach in this area. Although I do not support the coalition at all, I welcomed the fact that it abolished ID cards, cut down the number of names on databases and promised to repeal the previous legislation on control orders—legislation which along with 23 other Labour Peers, headed by my noble and learned friend Lord Irvine, I voted against back in 2005. I welcome the fact that the coalition took advice from Liberty and Justice and other groups of that kind. The Deputy Prime Minister, Nick Clegg, proposed that the regime of control would come to an end. Sadly, it has not come to an end at all, and I totally agree with the views expressed by the noble and learned Lord, Lord Lloyd. The Conservatives have pushed on with a measure that is in essentials very similar to its unfortunate predecessor, and in the party conference we have heard blood-curdling threats to the Human Rights Act in some rather bizarre comments from the Home Secretary. I think back with some fondness to remarks in this area made by the late Lord Kingsland, who was a friend of mine. I am afraid that the Liberal Democrats have reversed their policy on this, as on so many other issues. This is a regrettable story. It is not surprising that Lord Bingham, in his wonderful book on the rule of law, cites the former chief justice of South Africa, who compares restrictions of this kind to the house arrests and other disagreeable features of the regime under apartheid in that country.
The Bill deals with a very serious situation. I happily and readily concede that improvements have been made. I certainly welcome the diminution of detention without trial, which was a great tarnishing of our reputation previously. But as one or two other noble Lords have said, it stands outside the criminal justice system and, in fundamental respects, flouts the rule of law. It does not, I believe, with all respect to the noble Lord, Lord Howard, strike a balance; I do not see a balance here. It creates a system in which decisions about the deprivation of liberty reside not with law or legal authorities but with the Executive. To that extent, in my view, it distorts the workings and balance of our constitution. Fundamental restrictions on liberty are decided not by judges or the police, but by the instruments of the state, without any charge being formulated in so doing. Further, it is based on a subjective proof. We are told it is now based on the reasonable belief of the Home Secretary, which is said to be an improvement—and perhaps semantically it is—but I think it is a distinction without a real difference. We have a system imposed, therefore, that is based on raison d’état, which has had a grim history in the history of mankind and was wonderfully challenged by one of our greatest figures, Sir Winston Churchill, who described it as,
“in the highest degree odious”.
He said that in the course of the Second World War, when we had a few threats to security in this country.
The controls of the court over the actions of the Executive in this respect are somewhat strengthened, but only in a very general way. The judiciary are given broad supervision over whether the Government have or have not acted properly, but there is no real way for the courts to examine in detail what is happening or what the basis of a Minister’s belief is. In this sense, the Home Secretary is placed above and beyond the law.
A fact that I find particularly detestable is that the whole process is secret. The individual detained, perhaps for a long period and very likely released without charge at the end of it, will not be able to find out in detail the case against him or her. They will not be able to communicate properly with their legal representative; the special advocate cannot take instructions from a client. So you have a situation in which these people—who are innocent under the law, have committed no offence and are charged with nothing—will not have the same rights as criminal defendants, who are charged but are told in detail about the evidence against them and can communicate with their legal representatives.
The restrictions against them will be extremely severe and punitive. The old phrase was “the punishment should fit the crime”; now we have the punishment before the crime. This, it seems to me, is an abuse of justice. These people cannot have anything like a normal life; they cannot go out properly, meet other people, conduct a normal existence. They are treated like convicted criminals, yet they are not criminals. They have had no trial, they have been charged with no offence, they have not been prosecuted. It does seem to me an abuse of government that this should happen, and now we are going to have it made an extended process of our procedures. I am very glad to hear there is going to be a two-year time limit, but it remains shrouded in secrecy and subject to minimal judicial and legal control. I certainly support the views of those who have said there should be an annual review of how these very draconian, illiberal and severe restrictions should be imposed.
