House of Lords

Wednesday 19th October 2011 Lords Chamber

Wednesday, 19 October 2011.

15:00

Prayers—read by the Lord Bishop of Leicester.

Health: Obesity

Wednesday 19th October 2011 Lords Chamber

Question

15:07

Asked By

[Lord McColl of Dulwich]

To ask Her Majesty’s Government what action they are taking to address rising levels of obesity.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, the Government are committed to tackling obesity, which has serious consequences for individuals, the NHS and the wider economy. The Government recently published A call to action on obesity in England, which sets out how obesity will be tackled in the new public health and NHS systems and the role of key partners.

[Lord McColl of Dulwich]

I thank my noble friend for that reply. Would he kindly consider launching a campaign comparable to that launched by my noble friend Lord Fowler in the 1980s, which was so striking and so very effective?

[Earl Howe]

I agree with my noble friend about the campaign launched by our noble friend Lord Fowler, which was extremely effective. We recognise that excess weight is a really serious problem. That is why we have set out what we believe is an ambitious approach to dealing with it. We are radically overhauling the public health system. We are working with business to go further and faster on making it easier for people to make healthy choices for themselves and their families. We are also continuing to invest in programmes such as Change4Life. The Government cannot solve the problem on their own but we can encourage and support a wide range of partners to play their part. The call to action sets out how we are going to do that.

[Lord Brooke of Alverthorpe]

My Lords, will the noble Earl please explain how people can be expected to take personal responsibility for sorting out their health problems when so much information about the food and drink they consume is kept from them? Can he please also explain why the Government are failing to press the drinks industry to show the number of calories in alcoholic drinks on the labels, and declining to meet the industry and press it accordingly?

[Earl Howe]

I am not aware that we have declined to meet the drinks industry; the noble Lord may know something that I do not. We talk regularly to the drinks industry. As he will be aware from a Question tabled in this House the other day, the result of the European nutrition labelling regulation is that we now have the flexibility in this country to construct rules that suit us. That includes encouraging the drinks industry—and I believe that it is willing to do it—to place energy information on its labels.

[Baroness Trumpington]

My Lords, does the Minister realise that some of us eat like sparrows but end up like turkeys? Does the publication which he spoke of cover the situation of those of us whom I have just spoken of?

[Earl Howe]

My Lords, my noble friend makes what is in fact a very complex point. Many of us believe that there is a genetic element to this, and indeed the 2007 Foresight report underlined the complexity around the causes of obesity. Genetic, psychological, cultural and behavioural factors all have a part to play in it. I do not have specific advice to give my noble friend—far be it from me to do so—but there is obviously a balance to be struck between calories in and calories out.

[Baroness Thornton]

My Lords, if the Royal Society of Paediatricians, other medical organisations, Which? magazine, Jamie Oliver and many others regard the Secretary of State’s most recent obesity announcement, which presumably is based on corporate relations and the nudge theory, as, variously, “worthless”, “patronising” and “inadequate”, does the noble Earl regard this as people not understanding Mr Lansley—again—or could it be that the obesity strategy is actually not adequate and the Government need to go back to the drawing board?

[Earl Howe]

It is only inadequate if we as Government fail to work with partners as we have the ambition to do. We do have that ambition, and obviously we are disappointed by some of the reactions that have been published. However, we share the concerns expressed by Jamie Oliver and the bodies mentioned by the noble Baroness that urgent action is required to tackle obesity, and we all have a role to play in that.

[Lord Lawson of Blaby]

My Lords, as someone who has been there and done that, and indeed written a book about it, may I say to the noble Earl that he is absolutely right that this is not something that the Government can do on their own—indeed, may I suggest that it is not something that the Government can do at all? There is a genetic element, which the Government cannot do anything about, and the rest is about eating less and drinking less. If the Government were more concerned about doing something about the economy, where they do have a responsibility, and less about obesity, that might be sensible.

[Earl Howe]

My Lords, the fact is, as was recognised in our report, that most of us are eating and drinking more than we need to and we are not active enough. Being overweight or obese is a direct consequence of eating more calories than we need. Increasing physical activity is important but reducing the calories we consume is clearly key to weight loss.

[Lord Maxton]

My Lords, does the Minister agree that exercise is a vital part of tackling the problem of obesity? If the Government insist on local authorities cutting back on their expenditure, will not those same local authorities close gymnasiums, leisure centres and swimming pools, and sell off their playing fields? How does that help us to tackle obesity?

[Earl Howe]

The short answer is the ring-fenced public health budget, which will encourage local authorities to look across the piece at their public health responsibilities.

[Baroness Hussein-Ece]

My Lords—

[Baroness Howarth of Breckland]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, if both noble Baronesses are quick, we can get both in. Can my noble friend speak first, and then the noble Baroness?

[Baroness Hussein-Ece]

My Lords, unlike the noble Lord, Lord Lawson, I have not really been there and done it, but I am full of admiration for him that he has. However, is it not shocking that 25 per cent of children aged between two and 15 are now classified as obese? Does the Minister share my concern that this serious public health problem is not simply a question of celebrity chefs or of parents being lectured about lunch boxes, it is about educating children and families on how to prepare fresh, healthy food? Is there any evidence that this is being done consistently?

[Earl Howe]

I agree with my noble friend that it is about educating both children and parents about healthy diets and healthy eating, and encouraging children at school to take up healthy diets.

[Baroness Howarth of Breckland]

My Lords, I know that the Ministry is very keen on co-ordination, and I am sure that one of the reasons why the team from the Food Standards Agency was moved into the Department of Health was to ensure that it could work on these issues. The Minister will remember that this team was outstandingly successful in its work on the salt campaign and was moving on to work on fat and sugar, which would have helped with the obesity problem. I understand that the team is now being disbanded. Is that sensible in the light of the Question of the noble Lord, Lord McColl?

[Earl Howe]

I am not aware that the team is about to be disbanded but I will take that concern away and write to the noble Baroness about it.

Public Services: Security of Provision

Wednesday 19th October 2011 Lords Chamber

Question

15:15

Asked By

[Lord Haskel]

To ask Her Majesty’s Government what steps they are taking to ensure that companies providing public services are financially secure.

[Lord Wallace of Saltaire]

My Lords, it is the responsibility of the relevant contracting authority to take appropriate steps to ensure that companies providing public services are financially secure, initially when selecting suppliers and then on an ongoing basis through contract management and supplier relationship management. For each of the major suppliers to government, we have appointed a Crown representative responsible for managing the relationship with that supplier.

[Lord Haskel]

My Lords, I find that response a little worrying, because we all depend on public services. Does the Minister agree that, at this time of volatile markets and financial difficulties, the services that we get from these companies are at risk from too much debt, from hidden debt and from hit-and-run investors who try to take over these companies? Are the Government taking any extra precautions in these circumstances, because, at the end of the day, it is we the taxpayers who have to clear up the mess?

[Lord Wallace of Saltaire]

My Lords, one cannot entirely eliminate financial risk either from private or public sector providers so long as public sector providers have a degree of financial and accounting autonomy. We have seen that in a number of public sector cases as well as in private sector cases. The Government are taking considerable care in contracting to ensure that we look at the financial viability of all suppliers and, in particular, do our best to encourage small and medium enterprises and social enterprises to be able to bid for public service contracts. That takes rather more sophistication than dealing simply with major suppliers.

[Lord Brookman]

My Lords—

[Baroness Eaton]

My Lords, does my noble friend agree that one of the best ways of helping businesses, particularly small and medium enterprises, is to scrap complex and unnecessary central prescription around the commissioning process? Will he detail what the Government are doing to simplify the systems that businesses have struggled with for so many years?

[Lord Wallace of Saltaire]

My Lords, I understand that one of the problems particularly for smaller companies and social enterprises bidding for public sector contracts was the prequalification questionnaire, a document which might have been somewhere between 50 and 300 pages long and led to some smaller enterprises simply deciding not to bid. We have now scrapped that and made a much simpler and shorter alternative. We are adjusting the way in which the many hundreds of contracting authorities within the public sector deal with those with whom they operate, but I underline that we are concerned as far as possible to assist mutuals, social enterprises and small companies in playing their role in providing public services wherever possible.

[Lord Brookman]

My Lords—

[Baroness Royall of Blaisdon]

My Lords, there are all sorts of pressures on Ministers’ diaries, especially at the moment, but does the Minister agree that it was not acceptable for his honourable friend Mr Burstow to cite diary pressures as a reason for not meeting the financially insecure Southern Cross for discussions, when these were repeatedly asked for by the company and when it was providing a public service by providing homes for 31,000 vulnerable people?

[Lord Wallace of Saltaire]

My Lords, I am not fully briefed on the exact details of my honourable friend Paul Burstow’s diary. We have of course been concerned with ensuring that the services provided by Southern Cross should be maintained. There have been various negotiations. Southern Cross confirmed in an announcement to the Stock Exchange on 27 September that it had reached agreement with its principal landlords and that it would transfer the group’s care home leases to its landlords and the related business and assets for the operations of those homes to its landlords or alternative care providers.

[Lord Maclennan of Rogart]

My Lords, does not Southern Cross illustrate that it is not only small and medium sized companies that need to be watched? Is there a continuing process in respect of the larger companies that are providing comparable public services?

[Lord Wallace of Saltaire]

My Lords, one or two of the providers of public services in the private sector are now among the largest companies in Britain and the world. Noble Lords who read the financial pages may know that G4S has just taken over another major multinational company. Liberata, a back-office outsourcing firm, nearly went bankrupt in 2008, partly because of its pensions liability, and had to be restructured. It is now partly owned by its employees and partly owned by the Pension Protection Fund. The Government, as with all others in such circumstances, do get engaged in trying to re-establish companies in difficulty that are playing a valuable role.

[Lord McFall of Alcluith]

My Lords, given the sorry example of Southern Cross and the burgeoning outsourcing of public services, which is estimated to go from £80 billion to £140 billion by 2014, is there not a case for the utmost transparency on the part of the Government through extending freedom of information to private companies undertaking public services so that they can catch the failed business model, which they did not do in the case of Southern Cross?

[Lord Wallace of Saltaire]

My Lords, I have to repeat: one cannot entirely eliminate financial risk from activities which take place either in the private or the financial sector. We all know that cases of mismanagement have taken place in schools, hospitals and other areas in the public and private sector. The Government have established a new major projects authority within the Cabinet Office and a group of strategic suppliers. They are working extremely hard to ensure that as much transparency as possible can be provided. However, if the noble Lord thinks that there is insufficient transparency, I encourage him to return to this issue on future occasions.

Industrial Tribunals: Fees

Wednesday 19th October 2011 Lords Chamber

Question

15:22

Asked By

[Lord Lea of Crondall]

To ask Her Majesty’s Government what evidence they used in deciding to introduce fees of up to £1,000 for access by workers to industrial tribunals.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the Government will launch a consultation on the introduction of fees in employment tribunals and the employment appeal tribunals later in the year. That consultation document will set out options for proposed fee structures and the indicative levels that might be applied. No decision will be made on the level of fees to be paid until that consultation has been completed.

[Lord Lea of Crondall]

My Lords, I thank the Minister for that reply. Is he aware that the most recent consultation he has announced is only about the amount of fees and not about the principle, at a time when the BIS consultation has not yet been completed? Would he care to enlarge on the evidence to justify Mr George Osborne’s pre-emptive statement to the Conservative Party conference on 3 October, when he cited as evidence simply “perceptions” of “weak or vexatious claims”, when these are in fact being weeded out? Secondly, is the Minister aware of the recent statement by the chairman of the Administrative Justice and Tribunals Council that the Government’s policy is based on limited evidence, which would have,

“a disproportionate and chilling effect on employees”,

and, moreover, that he has expressed great concern about tearing up the BIS consultation process, which has not yet been completed?

[Lord McNally]

My Lords, the Government announced the introduction of fees into the employment tribunals and the employment appeal tribunals in the Resolving Workplace Disputes consultation published in January 2011. The consultation I have mentioned today will seek views on the fee levels, charging points and so on.

On the points that the noble Lord made, this is the whole reason for this second stage of consultation. Small businesses gave evidence about the burdens of what they describe as vexatious claims brought to them. I am sure that others will give evidence to the contrary. That is the point of consultation.

[Lord Martin of Springburn]

My Lords, I can recall the days when there were no industrial tribunals. Decent men and women were sacked and could not take any legal action. Are we now introducing a blocking mechanism—that is, fees—for industrial tribunals when the industrial tribunal system has been excellent in resolving disputes?

[Lord McNally]

My Lords, there is no aim to go back to what the noble Lord, Lord Martin, could rightly describe as the “bad old days”. The industrial tribunals system will remain and people will still have access to it. We expect that the tribunals will have the power to order that unsuccessful parties reimburse the fee paid by the successful party so that costs are ultimately borne by the party which causes the system to be used. There is nothing in the system that does not say that a small proportion of the costs cannot be charged. We do not believe that that would fundamentally undermine the very good work that the tribunal system does.

[Lord Thomas of Gresford]

My Lords, does my noble friend accept that meritorious claims will be as much discouraged by the imposition of fees as vexatious ones? The Government should not base their policy of charging fees on trying to limit the number of cases that come to the tribunals. My noble friend will recall the discussion that we had about this in the immigration appeals tribunal last week.

[Lord McNally]

My Lords, I suspect that we will have discussions along these lines over a range of issues. I suspect that small charges for access to courts such as the tribunal service will not have a deterrent effect on meritorious cases. One small range of consultations suggested that there might be a small fall-off in applications with the introduction of fees. As part of the consultation that will take place in December, we hope to widen that impact assessment to make sure that we are going down the right road. Between 2001 and 2010, there was an 81 per cent increase in cases going to employment tribunals. There is a limit to what a free service at the taxpayers’ expense can bear.

[Lord Borrie]

My Lords, instead of charging workers for exercising their statutory rights to claim whatever it is that they want to claim for unfair dismissal, discrimination, et cetera, we should try to return to the position when employment and industrial tribunals started, replacing the courts to provide a more informal, less costly and simpler system to operate so that people would have the opportunity to put their case to a body that could deal with matters free of charge without incurring the sort of expense now being suggested.

[Lord McNally]

My Lords, I fully endorse the growl of approval from the Benches opposite but this is precisely the argument that we will have again and again in the weeks and months to come. The problem is that a system that started off as a non-confrontational, non-legal settlement of disputes has become peopled by m’learned friends at great expense. We are trying to move away from a legalistic approach to settling disputes to one that will settle more by arbitration, conciliation and mediation.

[Lord Scott of Foscote]

My Lords, the accessibility of a civil justice system is one of the features of the structure of the administration of justice that every civilised country ought to provide for its citizens. Is not the danger of a fee structure system that the fees might be set at too high a level, thereby denying access to justice to those unfortunates who could not afford such a fee?

[Lord McNally]

My Lords, that is precisely why we are consulting and taking a further impact assessment—so that we will have a fee structure that will not have the detrimental effects the noble and learned Lord is suggesting.

Nursing: Elderly and Vulnerable Patients

Wednesday 19th October 2011 Lords Chamber

Question

15:30

Asked By

[Baroness Gardner of Parkes]

To ask Her Majesty’s Government whether they will work with the Royal College of Nursing to review and adapt the training of nurses to resolve the present problems of care and nursing for elderly and vulnerable patients.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, it is the responsibility of the Nursing and Midwifery Council, the NMC, to set educational standards that higher education institutes’ educational programmes must abide by. The Nursing and Midwifery Professional Advisory Board, the PAB, brings together all relevant stakeholders, including representatives from the service, professions, NMC, Royal College of Nursing, Unison and the higher education institutes, and is well placed to advise the department on workforce education and training matters.

[Baroness Gardner of Parkes]

I thank the noble Earl for that reply. Does he agree that while we are all pleased to see graduate nurses achieving new heights, there is considerable concern, following the abolition of SENs, about the loss of those caring, practical nurses who did not require university entrance levels? Has he seen Sheila Try’s report, Why is Nursing Failing? A Student Centred Action Plan, and, if not, will he ask his department to look at that?

[Earl Howe]

My Lords, we do value the contributions that SENs provide, those who are still in practice. It is certainly the case that the NMC no longer approves programmes for nurses on part 2 of the register and there are no plans to reintroduce educational programmes to part 2 of the register. What we have done is to develop guidance on widening the entry gate to preregistration programmes for those individuals who show the necessary values and behaviours but who otherwise do not possess the traditional academic qualifications. I am aware of the report that my noble friend mentioned. Sheila Try has written to me and I have asked the department to consider the recommendations that she has made.

[Lord Rooker]

Does the Minister agree that it is a very valuable report? If I may remind him, on 31 March in this House when we had a debate on nursing care I asked him if he would meet Sheila Try. Following the question asked by the noble Baroness, I respectfully ask him to study the latest report by this trained nurse, who makes very valid points about what has gone wrong with the training of nurses in the last 25 years.

[Earl Howe]

My Lords, from my reading of the report —and I have looked through it—I think there is much there that we can pick up very usefully, so I agree.

[Baroness Masham of Ilton]

My Lords, does the noble Earl agree that district nurses do a very important job in keeping vulnerable, elderly and disabled people in the community? Is he aware that there is a shortage and that their training needs to be different because they go into other people’s homes?

[Earl Howe]

The noble Baroness, as ever, makes a very important point. It is one of the reasons we have a very ambitious programme of expanding the number of health visitors. She is right about tailoring the training to suit the environment. That is why there are local curricula as well as the core nursing curriculum that have approved standards from the NMC but are sensitive to local needs in individual areas.

[Lord Elton]

My Lords, when Florence Nightingale initiated the growth of modern hospitals, the most important thing she did was to insist that nurses should deliver what she called “tender, loving care”, which later became known as TLC, and remained so when I was in hospital in my middle age. Is it not time that the National Health Service assessed the personality of people seeking to embark on nursing careers to see whether it contained enough compassion?

[Earl Howe]

My noble friend is quite right and there is now a renewed emphasis on that very point, with initiatives to help the nursing workforce practise to the highest clinical standards. These include Essence of Care, which outlines quality provision of the fundamentals of care, and Confidence in Caring, which improves nurse interaction with patients. While national initiatives such as those can stimulate thinking and offer guidance on best practice, it is really the local nurse leaders, team leaders, ward sisters and matrons who are key to setting and maintaining standards for quality and safety in their own clinical areas.