It is said, of course—and correctly so—that these are extraordinary measures to deal with extraordinary threats. None of us needs reminding of the terrible experiences there have been in relation to terrorism, but it is important to say that this opposition is not just a matter of woolly-minded principle, Guardian readers having their head or the civil liberties lobby behaving in a self-indulgent way. The fact is, as other speakers—notably the noble Lord, Lord Macdonald—have said, such measures actually make it more difficult to protect the public and to obtain evidence. There is evidence, notably intercept evidence, that is currently not being used. We already have perfectly workable systems of police operations, such as police bail, which operate in normal criminal cases. They are not operating here and one can only conclude that institutional convenience is being placed above what seems to me the sacred cause of human liberty. I find this all deeply tragic.
My wife and I attended a meeting convened by a Conservative MP—I forget her name, I am afraid —a few weeks ago about Magna Carta and how we were to celebrate it in 2015. Well, we do celebrate it. President Obama celebrated it in his great speech here. He celebrated the Petition of Right and the role of habeas corpus in our affairs as he celebrated views that were reaffirmed by that great man, Sir Edward Coke, in the 17th century. How ironic that we are commemorating Magna Carta by trampling on the fundamental freedoms of free-born British citizens.
Lord Phillips of Sudbury
My Lords, as the last Back-Bench speaker, I am in the happy position of being able to rely on excellent contributions to this excellent debate by many here now. I associate myself with all that has been said by noble Lords vis-à-vis the appointment of the Minister and, indeed, his predecessor.
The few remarks I shall make are based around a sense, rather different from that of the noble Lord, Lord Morgan, that in this intensely difficult business of balancing public safety with individual liberty, this Bill reaches a reasonable outcome. There is no perfect answer. This is a balance we all grapple with, all the time, in all ages. None the less, I think, subject to one major limitation that I shall come to, that this is a reasonable outcome. Many aspects of it are arguable, and I may yet be persuadable in the debates to come, but I say that.
The noble Lord, Lord Hennessy, referred to the need to trust the security services, and I wholly agree with his quote from Karl Popper, which seems to me to be a very wise encapsulation of liberty. I think trust in the security services should go only so far. The old cliché of liberty requiring eternal vigilance is true, and the security services are overpressed and hugely pressured. I was at the meeting yesterday, which my noble friend Lady Hamwee referred to, where this young, born-and-bred Englishman told of his years under a control order with his life ruined, and for what? When the court eventually overthrew the order, the judge made extremely critical remarks about the basis upon which the order could have originally been imposed. One has to have that in mind.
Yet I fully accept that we should be proud of and grateful for the security services in this country. It is just that, in the modern age, the circumstances they grapple with are intensely difficult. The mobility and anonymity of modern life are enemies to security, and the technology that comes to our aid is also partly an abettor of some of the more gruesome plans that are hatched.
I would like to commend the House. Perhaps one should not be self-congratulatory, but it seems to me that the protection of liberty is particularly the job of this House. I do not think there is any denying that, understandably, the public are more easily persuaded in relation to public safety issues than in relation to individual liberties. We have seen examples of that quite recently, and it behoves us to recollect what the noble Lord, Lord Judd, said in an impassioned coda to his speech: human rights are not someone else's but ours. We characterise our society and culture by these great entrenched individual liberties. Our democracy is built around them, and therefore it is right that we should be extremely reluctant to go down the path of secret trials and the rest of it.
I am persuaded to go that way only because we had one plangent example of what can lie behind all this from my noble friend Lord Macdonald. It was about an intercept conversation that plainly reveals two people planning a grievous terrorist attack who cannot be brought to justice because of the inability of the court to hear intercept evidence. Yet if it is not taken with ultimate seriousness, and if not protected by exceptional provisions, such as this Bill provides, it could, and in some cases would, lead to ghastly public disasters. Although the freedom to go on living is the most precious liberty of all, in the liberty which protects that there is a great paradox, as my noble friend Lady Hamwee said: the protections we give to liberty head off disaster because they undermine the basis upon which extremism flourishes and can build.
My big reservation with the Bill is one that has been well aired by my noble friend Lord Goodhart, the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Lloyd. It is the fact that the Secretary of State is the person who first imposes one of these orders. I think that the noble Lord, Lord Hunt, said that that was fair enough because the Secretary of State is responsible for security. That is a point of view, but not one that I share.