[Baroness Emerton]

My Lords, state enrolled nurses’ training was discontinued on the mere fact that those nurses were being abused and misused, because they were being asked to do tasks that were above the level of their competence. We are in the same situation now with these healthcare support workers, who are not trained to a level where they can accept the tasks being delegated to them. I ask the Government to look at this, because we cannot continue to misuse those support workers in the way in which we are—by their being given tasks which they are not suited to.

[Earl Howe]

The noble Baroness, with her expertise, makes a powerful point. We fully agree that there is an issue over unregistered healthcare assistants; I think the debate is around what we should do about it. We believe that the case for statutory regulation has not been made, although we would not close our minds to it. The point that the noble Baroness makes relates much more to nursing supervision, appropriate levels of delegation on a ward or in a care home, and appropriate supervision and training. That is a matter not for regulation but for nurse leaders in hospitals and care homes.

[Baroness Thornton]

My Lords, this is yet another report to add to others highlighting these issues. I think that the Minister has gone some way to explaining what change is needed, so that elderly people get treated in hospitals with the respect and dignity they deserve. However, how does he suggest that the nursing community should resist dangerous cost-cutting exercises by trusts, which are placing patient safety at risk by replacing experienced clinical staff with more junior nurses and healthcare assistants?

[Earl Howe]

We believe that patient safety is paramount and that it is a matter not just for staff on a ward but for the board of an organisation as well, to assure itself that the highest standards are being maintained. That means having proper staff ratios—ratios of staff to patients, that is—and ratios of trained and untrained staff within a ward. These are messages that we are consistently putting out.

Scrap Metal Dealers (Amendment) Bill [HL]

Wednesday 19th October 2011 Lords Chamber

First Reading

15:38

A Bill to make provision about the registration and licensing of scrap metal dealers and to amend the Scrap Metal Dealers Act 1964.

The Bill was introduced by Lord Faulkner of Worcester, read a first time and ordered to be printed.

Medicines Act 1968 (Pharmacy) Order 2011

Wednesday 19th October 2011 Lords Chamber

Motion to Approve

15:38

Moved By

[Earl Howe]

That the draft order laid before the House on 14 July be approved.

Relevant document: 28th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 17 October.

Motion agreed.

Electricity and Gas (Internal Markets) Regulations 2011

Wednesday 19th October 2011 Lords Chamber

Motion to Approve

15:38

Moved By

[Lord Marland]

That the draft regulations laid before the House on 18 July be approved.

Relevant document: 28th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 17 October.

Motion agreed.

Terrorism Prevention and Investigation Measures Bill

Wednesday 19th October 2011 Lords Chamber

Committee (1st Day)

15:39

Relevant document: 16th Report from the Joint Committee on Human Rights.

Clause 1 agreed.

Clause 2 : Imposition of terrorism prevention and investigation measures

Amendment 1

Moved by

[Lord Lloyd of Berwick]

1: Clause 2, page 1, line 6, at beginning insert “The court may on the application of”

[Lord Lloyd of Berwick]

My Lords, these amendments fall into two main groups. The first includes Amendments 1 to 3, 7, 8, 25, 27, 29, 36, 37, 40 and 41. I start by referring to the restrictions set out in Schedule 1 to the Bill, which were so well described by the noble Baroness, Lady Stern, at Second Reading. It is wrong in principle for punitive restrictions of the kind set out there to be imposed on a British subject by a member of the Executive in time of peace. It is as simple as that. The Minister’s predecessors on both sides of the House have previously argued that such restrictions are not punitive—they are preventive. I suggest that that is playing with words. Looking at Schedule 1, any ordinary reader would say that these restrictions, whatever their purpose, are punitive in effect.

In her response to the excellent report of the Joint Committee on Human Rights, the Home Secretary argued that prevention orders are now a common feature of our legal system. She cited anti-social behaviour orders, football banning orders, serious crime prevention orders, violent offender orders and so on. However, in all these cases the order is made by the court—either the High Court or the magistrates’ court—as it should be. Therefore, the purpose of the first group of amendments is simply to bring the Bill into line with the precedents on which the Home Secretary herself relies. In other words, it is for the Home Secretary to make the application for an order, but for the order to be made by the High Court.

It may be said that we are dealing here not with ordinary crime but with terrorism, and, where the safety of the public is at issue, it is the Home Secretary who should make the order because it is the Home Secretary who is answerable to Parliament. There are two answers to that argument. One need look no further than Section 4 of the Prevention of Terrorism Act 2005—the very that Act that we are repealing. It provides that, in the case of derogating control orders, it is the High Court that makes the order, not the Home Secretary. That surely puts paid to the argument that in terrorist cases it is for the Home Secretary to make the order because it is she who is answerable to Parliament.

There is a second answer. Clause 9 provides that the court must review the case as soon as practicable after notice has been served. The crucial question of fact on that review will be whether the individual is or has been involved in terrorist activity. In the leading case of the Secretary of State for the Home Department v MB—2007, Queen’s Bench, at page 415—the Court of Appeal held that, in considering that crucial question, the court must reach its own conclusion on the facts. If it disagrees with the Home Secretary, it must say so and quash the notice. It is the court’s decision on the facts which will prevail, not that of the Home Secretary. The Government have accepted that that should be so. However, if that is to be so, it is difficult to see what, if anything, is left of the argument that it is the Home Secretary who should make the order because the Home Secretary is answerable to Parliament.

15:45

Later in this debate the noble Lord, Lord Goodhart, will argue that for the Home Secretary to make the order is contrary to the rule of law. I agree with that argument and will not anticipate it. My own contribution is on a lowlier level than that; it is based simply on common sense. It simply does not make sense for the Home Secretary to apply to the court for permission to impose restrictions under Clause 6 and then come back to the same court a week or so later in order to justify those restrictions. It is much too cumbersome a procedure, as one can see from the complexity of the drafting which it entailed. It is much better and simpler for the Home Secretary to apply for an interim order under Clause 6 and for the court to confirm or quash the order on the substantive hearing under Clause 9, after hearing representations by or on behalf of the individual. That is the usual procedure in our courts. It will be for the noble Lord to explain why it should not apply here.

Before leaving that group of amendments I should like to add two short footnotes. First, the amendments, if accepted, will not affect in any way the underlying purpose of the Bill, which is to protect the public. Since the courts will have the last word anyway in the way that I have described, the risk to the public will remain exactly the same. Secondly, the noble Lord may refer to the undoubted power of the Home Secretary to make deportation orders under Section 3(5) of the Immigration Act 1971. But this power affects only those who are not British citizens. It is part of the ordinary law on immigration and has nothing whatever to do with this Bill.

On the standard of proof, the relevant amendments are Amendments 16, 17, 19, 20, 27 and 41. That includes the amendment to be moved later by the noble Lord, Lord Pannick, and the noble Baroness, Lady Hamwee. As I have said, the crucial question to be decided under Clause 9 is whether the individual has been engaged in terrorist activity. That is an extremely serious finding to make about anyone—so serious, indeed, that it could well be argued that the standard of proof should be the criminal standard. However, these are civil proceedings and I accept that the civil standard should apply. But I do not accept that any lower standard should apply. I can see no justification whatever for rejecting the balance of probabilities in these civil proceedings and substituting reasonable belief, especially in a case involving the liberty of the subject. The balance of probabilities is the standard adopted in serious crime prevention orders, Section 4 of the Prevention of Terrorism Act 2005, Clause 2 of the Draft Enhanced Terrorism Prevention and Investigation Measures Bill, which will come before us in due course, and Clause 26 of this Bill. Why has it not been adopted in Clause 3?

The whole point of having the balance of probabilities as the standard is that it is a flexible standard. It is relatively easy to discharge at the lower end of the spectrum and it approaches the criminal standard at the higher end of the spectrum The balance of probabilities is therefore the ideal standard in this case for Clause 3, where the restrictions are less severe, and for Clause 26, where the restrictions are more severe. The balance of probabilities is not only a flexible standard but is also well understood; reasonable belief is neither.

I should say a word in conclusion on Amendment 44, also in this group—but no more than a word, given that it speaks for itself. There is much more that I might say but most of it is contained in the excellent report of the Joint Committee on Human Rights, published only this morning in the nick of time. No doubt, the Minister will have that report and will take it well to heart. I beg to move.

[Lord Goodhart]

My Lords, this country has for centuries—going back 800 years to Magna Carta—recognised the rule of law. Part of the rule of law is that those who are tried for crime must be convicted in court by a judge. For a criminal conviction, there must be evidence beyond reasonable doubt that a defendant who is charged with terrorist action cannot be convicted of it if there is reasonable doubt as to his involvement. Under the rule of law, those who are convicted of misconduct short of crime may be subject to civil penalties. I know that terrorism is a terrible crime. I accept that someone who is found to be guilty of terrorism on the balance of probabilities but cannot be held to be guilty beyond reasonable doubt should be subject to civil penalties such as TPIM notices, even though those penalties are very serious.