The task of imposing one of these TPIMs is about as difficult as one can imagine. Given the bizarre circumstances in which that judgment has to be made, it seems to be, par excellence, one for a senior judge who is used to weighing evidence, has a nose for truth and falsehood, and whose experience will fit him or her to reach what are often pressured and speedy decisions, never forgetting that Home Secretaries are under the most intense pressure—we have two former Home Secretaries sitting here now. Very often, no doubt, they have 10 balls which are all urgent and important to juggle simultaneously and have to rely to a high degree upon their civil servants. I do not for a moment disparage any of those civil servants if I say that such a crucial decision is, par excellence, one for an experienced judge. If that reform was built into this Bill, I would be assuaged at the otherwise heavy intrusions it makes upon ancient liberties. At this time of night, I do not really want to say much more except to line up with those who feel that an annual renewal of these powers is, in all the circumstances, perhaps the better course.
Lord Reid of Cardowan
Speaking in the gap, I have very few minutes, but I want to try to cover the context, the principle and the practicalities of this Bill. Perhaps I might make the point first, since there has been a distinction made between freedoms in law and politicians, that the freedoms we have in law were provided by politicians. They were implemented by judges and lawyers, but provided through the struggle of politicians. In the midst of all the many balls we had to juggle, I am sure that there was no higher responsibility and burden on our shoulders and no more concentrated effort from my predecessors and myself than the protection of the lives, liberties and livelihoods of the people of this country. I do not defer to lawyers as being the creators of our freedoms, I am afraid. I am sorry if that upsets them, but I am not a lawyer, as will be obvious. That is neither a boast nor a complaint but a matter of fact. I am an historian, and I want to say something about the historical context because to debate these measures without understanding the development of the threat is to debate them in a sterile vacuum and to miss the point that we have to see as politicians.
The first point about the threat is that it is not just a crime, as my noble friend Lord Judd said. It is a crime, but one with a political objective: the imposition of the will and the political desires of a group of people, not only in this country but internationally, which would undermine the very freedoms that we want and purport to defend in this House.
Secondly, it is not the same threat as 30 or 40 years ago. Intention and capability, the two elements of threat, are both now unconstrained because anyone who was willing to kill thousands of people in a terrorist attack in New York and Washington will be prepared to kill hundreds of thousands of people towards their political objective. That is the intention that is unconstrained by any morality or legality, or by the Geneva Convention or by anything else. The capability is now also unconstrained. The Nazis may have wanted to commit genocide but were constrained by Zyklon B canisters. Radiological, biological and dirty nuclear bombs now make it absolutely necessary for us to recognise that if that intention and capability ever come together, there will be a massacre of our people.
Thirdly, the threat has changed because it is now in the hands of individuals. My noble friend Lord Judd asked what has changed since 1945. It is not a lack of respect for rights; it is that the European Convention on Human Rights was based on the historical experience, of the fascist states in particular, and the recognition that the state was always the oppressor and the individual always the victim. That is no longer the case. Small groups of individuals, with the intention and capability that they have, can now be the perpetrators of the type of massacre that we previously said only states could perpetrate. That is the context that has been missing from some of this debate.
My other point is about the principle of the Bill. It has been conceded that extraordinary measures are necessary. The objection which many of our legal friends had against the control orders, and which I understood, was that they were extraordinary measures. They are; but the problem is that the Government have taken a step to breach the principle but diminished the effectiveness. I have no problem with more accountability to Parliament or with many of the measures in this Bill, but I have a fundamental problem, as has the noble Lord, Lord Carlile, with taking away the right of relocation.
Finally, I have deep suspicions that the Government have also conceded that the practical measures in the Bill are almost unnecessary because they have drafted another Bill in case it is needed. I am sure that I, along with many other Ministers and Governments, closed the door after the horse had bolted. I am sure that lack of foresight caused that and that sometimes, even when we had foresight, we closed the door after the horse had bolted. However, I genuinely have never known a Government who planned in advance to close the door after the horse had bolted, and this horse is the potential murder and massacre of so many of our citizens. Your Lordships know that the threat level is at “substantial”. It is still huge, as the noble Lord, Lord Carlile, said, but that is less than it has been. For 10 years, it has been at “severe”. God forbid that it should go to “critical”. If it does, I want the Government to know that I hope that they have got this right. This is not a matter of party politics. I genuinely hope that, but I fear that they have got it wrong, and I fear the consequences because all of us in this House will have to bear them if by diminishing the operational capability to counter terrorism and increasing the risk, something terrible were to happen—say, in the next year. I hope that it does not, and I wish the Government well, despite my reservations.
Lord Rosser
My Lords, I associate myself with the words of welcome already expressed to the noble Lord, Lord Henley, and with the words of appreciation and the expression of good wishes already expressed to the noble Baroness, Lady Browning.
This has been a passionate debate at times, with strongly held and widely differing views being expressed about the Bill. The reason why the Bill is before us is the statement in the coalition agreement that there would be a review of control orders. There is an objection in some parts of the coalition to the current control orders, and the Bill is an attempt to pretend that the coalition is making a significant change to the current arrangements. In reality, with regard to the continuation of control orders, the Government are tinkering at the edges and it fools no one. The difficulty is that the tinkering being undertaken through the Bill is potentially damaging and dangerous, as well as potentially costly.
The tinkering with the current arrangements includes the renaming of control orders to terrorism prevention and investigation measures notices; a change in the threshold from reasonable suspicion of involvement in terrorism-related activity to reasonable belief; a lengthy list of prescribed powers removing the ability of the Secretary of State also to impose any further obligations needed to prevent or restrict an individual’s involvement in terrorism-related activity; an overnight residence measure instead of curfew orders, which averaged just under 12 hours in 2010; and the TPIM regime being reviewed every five years instead of the annual renewal in Parliament required for control orders.
Unlike control orders, the Bill does not include a power of relocation to another part of the country without consent. Despite the interventions earlier by the noble Lord, Lord Phillips of Sudbury, I do not think that this was done on the basis that there were other provisions in the Bill that could achieve the same objectives.
The Government have clearly had second thoughts about the wisdom of that last matter; shortly before the Third Reading of the Bill in the other place they published the Draft Enhanced Terrorism Prevention and Investigation Measures Bill, which provides powers for the Home Secretary to impose enhanced TPIM notices. The powers available under such enhanced notices would include relocation without consent, which the Bill before us omits, and a ban on using communication devices, which the Bill before us restricts.
In reality the Government are revising the Bill before it has even been passed but, presumably because of the political embarrassment involved in having to put back provisions of the current control order arrangements in the interests of national security, they are seeking to do so not by putting the change in this Bill but by producing another draft Bill that can be debated and voted on by Parliament when needed at a later date. Clearly, the Government now accept that there is a requirement for a continuation of these additional powers in the interests of national security, otherwise they would not be trying to retain them in the somewhat back-door fashion they are proposing. In other words, the Government recognise that the coalition politicking involved in the Bill before us has put national security at risk.
However, the Government's proposed way of rectifying their error of judgment gives rise to further concerns. If for their own political reasons the Government are not going to include those powers in the Bill before us, that means that they could not be activated quickly when needed, since if Parliament was in recess at the time it would require the recall of Parliament and thus a period of some days at least before the Bill could be debated and passed and receive Royal Assent. Neither is it clear, as has been said, exactly how meaningful any parliamentary debate could be. Presumably, the Government would not be disclosing the intelligence information that had led to the Bill being brought forward.
The Government now recognise that the powers provided for in the draft Bill are needed, but because they will not include them in this Bill they are going to create a situation, particularly when Parliament is in recess, where the powers may be needed urgently in the interests of national security but cannot be exercised immediately when the need for them has become pressing. Quite a thought with the Olympic and Paralympic Games just around the corner. That would also mean that if the draft Bill were passed it would run alongside the current Bill, creating two separate control order regimes, expiring at different times, with different levels of power and possible court challenges.
There is a further concern. When Parliament is dissolved, or in the period between the appointment of a new Parliament and the first Queens's Speech, the Secretary of State would be able to apply the provisions of the draft Bill effectively by decree, if Parliament had not debated and passed the legislation and the legislation were still effective. Is that the way we want to go on this issue, either now or in the future? All because the Government will not put the provisions of the draft Bill into this Bill. There is certainly a real price to pay for the coalition Government’s political fudge.