What I do not accept is that penalties as serious as those imposed under the Prevention of Terrorism Act 2005, or those that are to be imposed under the TPIM Bill, can be imposed by a Secretary of State, who is the prosecutor, without the prior approval of a judge. It is an absolute principle of British law that trials must be fair. I refer to chapter 9 of the late Tom Bingham’s classic book, The Rule of Law. A case where the prosecutor is also the judge cannot be fair, even if a court has a power subsequently to quash the measure if the court finds the application to be obviously flawed—whatever that may mean. It is very far from obvious.

This is doubly the case if, as in this Bill, the defendant does not know what the evidence is against him and cannot therefore provide any evidence to be heard in the process against him. It cannot be fair for someone who is not found by a court to be guilty on the balance of probabilities to have TPIM notices imposed on him. Before a notice can be imposed, there has to be at least a probability of terrorist action. If there is a possibility short of probability, it is surely a matter only for surveillance and not for TPIM notices.

I note with great interest the extremely powerful report of the Joint Committee on Human Rights published this morning at 11 o’clock. I refer to three extracts from that report. Paragraph 1.6 states that,

“the well-established principle is that executive restrictions on liberty are such a radical departure from our common law tradition that they always require prior judicial authorisation after proper legal process. It is for the Government to justify this Bill’s departure from that fundamental principle”.

There is a fundamental principle, and I can see no justification for the departure from it. We, as Members of the House of Lords, should recognise that. Paragraph 1.8 states:

“We also note that Lord Lloyd has tabled amendments to the Bill which have the effect that TPIMs are imposed by the court on the application of the Home Secretary. We support those amendments which in our view replace executive orders with prior judicial authorisation of the kind which both human rights law and our common law constitutional tradition require”.

Surely we all recognise that we in this country recognise as part of our common law what is spelt out in paragraph 1.8.

Finally, before I move elsewhere, paragraph 1.14 states:

“In our view, reasonable belief is too low a threshold for the imposition of such intrusive measures as are envisaged in the TPIMs Bill. The standard should be the balance of probabilities. We support the amendment to clauses 3 and 6 to be moved in Committee by Lord Lloyd, to the effect that the decision of the court as to whether the individual is, or has been involved in terrorism-related activity is to be taken on the civil standard of proof, that is, the balance of probabilities”.

Again, that is a fundamental matter. There must be a balance of probabilities. It is no good saying that this might be probable; there has to be a balance of probabilities. Those whose cases fall short of the balance of probabilities are not to be treated to orders or measures under the TPIM Bill; that is a matter only for study and surveillance.

I completely support what was said by the noble and learned Lord, Lord Lloyd of Berwick. I have known him for many years. He has been one of the outstanding judicial figures in this country in the past 20 or 30 years.

Britain has a great tradition of recognising the rule of law. We are failing that tradition if the proposals made by the Secretary of State do not have to have the full support of a court and may be imposed on people whose actions fall short of the balance of probabilities. In March 2005, during the final stages of the passing of the Prevention of Terrorism Act of that year, the greatly missed Lord Kingsland, leading for the Conservatives, and my noble friend Lord Thomas of Gresford and I, leading for the Liberal Democrats, tried to ensure that control orders could be imposed only by a court. We failed. Six and a half years later, we have a chance to achieve what we failed to achieve then. Let us, in these difficult times, not lose that.

[Lord Morgan]

My Lords, I have attached my name to the amendments and shall speak briefly about them. I am not a lawyer; there are distinguished and learned lawyers in this House. To me it is a simple matter of justice. That is why I support the amendments. That is why I am in the Labour Party. The Labour Party I thought of believes in justice. That is why I am still a member of it, and I look forward to the Labour Party reflecting that outlook in our discussions and votes on this measure. It just seems to me profoundly unjust that someone who is innocent under the law, who is shown to have committed no offence, should be treated procedurally and in his mode of life in this way. It is basically unjust.

16:00

I call in aid one of the great figures in our history, Sir Winston Churchill. He was Prime Minister in 1943 when there were a few pressures on national security. It was not a very secure time in our history; cities were being bombed and people were worried about espionage. Yet Churchill turned his attention to one unpopular individual—a man in many ways regrettable in his outlook—and suggested successfully to the Home Secretary that this man be released, because, in Churchill’s famous phrase, to keep someone under the edict of the state, charged with no offence and in confinement, not knowing the charges and not having been charged with anything, was “in the highest degree odious”. In my view the measures in this Bill, which sadly replicate so many of the measures in the previous Bill, which I voted against along with a number of other noble Lords on this side, are in the highest degree odious.

I have two points, which have been explained with legal learning that is not at my command by the noble Lord, Lord Goodhart, and the noble and learned Lord, Lord Lloyd. First, it is quite wrong that legal decisions affecting someone’s liberty should be imposed not by the judiciary but by the Executive. These are Executive-imposed restrictions on the daily lives of innocent people who have committed no offence. They are confined through the fiat of the Home Office, not through the courts. The early amendments tabled by my noble and learned friend Lord Lloyd propose that this be done by the courts. We should have a judicial view; it should be brought within the rule of law and within the criminal justice system. I am not a lawyer but I am an historian and I think that this proposal is quite contrary to the way in which our constitution works. It is unconstitutional. We have had the separation of the judiciary from the Executive since it was set down in cold print in the Act of Settlement 1701. This is quite at variance with that. It should not be done by a self-interested member of the Executive.

Secondly, this should be done according to a proper burden of proof, which the noble and learned Lord, Lord Lloyd, has wisely suggested is as recognised in our civil justice system. What we have here is a burden of proof that can be challenged only very indirectly and very marginally by the courts and the forces of law in this land. What is it based on? It is based on the Executive saying, “This is something that we reasonably believe”. It is perhaps a slight improvement on its predecessor, but as I said in my earlier speech, it is a distinction without a difference. It is not adequate. We should have precisely the same proper judicial test for innocent people of this kind, as we have for people who are shown to have committed serious offences under the criminal justice system. Many points will arise later about the defencelessness and inability of people charged under control orders to communicate with lawyers, which adds to the offence.

This is an unjust measure. It offends against the traditions of our common law; it offends against the evolutionary history of our constitution; it offends against the doctrine of human rights; it offends against the basic principles of justice in this proud country. I support the amendment.

[Lord Pannick]

My Lords, Amendments 17, 42 and 43 in this group are in my name.

First, I would like to say that I support everything that has been said about their amendments by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lords, Lord Goodhart and Lord Morgan—although I have not known the noble and learned Lord, Lord Lloyd, for quite as long as I have known the noble Lord, Lord Goodhart. I support them because their amendments are designed to ensure that the imposition of a TPIM notice is a judicial act, and not an administrative act. If a restriction on basic liberty of this sort is to be imposed on British citizens because of allegations of wrongdoing, and it is not to be a part of the criminal justice process, then surely the procedure must contain as much of the rule of law as is possible.

When opening the debate at Second Reading, the Minister said at column 1137 that the Government’s approach to balancing civil liberties and national security in this context is that the Bill should go no further in limiting people’s rights “than is absolutely necessary”. That was the test he laid down, and it seems to me that that is the right test. However, if we are going to apply that test, surely it requires that the restrictions on people’s liberties are imposed only with the prior approval of a judge. If the security services cannot persuade a judge in a closed session—because that is what is going to take place—that the restrictions are needed, then surely they should not be imposed. In an urgent case, the judge would be asked to give temporary approval until the matter can be fully considered.

There was a suggestion at Second Reading that perhaps the judiciary would not want this responsibility. There are two answers to that. First, the Bill confers on the judiciary the responsibility for deciding whether a TPIM notice is appropriate at a later stage. There seems to be no difference in principle if the judiciary is instead asked to make the decision at the outset. Secondly, your Lordships should in any event have no doubt that if Parliament decides that it is appropriate to ask the judiciary to perform this role at the earlier stage, Her Majesty’s judges will perform their duty faithfully and effectively.

That is what I wanted to add on the amendments of the noble and learned Lord, Lord Lloyd. If, however, judicial control at the outset is not to be included in this Bill—which would be most regrettable—and if the imposition of a TPIM order is to remain at the outset an administrative process, then I have an alternative amendment, Amendment 17, to which the noble Baroness, Lady Hamwee, has added her name. The amendment concerns the standard of proof.

Under Clause 3(1), 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”.

Amendment 17 seeks to substitute a test of the balance of probabilities. I would ask the Minister, in responding to this debate, to explain why it is that reasonable belief should suffice as the test to be imposed by the Secretary of State. A belief may be reasonable but wrong. Why should these sanctions be imposed on a person if the Secretary of State is unable even to be persuaded 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 the resources available to them, cannot satisfy the Home Secretary that on the balance of probabilities more likely than not an individual is involved in terrorist activities, surely there is no justification for imposing these restrictions on them. Of course, surveillance measures may well be appropriate even in relation to such a person against whom it cannot be shown on the balance of probabilities that they are involved—but that is a different matter and we are not discussing surveillance measures.