We then come to the issue of resources. Perhaps the Minister will tell us what the additional cost of the extra surveillance for the TPIMs will be, and from where the additional funding will be met. As has been mentioned in this debate, Deputy Assistant Commissioner Stuart Osborne gave evidence to the Bill Committee in June on the readiness of those involved to implement the new system and said:
“To get the resources that we anticipate we need will take more than a year, in terms of being able to get people trained and to get the right equipment. Until we have got that, we will not be able to start to bed things in and see how it works and how it transpires”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 9.]
So we have a situation where to date there appears to be silence on what the additional costs of the extra surveillance will be and where the money will come from, and a statement from a knowledgeable source that it will take more than a year to get the resources required in terms of people trained and the appropriate equipment. Where is the additional appropriately trained manpower going to come from at a time when numbers of police officers are being significantly reduced and police forces severely stretched?
Control orders are not ideal nor indeed desirable, but they are needed to deal with the situation that has arisen where a small number of people seek to pursue their own aims and objectives through acts of terrorism, and it is imperative that, when needed, we have the powers to stop them after the time their suspected intentions begin to emerge but before they can carry out their ghastly actions. Control orders have the support of the police, including the power to relocate; they have had the support of the courts, including the power to relocate; and they have been used by the current Home Secretary, including the power to relocate. I understand that some three-quarters of current controlees have relocation as part of their control order.
One of the prime responsibilities of a Government is the security of the nation and of our people. The Bill weakens counterterrorism protection by removing the power to relocate dangerous terror suspects, if needed, to prevent terrorist activity, and puts that provision in a draft Bill that it might not be possible to activate in time to deal with a security situation requiring the immediate use of the powers in the draft Bill. This Bill also weakens accountability since, unlike control orders, TPIMs will not require annual parliamentary votes to continue, and I am by no means the first to have drawn attention to this point. The Bill also fails to address the issue of the additional resources that the police and security services will need for the increased surveillance needed as a result of the changes that it introduces.
This Bill has nothing to do with improving national security; indeed it weakens it. It has nothing to do with human rights, since it is simply a classic example of a piece of legislation that has everything to do with internal coalition politics in which the protection of the people of this country from further acts of terrorism comes second behind the need to produce a political fudge on the question of control orders, which this Bill and the draft Bill retain, albeit under another name. This is not a change to “control order light”; it is a change to “control order risky”—and highly risky, at that. The Government should think again about some of the provisions of this Bill.
Lord Reid of Cardowan
Before my noble friend sits down, will he allow me to declare my interests as registered? I meant to do this during my contribution but did not because of the brief time allotment.
Lord Henley
My Lords, I offer my thanks to all noble Lords who have welcomed me to this post and, more importantly, for the tributes that they have paid to my predecessor, my noble friend Lady Browning, who served in the Home Office, albeit briefly, and in other departments in a previous Government with great distinction. We all wish her well.
After the particularly thoughtful earlier intervention by the noble Lord, Lord Reid, I intended to keep party politics out of this debate. However, after the savaging to which I have just been subjected by the noble Lord, Lord Rosser—accusations of political fudge by the coalition Government and so on—I ought to remind him that there are considerable divisions in all parts of the House, possibly nowhere more so than on his own Benches. Not all his party agrees with the line that he, the shadow Home Secretary and others are taking. Certainly, that is true of possibly four Members on his Benches today and I am sure there are many others. The noble Lord had one or two supporters from his Benches but not many more than that.
Within the coalition there are always differences. As my noble friend Lord Howard made clear, without a single party in government, these matters have to be debated within the Cabinet and within the Government, and one has to come to a proper conclusion. The important thing, as he made clear, was getting the balance right. I was grateful that my noble friend felt, with one or two doubts, that we had got it broadly right. My noble friend Lord Phillips also said that we had got it broadly right. That is what we will debate in due course as we cover these matters.
We have had a very good, full and constructive debate today. I am grateful to all those who have contributed. We have heard a wide range of different views and it is important that we continue to discuss these issues and the different views that we take. One of the points on which I agree with the noble Lord, Lord Hunt of Kings Heath, is the importance of scrutiny of the Bill in this House. I positively look forward to the Committee stage, and Report after that, when we shall get down to that in detail. The Bill needs careful consideration by this House. It is something that this House is particularly good at. The debate has also confirmed yet again the importance that this House places on our liberties—not just the civil liberties of individuals but the right of all members of society to enjoy those liberties free from the fear of terrorism. Civil liberties are at the core of our society, the rule of law and respect for individual liberties being the very things that those terrorists wish to destroy.
A great number of very detailed points have been put to me in the course of the debate. I do not intend to answer all of them at this stage; we would be here for a very long time. However, I shall go through some of the broader themes that have come up to give some indication of where we are and what we are thinking. We will no doubt debate those in much greater detail in Committee, as is right and proper. I also want to deal with some of the worries that have been put forward. In particular, the noble Lord, Lord Dubs, talked about the enhanced TPIM Bill and seemed to think that it was lacking in scrutiny. The important point to remember about the enhanced TPIM Bill—although, as I stressed in my opening remarks, we do not want to have to make use of it—is that it will be debated in due course. That is the point of giving it pre-legislative scrutiny. It will mean that it can be debated in a measured manner at an appropriate time, and not just in moments of crisis. That will be a matter for the usual channels to arrange in due course.
The first and most important point that I shall deal with, which was raised by my noble friend Lord Goodhart, the noble Lords, Lord Pannick and Lord Morgan, and others, is the idea that the TPIM system—with which we propose to replace control orders—will operate outside the rule of law. It will not operate outside the rule of law. We are here today in Parliament, in the Lords, debating this Bill. If enacted, it will have been passed by Parliament, just as the previous Bill was—many of us remember those long hours in 2005. The regime that follows that will be fully overseen by the courts. The Secretary of State’s decisions will be constrained by legislation and the Human Rights Act and, again, be fully overseen by the courts. I forget who it was who said earlier of a particular issue—I think it was the noble Lord, Lord Desai—that, either way, it would be tested in a court of law. We can be pretty sure that everything will be tested in a court of law in due course. Seeing two former Home Secretaries in the House, I imagine that Home Secretaries get rather used to that. It happens to other Secretaries of State, and I think that all Ministers are aware of the problems it can lead to.
As I said, I want to deal with some of the points that have been made and some of the difficulties that many noble Lords see in the Bill. I want to address the whole question of the removal of relocation powers. Many from the Official Opposition, my noble friend Lord Howard and others feel that we have gone too far in removing those powers, which they believe are essential for national security. We have been clear that we will do nothing that risks our national security or the safety of citizens. Schedule 1 to the Bill contains all the powers that we need for all but the most exceptional circumstances. The exclusion regime that we propose is not the same as relocation but it will allow a certain degree of exclusion from particular places, such as named buildings, streets or towns. Exclusion from airports, ports and international railway stations will also be possible. Other restrictions include the requirement for an individual to stay overnight at a designated address, preventing him contacting certain individuals and preventing him travelling overseas. Together with the additional resources that we will provide for the police—this is the important point—those powers are sufficient to manage the risks that we face.
I think it was the noble Lord, Lord Harris of Haringey, who asked why we had still been using relocation powers over the past year if that was the case—he rightly said that there had been some use of them. I make it clear that it is our view that the public can be protected by a less intrusive and more targeted regime, which is what we are replacing the current regime with and what the Bill will bring about. However, we want to make it absolutely clear that the new regime will be complemented by those additional resources for the police and the security services allowing more surveillance and so on. Those additional resources will inevitably take some time to put in place. The noble Lord, Lord Rosser, got it absolutely right when he implied that it takes time to train people in the art of surveillance. Therefore, it takes time to put them in place. That is why the full range of control orders, including relocation powers, are still being used at this time. However, we do not believe that they will be necessary in the future, when we have moved on and the rest of the provisions are in place.
Lord Hunt of Kings Heath
That is extremely helpful but, on that basis, does the Minister agree that it would be sensible for the commencement order to start on, let us say, 1 January 2013, so that we can get through the Olympic year using the present provisions? Would that not be a more sensible approach?