I want to speak also to Amendments 42 and 43 in this group which stand in my name. They ensure that when the court assesses the TPIM at a later stage under Clause 9, the court should form its own view on the merits and not apply a judicial review test. These amendments arise out of the concern expressed by your Lordships’ Constitution Committee, of which I am a member, at paragraphs 14 to 17 of its report. At Clauses 9(2) and 16(6), the Bill provides that when the court reviews the TPIM at the later stage, it should apply a judicial review test. In the control order context, the courts have made it very clear that they will treat the review as an appeal on the merits of the case. The Government’s Explanatory Notes accompanying the Bill accept that this enhanced level of scrutiny should also apply to the TPIMs.

The report of the Joint Committee on Human Rights, published today, also supports my Amendments 42 and 43. It says:

“The surest way to deliver the intense scrutiny that the Government says it intends is to write it explicitly into the Bill. We therefore recommend that the Bill be amended to make it clear on the face of the Bill that the review to be conducted by the courts at the review hearing is a ‘merits review’ (as opposed to a supervisory review)”.

Will the Minister please accept, as the Constitution Committee and the JCHR have proposed, that it is desirable to make it clear on the face of the Bill that at the later stage the court will be conducting an appeal on the merits, just as is the case in relation to control orders and as the Explanatory Notes state the Government intend to occur?

[Lord Phillips of Sudbury]

My Lords, my name appears with others on Amendments 1 to 4, 16 and 18 to 22. Amendment 5 stands in my name only. I accept that the Bill is warranted, but I echo the point that where in extreme circumstances—national security is a fit subject for an extremity—one departs from a fundamental freedom, it seems to be blindingly obvious that there is no less a fundamental duty to minimise that departure. I cannot for the life of me see how we do that by giving to a politician, however distinguished and assiduous, the task of making one of these—I am tempted to say draconian—orders on his or her own. That cannot be right and I echo all that has been said, in particular by the noble and learned Lord, Lord Lloyd, and by my noble friend Lord Goodhart.

16:15

Home Secretaries are always overbusy, and ludicrously overstretched for much of the time. They are not trained to make judgments of this kind, and one has to say that they are politically influenced—some may say biased. One cannot be a senior member of a Government engaged in highly contentious foreign policy matters—for example, the Iraqi invasion—and pretend that one can shed all reference to the political policy of the time in order to reach an unbiased decision on a matter of such gravity. Above all, there is no more difficult judgment than that which needs to be made in the first instance in these cases. It is, par excellence, a job for an experienced judge who is used to analysing complex facts and to balancing conflicting and often subtle issues.

Lastly, there is a utilitarian argument that is apt to be forgotten. If one does not do everything conceivable, and everything that a civilised community can do, to mitigate the departure from normal judicial essentials, one inadvertently creates an environment in which extremism flourishes rather than is deterred.

I will say a quick word about my probing Amendment 5, which suggests that the judge or judges who, under Amendment 1, would make that initial judgment are drawn from a panel established for the purposes of the Bill by the Lord Chancellor, with the approval of the Lord Chief Justice in England, the Lord Chief Justice in Northern Ireland—although I did not mention that—and the Lord President of the Court of Session in Scotland. Again, this is a highly practical amendment. Very often, high urgency attaches to these matters: for example, a telephone intercept that indicates that within hours a potentially lethal explosion will occur. Having a panel, at least one of whom is permanently on call and available, and all of whom have been initiated into the particular complexities of the judgments that need to be made under the Bill, would be desirable and practical and would lead to the best results.

My final point is to emphasise that we are calling on our fellow citizens, whether they be the Home Secretary or judges, to undertake as difficult a judging task as exists in the panoply of judging. I hope that the Government will concur with the amendments.

[Lord Carlile of Berriew]

My Lords, in this context, unlike my noble friends and other noble Lords who have spoken, I propose to speak in support of the Government and of the proposals in this part of the Bill. I hesitate to dice with a great historian on matters of history, but I say to the noble Lord, Lord Morgan, that he was a little selective in his expression of the historical context. First, in describing Regulation 18B, perhaps he should have told the House that it was of a completely different character. The way in which it was made meant that the victim or subject knew nothing at all of the reasons why the order was made. The so-called tribunal that heard Regulation 18B cases was completely lacking in transparency of any kind. The great dissenting judgment of that wonderful Welsh judge, Lord Atkin, in Liversidge v Anderson took decades to be accepted as the norm for judicial review. Although Churchill described Regulation 18B and its procedures as,

“in the highest degree odious”,

a phrase that has become celebrated, the fact remains that during Churchill’s prime ministership numerous people—indeed, hundreds of people—were imprisoned as a result of it, and he did not take steps to legislate in favour of that dissenting judgment. Indeed, it was long after he had ceased to be Prime Minister that that happened. I think that the lessons of history as described by the noble Lord are not terribly helpful.

One should also bear in mind that whether we are talking about control orders or the diluted version in TPIMs—admittedly only slightly diluted, apart from the matter that we are going to consider in the next group—they do not involve the incarceration of the individual. They involve some restrictions on the individual’s freedom which I understand most in this House regard as proportionate and reasonable given the requirements of national security.

My noble friend looks as though he wants to intervene, but then he always does. Does he want to?

[Lord Phillips of Sudbury]

He does. It seems to me that my noble friend’s historic account of Regulation 18B omits to mention that it was prevalent during wartime and that, as soon as that was over, it was repealed.

[Lord Carlile of Berriew]

Which was one of the reasons why it was so unjust, because a very large number of people were made the subject of Regulation 18B and almost none of them had any evidence of any kind whatever against them. When we are dealing with TPIMs or control orders, we have individuals against whom there is very robust intelligence. I do not think my noble friend has had the opportunity to read that intelligence, but had he done so he would undoubtedly be so satisfied, being a reasonable person.

[Lord Morgan]

I do not propose to review the noble Lord’s review of my version of history, but I think it worth pointing out that the ignorance of the evidence against them is precisely one of the problems in this case. The noble Lord rightly says that there is intercept evidence, but it is evidence denied to the person. I agree that the person is not incarcerated but he is seriously restricted.

[Lord Carlile of Berriew]

I do not know whether the noble Lord has studied the effect of the case of AF (No. 3), but if he were so to do, he would find that there is a requirement for the court. Successive Home Secretaries, close to whose department I have worked, have always been assiduous to ensure that there was sufficient material—particularly since AF (No. 3)—so that the individual concerned knew the case he had to meet, at least in gisting terms. I urge the noble Lord to read the Green Paper published today by the Ministry of Justice, Justice and Security, which deals in part with these matters.

I would like to move on to the substance of these amendments. The noble and learned Lord, Lord Lloyd of Berwick, called into his argument the requirement for a court to approve a derogating control order under the 2005 Act. In deploying that argument, surely we should remember that, first, there have been no derogating control orders under the 2005 Act; and secondly, had there been a derogating control order, it would have been so dramatic that we would have had to derogate from part of the European Convention on Human Rights. This would have required, in effect, a change to our constitution which plainly ought to be passed through the courts at the earliest possible phase. I am afraid that, with real respect, I reject that argument.

In dismissing deportation applications and deportation decisions that are made daily by Home Secretaries, the noble and learned Lord said that they are made against foreigners so it is less significant, but if he thinks back to the Belmarsh case that was decided at the end of 2004, he will recall that the Judicial Committee of this House, of which he was a most distinguished member at one time, held that discriminating in that way against foreigners was unlawful. Indeed, the so-called Belmarsh provisions were struck down because they were disproportionate and discriminated against foreigners by treating them differently from United Kingdom citizens.

[Lord Lloyd of Berwick]

My Lords—

[Lord Carlile of Berriew]

Perhaps I might finish this point before, predictably, the noble and learned Lord stands up. I do understand the distinction he is making. It seems to me, with great respect, somewhat casuistic.

[Lord Lloyd of Berwick]

Surely the noble Lord must accept and understand the difference between deporting a British subject and deporting an immigrant. It is obvious.

[Lord Carlile of Berriew]

What I understand is that a deportation decision can be made by the Home Secretary. The administrative court is considering these cases hour by hour, let alone day by day, often as matters of great urgency. It is considering cases in which people have been imprisoned. Sometimes, very young people are imprisoned in unpleasant circumstances in this country. I do not hear the noble and learned Lord saying that this is an act that should be the subject of approval by a judge. In any event, it would be a practical impossibility because the Upper Tribunal and the administrative court are swamped by more than 10,000 of these cases at present.

I also reflect on much simpler situations. It is suggested that taking a citizen’s freedom away is something that should be determined by a judge in every circumstance. But we even let police constables do it every day of the week. When a police constable arrests a citizen for something as “minor” as, for example, shoplifting, the person may be taken into custody on the fiat of a police constable. When people are charged with serious offences and not bailed, although they are brought before a judge quickly, as is envisaged in this Bill, they are taken off to such unpleasant places as Strangeways or Belmarsh and find themselves in custody until they are brought up fairly summarily before a judge. Although it goes without saying that judges in every instance are very careful in considering such cases, the care they take does not bear comparison with the care that High Court judges give to controlees in control order cases.

We have already mentioned deportation cases. Organisations are proscribed by the Secretary of State, taking the precious freedom of association and membership of groups away from citizens of this country and foreigners without discriminating between them. Decisions are made to invade people’s privacy in what may be an outrageous way by warrants to intercept their telephones as a result of administrative acts. They are not brought before a court. Certainly, retired judges are involved in these decisions but these are not transparent hearings with evidence and tribunals. The subject does not even know that it is happening. In addition, covert surveillance, which can be an appalling invasion of people’s privacy, is performed as an executive act.

It seems to me that there is some confusion here among my noble friends and other noble Lords in their analysis of the roles of different parts of the state apparatus in the conduct of state business. In my judgment, for what little it is worth, the act of making a TPIM or a control order has exactly the character of ministerial responsibility that successive Home Secretaries, some of whom are noted Members of your Lordships’ House, are able to carry out. What follows has exactly the character of judicial scrutiny which judges are extremely well able to carry out and are experienced in carrying out. It seems to me to be a clear part of our constitutional settlement and to fit within it very clearly.

The standard of proof is not an easy question and I do not pretend that there is a perfect answer to it. If one reads through the open judgments in control order cases, one sees that the reasoning of judges in those cases has been very strong. In almost every case, I would venture that in reality the judgment has been made on the balance of probabilities and I would not have a particular difficulty if that was the standard set.

However, there is a danger of underestimating the difference between reasonable grounds to suspect and reasonable grounds to believe. As a judge on the Judicial Committee of this House put it on one occasion: “Reasonable grounds to suspect means I suspect that it may be so, while reasonable grounds to believe means I believe that it is so”. It seems to me that the executive act of a Minister asking the question “Do I believe it to be so?” is a proper standard to set and can be scrutinised carefully by the courts. If the proof of the pudding is ever in the eating in court, that is what has happened with control orders.

So far as a one-year TPIM with a two-year limit is concerned, when I was the independent reviewer of terrorism legislation I always supported a two-year limit, and I still do. I see no reason why there should not be a one-year limit with an extension available. That seems to accord with the purpose of control orders or TPIMs. One can reasonably expect that during a one or two-year period, the potential of the individual concerned to be a terrorist is much reduced as a result of the order. However, I do have to say to noble Lords that there are cases where that has not been so, and there would have to be some exceptional provision so that those who, despite a TPIM, continue to be active in terrorism should be subject to a new order if the evidence is available at the end of a two-year period.

16:30

[Lord Newton of Braintree]

My Lords, having vigorously indicated to the noble Lord that I wanted him to speak before me, I am left rather regretting it because I now find myself caught in the crossfire between Members on the Liberal Democrat Benches and Members on the Cross Benches. I have the deepest regard for both groups. I ought to say, if no one has said it before, that the noble Lord, Lord Carlile, deserves a huge vote of thanks from all of us for the work he has performed over many years in the role to which he has just referred. If I arrive at what is possibly a slightly different conclusion that is closer to that of my former constituent and noble friend Lord Phillips of Sudbury, it will not be for want of admiration of the noble Lord, Lord Carlile.

My starting point is that 40 or 50 years ago, give or take Regulation 18B, no one in this Chamber would have thought that anything like the successive regimes we have had since the 2001 Act were desirable. They have been imposed on us by a change in the world that we have not been able to control and which we have had to cope with in the interests of our citizens. But it has led us into things that we would not have wished to do in other circumstances. If anyone wonders why I have an interest in this, as well as in too many other things going on in the House at the moment, it is that those with longish memories will know that the choice fell on me to chair the Privy Counsellor Review Committee of the Anti-terrorism, Crime and Security Act 2001 which contained the provisions under which people were basically locked up in Belmarsh without being found guilty of anything, and the key was being thrown away. The all-party committee found that deeply unsatisfactory. I notice that the noble Baroness, Lady Hayman, who was a member of that committee, is in her place. We said that something had to be done about it. The then Home Secretary went out of his way to rubbish our report as quickly as he could and nothing happened until the courts threw out the relevant part and said that it just could not stand.

We then got to the control orders under the 2005 Act, which in my view were an improvement. I share the view which has been expressed that these new proposals are an improvement on those orders—perhaps marginal, but somewhat better. So we are moving in the right direction and I would not want it to be thought that I was hostile to the Bill or to its fundamental aim and purpose. However, I do think—here I come to the position of my noble friend Lord Phillips, the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Pannick—that this kind of thing is much better done as a court order rather than an executive act unless there are very strong reasons to the contrary. The noble Lord, Lord Carlile, adumbrated to great debating effect a list of things that are done as executive orders, and I do not want to debate all those with him, but the mere fact that we have done a lot of things by executive orders does not mean that it is desirable. If you do not have to do it, I do not think that you should. As far as I can see, the case has not been made that this should be an executive order rather than a court order. I therefore come down in sympathy with the general purpose of the amendments in this group.

[Baroness Hamwee]

My Lords, some of us are even closer to the crossfire.

I start with a question which perhaps picks up where my noble friend Lord Carlile left off. It concerns the time limit on the measures. I had intended to ask it later under some amendments which I have down, but I shall ask it now. I found it quite hard to follow the Bill at the points where it begins to refer to revival, revocation, expiry, and so on. I needed a flow chart to understand just what was available in terms of imposition of measures. Are there any circumstances in which an individual can be subject to a TPIM or a series of TPIMs lasting more than two years, and, if there is one episode of new terrorism-related activity, which is defined, how long in all can a series of TPIMs last?

I should make it clear that I very much support the amendments proposed by the noble and learned Lord, Lord Lloyd of Berwick, and supported by others. I also support the amendments of the noble Lord, Lord Pannick. On his Amendments 42 and 43, he quoted the conclusion today of the Joint Committee on Human Rights on the issue of a full merits review. It is perhaps worth reading into the record as part of this debate the comments that the committee made in leading up to that conclusion. It said that the Government in replying to its previous report had argued that,

“there is no reason to doubt that courts will continue to apply intense scrutiny in TPIMs cases, as they have in control order cases, and that ‘continued reliance on case law’ is the best way to deliver that intense scrutiny”.

That became part of the conclusion. It seems to me that that does not amount to an argument for the principles of judicial review and that intense scrutiny is not excluded by the approach which the noble Lord, Lord Pannick, has advocated and which I support. I have checked the Government’s response to the previous report by the JCHR. Nothing significant has been left out of the paragraph that I have just quoted.

On the “balance of probabilities”, I added my name to the amendment of the noble Lord, Lord Pannick. Can the Minister explain why under Clause 26, which introduces “enhanced” TPIMs, there is a higher standard of proof than for standard TPIMs? The same applies to the Draft Enhanced Terrorism Prevention and Investigation Measures Bill which is to have pre-legislative scrutiny. The memorandum from the Home Office to the JCHR regarding the draft Bill with the enhanced TPIMs, which, in particular, would provide for relocation, said that the higher test is because of the more stringent measures allowed by the draft Bill. Clearly it would apply the same argument to Clause 26. So called standard TPIMs are fairly stringent but, even apart from that, I do not follow the logic. The standard of proof as to the facts which permit a step to be taken is a different matter from the steps which are available. I regard those as closely related but logically separate issues. I am lost as to why the higher standard of proof, which, as my noble friend Lord Carlile has encouraged the House to think, would not be a risk to the Government in this context, cannot be applied.

[Lord Macdonald of River Glaven]

My Lords, I support the amendments. I can do so relatively briefly because I can quite easily and simply adopt many of the arguments that have been made.

Terrorism is the gravest and most dangerous kind of crime and TPIMs are a properly grave response to that threat. A consideration of what the imposition of a TPIM represents gives some clue as to what the correct process should be. The imposition of a TPIM represents a public finding that an individual is involved in acts of terrorism. Of course, the individual’s name is not publicised, but surely his friends and his wider community are aware of it. It is a grave step and a grave potential stigmatising of an individual with an association with the gravest kind of crime. It is in those circumstances that one is driven to the conclusion that, if a TPIM is to be imposed, it should be imposed not by a member of the Executive but rather by a court. It is in those circumstances that I support the amendments to that effect.

I have not yet heard an argument why it is better for these measures to be imposed by a member of the Executive. I have heard arguments from my noble and learned friend, whose advocacy I have heard many times in courts up and down the land and which never ceases to impress me, as to why it is not necessarily constitutionally inappropriate but not as to why it is positively better than the alternative. The argument that has been made by a number of my noble friends and other noble Lords is that, given what a TPIM represents and the gravity of the measure, if it can be done by a court it should be done by a court unless there is a very good reason why it should not. I have heard no such reason.

The same applies to the burden of proof. I agree entirely with the noble Lord, Lord Pannick: the balance of probabilities is a test which is tailor made, perfectly made, for the process which the court needs to go through in this situation. It is not the criminal standard of proof because these are, in essence, civil penalties, but a civil standard of proof which, as he said, is flexible, realistic, well understood by the judiciary and does justice in civil cases up and down the land, including in other civil preventive measures.

Again, I do not understand what the argument against this is. If it is that it should be easier to impose a TPIM—that we cannot trust a judge to come to a safe conclusion about whether something is more likely than not—that is a false argument. It is, if you like, a somewhat cowardly argument. We can trust the judges to apply a balance of probabilities test in TPIMs in a way that is both just and entirely capable of protecting the public.