Lord Henley
I will make no guarantee at this stage. I noted that my noble friend Lord Carlile suggested a delay for the Olympics. We will certainly look at that. It is something that I am sure will be argued in Committee. I give no guarantees but it is something that can be looked at. Obviously, it is important to get these things right.
Lord Desai
I was in India when the London riots took place. The one fear that everybody expressed was, “What will happen at the Olympics?”. It is very important that, whatever the Government do, they take care over the global anxiety about security in London during the Olympics, and do nothing to give the impression that we are lowering our guard.
Lord Henley
My Lords, I can give an assurance to the House, to the noble Lord and to anyone else who reads our debates that the Government take security for the Olympics very seriously indeed. Again, this is a point that we will have to consider further when we get to Committee stage but I note what the noble Lord had to say.
The noble Lords, Lord Goodhart and Lord Pannick, asked whether the TPIMs system should not be made by a judge rather than just judge reviewed. The noble Lord recalled the passage of the 2005 Act, which we all remember. He recalled my late noble friend Lord Kingsland, who at that stage wanted control orders to be made by the judge. I think that I was probably sitting next to him as he made those arguments but I cannot remember the exact outcome other than the fact that the Government got their way in the end and we have all moved on and changed our views on these things. However, we believe that this is a matter of national security and is properly a matter for the Secretary of State. While there obviously should be the appropriate extensive judicial oversight of the Secretary of State’s decision, it should none the less be the responsibility of the Home Secretary and not the High Court to impose these notices. We believe this is consistent with the approach that we have taken in other areas such as in decisions to exclude, deport or deprive citizenship on the basis of national security considerations. However, the TPIMs regime must certainly be subject to very thorough oversight arrangements by the courts. I hope that we have set out just how thorough those will be. As I said, we will continue to argue that case during the passage of the Bill.
As regards the renewal and the review by Parliament, as all noble Lords have reminded us, control orders have been subject to review every year. It was proposed that they should be reviewed every five years. That concession was brought in in another place. We believe that five years strikes the right balance. It will recognise the competence of Parliament—each Parliament will be five years from now on—to scrutinise the Bill and to arrive at a settled position on proportionate and effective powers that are needed to protect the public. It will also allow each new Parliament to review the situation and to consider whether the powers are still needed, and will mirror the length of Parliaments that we now have provided for in the Fixed-term Parliaments Bill. Ending annual renewal will allow the system to operate in a stable and considered way, focusing on protecting the public and striking the right balance with liberty rather than on merely political bickering. If we have the annual debate, I wonder whether, as with some other annual debates that we have, there will be a gradual diminishing in the interest taken in that and whether this is not something that should be left for each new Parliament to decide in due course. As I said, this matter has been raised by a large number of noble Lords on all sides of the House and I am more than happy to consider it again when we get to Committee stage.
My noble friend Lord Howard talked about being a member of the committee of privy counsellors looking at intercept and how he would have liked to use intercept if it were possible but that he was beginning to see the difficulties in so doing. I looked back to the debates in 2005 that the noble and learned Lord, Lord Lloyd, will remember. In those debates it was not Lord Kingsland arguing the point from the opposition Benches but myself. The noble and learned Lord will remember that we had considerable discussions on this matter. I think we all accept that views can change. We are committed to seeking a practical way that will allow the use of intercept evidence in court. That work is under way. My noble friend Lord Howard and others are involved in that. We will report to Parliament in due course. However, as my noble friend made perfectly clear, the issues are difficult and complex. None the less, we believe that a workable scheme could offer clear benefits in terms of enhanced scope to bring the guilty to justice and increased confidence in the justice system.
I wanted to cover those brief points at this stage. I appreciate that noble Lords have raised a large number of other points. I repeat that this has been a very good and useful debate in first airing our views on the Bill. That is exactly what a Second Reading should be. I look forward very much to Committee stage. I hope that we can continue to argue the case in a civilised manner and send the Bill back to another place in as good a state as we can get it. I commend the Bill to the House. I beg to move.