16:45

[Lord Eames]

I rise to briefly support the amendment of the noble and learned Lord, Lord Lloyd, but do so from an angle that has yet to be mentioned in the debate this afternoon. I base it on my own experience over the years. Exercising the duties given to me in Northern Ireland, I saw at first hand the burden that successive Secretaries of State had to carry on behalf of the Executive in situations of dire necessity demanding often urgent and serious decisions in a matter of hours. The former Secretaries of State who grace this House—I see the noble Lord, Lord King, in his place—will recognise the roles of the judiciary and the Executive.

The Bill has been thoughtfully carried to this stage, and I am aware from my own contacts of the thought and preparation that have gone into the terms before us. The Minister will obviously want to argue that the right way to do this in the case of urgent and very sensitive issues is through the work of the Executive and their decisions. In his position, many noble Lords would argue the same. However, where in the sensitive and urgent situation of widespread terrorism a whole community is faced with what should be protection by the Executive, there is a tendency not to value the importance of the community’s confidence in how those decisions are made.

In those years to which I referred in my own lifetime of experience, in the discussions to which I was privy and decisions that were taken where my own opinion was sought, there was no doubt of the urgency and necessity of moving as quickly from the level of executive or political decisions to what could be transparently seen as the decisions of the judiciary. The important point I am simply trying to underline is that, in our discussions this afternoon, let us bear in mind the question of the confidence of the community in decisions that are made at this level. I beg to suggest that, where those decisions are made by the judiciary, there is much more acceptance by a hard-pressed community under a situation of terrorism than in the other case. This is not to downgrade the integrity of any executive decision, and I am not doing that; I am simply saying that we must take a broader view. For that reason, I support the noble and learned Lord, Lord Lloyd.

[Lord Faulks]

I agree with what my noble friend Lord Macdonald and many other noble Lords said, that we can trust the judges. As the Bill currently reads, they have the task of scrutinising the imposition of measures on judicial review principles. Experience and the dicta of judges suggest that they will be particularly rigorous in this. This area is not generally considered one where Ministers are permitted quite the same sense of discretion as, say, on an issue of economics, but it is one where judges really can get in among the detail and form a view of a matter. They are only too conscious of the potential limitations of closed hearings and special advocates, and the potential risk that these present to those who are potentially the target of these measures.

On the amendment proposed by the noble and learned Lord, Lord Lloyd, I acknowledge his distinguished pedigree and the pedigree of the amendment, which I think goes back some time to the original control orders, but I respectfully suggest that it is inappropriate. I suggest that the obligation rests on the Home Secretary to protect the security of citizens. It rests upon her shoulders and it is a heavy burden. If one needs to find any emphasis in this from the Human Rights Act, Article 2 provides an obligation on the part of the public authority, the Government, to take measures to protect the life of citizens. Those measures will include appropriate measures to prevent outrages of this sort—that is of course what this Bill is concerned with. In this Bill she has to reasonably believe that an individual is involved in terrorist activity and reasonably consider that a TPIM and its appropriate measures are necessary. That is an exercise that she, with that heavy burden placed upon her, should perform.

As I understand it, this amendment is born out of an outright opposition to TPIMs and their predecessors, control orders. The courts have minutely examined these control orders in a number of cases. They have had various degrees of enthusiasm about them and about the closed hearings and the special advocates, but they said that they could operate unlawfully or they could operate satisfactorily—it would depend on the individual cases. However, they have survived what was a wholesale attack on them as a measure. It was not decided by any court that they were by definition contrary to the rule of law. It was acknowledged by judges in a number of cases that the security of the nation was a potent argument in favour of such orders.

It was not suggested in any of those judgments that it was better for the courts to have the decision in the way that this amendment suggests. I doubt that the courts would really relish such a task. Their job, traditionally, is to scrutinise, to examine the legality of the decision, but not to take upon themselves an essentially executive decision. I suggest that the Secretary of State—knowing, as she will, that her reasonable belief will be subjected to close scrutiny by a process which, correctly, places a heavy emphasis on the freedom of the individual—will exercise that power extremely responsibly, and I suggest that the balance should remain as it is in the Bill.

Finally, I will say something about the question of the standard of proof. If there is a fundamental shift in the way that power is to be exercised, as is suggested by the amendment, and the matter comes to the courts to decide, then it may be that the standard of proof should be the balance of probabilities. That is the test that has evolved over the years to decide civil matters generally. There have been recent decisions that suggest there is no shifting standard, but it remains the standard. It has developed pragmatically because there have to be decisions in civil cases to be distinguished from the higher standard in criminal cases.

However, as I understand the amendment proposed by the noble Lord, Lord Pannick, should the power remain with the Home Secretary, she should not have the decision based on reasonable belief but on balance of probabilities. I respectfully say that that balance of probability test may be appropriate where there is a judicial process to be undergone, but where we are talking about an executive decision, reasonable belief is much more appropriate than the process of coming to a conclusion on a 51:49 basis, which is far more suitable for a judicial determination other than the decision which at the moment would—and should—rest with the Secretary of State.

[Lord Pannick]

Under the Bill as it is at the moment, the judiciary are involved at the later stage. If they are to conduct a merits review, as the Government intend, they will apply the same test as to standard of proof as the Minister has applied in making the order. If the noble Lord accepts that balance of probabilities is suitable as a judicial test at the end of the process, surely the Secretary of State must apply the same test at the beginning of the process.

[Lord Faulks]

What I endeavoured to say was that the balance of probabilities would be appropriate were the courts to be taking that initial decision in place of the Secretary of State, which I understand to be the burden of the amendment put forward by the noble and learned Lord, whereas I understand that the suggestion made by the noble Lord, Lord Pannick, is that the initial stage and the decision to be taken by the Secretary of State should be on the balance of probabilities, and there I suggest that the current test is more suitable.

[Baroness Hamwee]

Does the noble Lord have any comments on the provisions in Clause 26, which provide for the Secretary of State to take a decision based on the balance of probabilities in the position where the more stringent measures might be applied?

[Lord Faulks]

I have no immediate answer to that, but at this juncture I would suggest that the initial decision-making process is far better on that basis because that is the most important stage: whether or not you decide that it is appropriate to impose, or seek to impose, a TPIM—with the approval of the court, it must be said.

[Lord Neill of Bladen]

My Lords, I wish to add my view. I entirely agree with what the noble and learned Lord, Lord Lloyd of Berwick, moved by way of an amendment. I fully support that and I also support the amendment tabled by the noble Lord, Lord Pannick. The basic question is one of justice: where should the order be made that leads to these deprivations of liberty? I have been told that you would have to be in a particular residence for a long period of hours. All those things in orders of that type are grave deprivations of privilege. Here, I agree with what the noble and right reverend Lord, Lord Eames, said based on his experience, which is borne out by the material that we are reading now as to where the public place their confidence. Perhaps not surprisingly, journalists come at the bottom. I do not know where lawyers come in but it is somewhere not very high up. Yet the judges seem to have the backing of the public as being in the safest and soundest place for judgments to be made. If those judgments involve the liberty of the subject, as I believe they do in this case, that is where we should put our money.

[Lord Rosser]

My Lords, one of the attractions of these debates is that we get not one but many legal opinions—different opinions from distinguished legal practitioners, at no charge and expressed with some force. The effect of many of these amendments is to significantly alter the Bill. One set within the group we are talking about gives the power to impose specified terrorism prevention and investigation measures on an individual to a court, rather than to the Secretary of State. It also appears to require that before such measures can be imposed, the individual concerned has to be or has been involved in terrorism-related activity, which, if that is the case, sounds a bit like shutting the prevention of terrorism door after the horse has bolted. Most people would prefer to see action taken against the small minority minded to commit acts of terrorism before they carry out the deed, rather than afterwards.

The second set of amendments we are discussing continues to give the Secretary of State a role but appears to raise the bar that has to be cleared by the Secretary of State before he or she can impose specified terrorism prevention and investigation measures. As far as the Government are concerned, the bar has already been raised under this Bill from “reasonably suspect” to “reasonably believes”. Amendment 17 raises it higher to,

“is satisfied on the balance of probabilities”,

a term with which the judicial system is more familiar and with which, no doubt, its practitioners are more at ease.

The outcome of all these amendments is quite likely to be that the number of people subject to the renamed control orders is less than it would have been under either of the thresholds—the Government’s proposed “reasonably believes” or the current legislation’s “reasonably suspect”—for the Secretary of State to cross before imposing a TPIM. That may be one, but surely only one, of the intentions of these amendments, since their authors are clearly unhappy with both the present arrangements and the amended arrangements set out in the Bill—so unhappy, indeed, that the first set of amendments largely takes the Secretary of State out of the equation.

17:00

We do not share the view of the Joint Committee on Human Rights that the courts are the best judges of what needs to be done to protect national security, and thus of when and on whom to impose specified terrorism prevention and investigation measures. However, we want the courts to have a vital and extensive role in ensuring that the Secretary of State has not exceeded the powers given by Parliament and has neither acted, nor proposes to act, in an unreasonable manner in the light of the information available. Neither do we sense that the amendments transferring responsibilities to the courts are prompted by a view that Secretaries of State have exercised their powers in relation to control orders in an irresponsible and unacceptable way, and that such powers should therefore be taken away from them. It remains our view that when and on whom to impose such measures as control orders—to address the exceptional situation in which we now find ourselves—is in essence a ministerial decision, based on the intelligence available, and should be made by a Minister responsible for national security, accountable to Parliament and the electorate, and open to challenge in the media.

[Lord Morgan]

Is my noble friend aware that the view he has expressed is totally contrary to those of such figures as Attlee and Aneurin Bevan, who were among the founders of the National Council for Civil Liberty, which discussed the rights of working men, including the right to demonstrate and the right to speak? He is taking a contrary view, which is very sad.

[Lord Rosser]

I have no doubt that the views that I am expressing are not in line with those of a great many people, but perhaps they did not have to deal with the situation that we face today—the threat of acts of terrorism. I repeat that we regard this as a ministerial decision. It should be made by a Minister responsible for national security, accountable to Parliament and the electorate, and open to challenge in the media. Such a decision is subject to scrutiny by and in the courts but it is the Secretary of State who should make the decision. The Government, not the courts, will be held accountable for the top priority of protecting the public from terrorism. Governments, not judges, pay the price for failing to protect the nation from terrorism, and people look to their Government, not the courts, to protect them from acts of terrorism.

[Lord Phillips of Sudbury]

The noble Lord has twice said that the Minister is answerable to the media. How can the Minister be answerable to the media for an order made in total secrecy?

[Lord Rosser]

I said “open to challenge in the media”; I am not sure that is the same as being accountable to the media. On this issue we continue to hold a very different view from that expressed by, among others, the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Morgan.

I appreciate that one of the arguments is that the very system of control orders that we have provokes people who might otherwise have been only minded to commit acts of terrorism actually to do so. I am not aware of the evidence that supports that contention but I am aware that acts of terrorism were committed when there were no control orders in existence and that control orders, which have affected a limited number of people, seem to have been in effect during a period when we have been afforded a fair degree of protection from acts of terrorism, despite the threat level having been either severe or substantial.

I also appreciate that there are concerns over human rights. However, I understand that it is being held that control orders are compliant with the European Convention on Human Rights. As well as the rights of the individual, there are surely issues about the rights of innocent people to be protected from acts of terrorism. As the Minister said at Second Reading:

“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”.—[Official Report, 5/10/11; col. 1134.]

The current Secretary of State has been prepared to use control orders, including the relocation provision, and has received the clear backing of the courts.

We do not agree with much of this Bill, as we made clear at Second Reading. The Government have already made changes that weaken the current arrangements and risk having an adverse impact on the ability to protect the public from terrorism. We do not agree with these amendments that we are discussing, apart from the thrust of Amendments 42 and 43 tabled by the noble Lord, Lord Pannick, which is why we have given notice of our intention to oppose Clause 9. We wait to see whether the Minister will accept any or all of the amendments, which in our view water down the current arrangements even further.

[The Minister of State, Home Office (Lord Henley)]

My Lords, this is a very big group of amendments before the Committee. I thank all noble Lords for their co-operation in agreeing that we should group together such a large number of amendments. However, I am afraid this means—I start with an apology—that I will have to answer this debate at some length because it is important to deal with the various points that have been raised.

The 20th report of the Joint Committee on Human Rights came out at 11 o’clock today, as the noble Lord, Lord Goodhart, reminded us. Obviously, the Government have not had time to consider it in detail. I will respond to a number of the points because the points it makes are similar to those put forward by the noble and learned Lord, Lord Lloyd, in his amendments, which have been supported by others. However, in due course—I hope that will be before we get to Report—the Government will want to make their formal response in the usual way. At this stage I will respond in part but noble Lords will understand that we are keen to give a fuller response in due course. I will endeavour to ensure that that appears before Report but I can give no guarantee at this stage.

I simply do not accept that the TPIM regime is outside the rule of law, as the noble Lord, Lord Goodhart, suggested. This Bill and its predecessor are and have been through the parliamentary process and are subject to review by the courts. To argue that this is beyond the rule of law is unfair and excessive. This large group—

[Lord Goodhart]

My Lords, I am grateful to my noble friend for giving way. That is a misapplication of what I was trying to say. I said that you cannot achieve a rule of law without law, and that involves the right of the law of those who are concerned with it. It is necessary to have law by lawyers in the courts. It does not mean that the decision of the Secretary of State or someone else is therefore to be disregarded; they are both different factors of the same situation.

[Lord Henley]

My Lords, I am sorry if I misunderstood my noble friend; I am a simple soul in these matters. However, my understanding was that he had suggested that this measure was outside the rule of law. What I was trying to get over is that I do not accept that point. The Bill is going through a proper process and after it has been enacted, by the will of Parliament, it will be subject to review by the courts. That is the important point to remember.

The group of amendments before us deal with four major points which I will deal with in order. The first one concerns the very simple point of whether the courts should make these orders rather than the Home Secretary. Secondly, we heard the arguments about where the standard of proof should be. A subsidiary part of that was in the amendments of the noble Lord, Lord Pannick, who said that even if we did not accept the first part—that is, shifting the argument to the courts—the standard of proof for the Home Secretary’s decision should be changed. Thirdly, we heard the arguments of the noble Lord, Lord Pannick, set out in Amendments 42 and 43, dealing with the full merits review. Fourthly, there were arguments about the time limit and how long the TPIM orders should last—whether one year, two years or beyond. I should like to deal at some length with all four points and I hope that I can get them in the right order. Perhaps my notes can assist me in that. It is important that I set out my points.

I should deal first with the proposal for court-paid TPIM notices. I do not agree, as I made clear at Second Reading, that judge-imposed TPIMs represent the right approach for the new regime. I am grateful that on this at least, I have the support of the Opposition Front Bench. They might not like other parts of the Bill but I got the distinct impression that the noble Lord, Lord Rosser, agreed with me on that issue. Our view is that it is appropriate that TPIM notices should be imposed by the Home Secretary. As the noble Lord, Lord Rosser, put it, she is responsible for national security and is best placed to determine what is necessary in the interests of national security, with the benefit of the broader knowledge of the threat picture that sits with her role as Home Secretary.

I emphasise that this is consistent with the approach taken to other executive actions in national security cases, and decisions based on sensitive material. This includes—an example given by my noble friend Lord Carlile—decisions to exclude, deport or deprive people of citizenship on the basis of national security considerations. It is also consistent with the approach taken on decisions to freeze terrorists’ assets—the new legislation which this House approved only last year. It is also consistent with the current provisions under which all control orders have been made.

Noble Lords will appreciate that this is the view not just of the Executive; it is also consistent with views expressed by the courts on the roles properly played by the Home Secretary and the courts in national security matters. The Court of Appeal explicitly recognised in its 2006 judgment, in the case of the Secretary of State for the Home Department and MB, that,

“the Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect”.

In the same judgment, the Court of Appeal also noted that the principle that the courts should pay deference to the Executive on matters relating to state security has long been recognised by the courts in this country, including the Law Lords, and the European Court of Human Rights. This supports the argument that the proper division of responsibilities in the field of national security is for the Home Secretary to make the decisions but for the judiciary to review those decisions, and to review them rigorously, as it always does.

The TPIM Bill provides for extensive, multi-layered court oversight and review of the Home Secretary’s decisions. This includes a requirement for court permission before imposing a TPIM notice, an automatic full review of every case in which a TPIM notice is imposed, and the right of appeal against the Secretary of State’s decisions in relation to, for example, requests to vary the measures imposed or revoke the notice. We think that this apportionment of roles best serves the interests of national security while ensuring that the civil liberties of those who are made subject to TPIM notices are properly protected.

I turn now to the question of the standard of proof. Again, the noble Lord has suggested that his judge-made TPIM notices should be made on the balance of probabilities. The noble Lord, Lord Pannick, offered his alternative in Amendments 42 and 43 by suggesting that the same should be imposed on the Secretary of State, were she to be the one making that decision. Although the approaches are different, the question that we need to raise is the appropriate test for imposing a TPIM notice.

The issue of a proper test for the preventive powers now included in the Bill was carefully considered as part of the counterterrorism review conducted by the Home Secretary and the Home Office. The conclusion reached was that it was right to raise the threshold for imposing a TPIM notice to “reasonable belief” from the test of “reasonable suspicion” required to make a non-derogating control order—which is the only kind that has ever been made. I am grateful to my noble friend Lord Carlile for reminding the House that no derogating orders have been made.

The decision was made as part of that review that the standard should be raised to reasonable belief from the test of reasonable suspicion. We believe that raising the threshold to reasonable belief provides an additional safeguard in the new regime compared to the current control order regime. As we made clear when we announced the outcome of the review in January, it is also consistent with the approach that we have taken to the provisions relating to terrorist asset freezing in the Terrorist Asset-Freezing etc. Act 2010.

The TPIM regime is a preventive regime intended to protect the public from the risk of terrorism. In reaching the decision to move to reasonable belief, we therefore considered whether changing the threshold in that way could put the public at risk. Our conclusion was that it would be unlikely that any of the cases where we would want to impose a TPIM notice would fail to meet the higher test of reasonable belief.

We are therefore satisfied that the change to reasonable belief is unlikely to be prejudicial to national security. At the same time, that represents an increase in the protection for the civil liberties of the individuals concerned. Those favouring the amendment take the view that the threshold should be further raised to “the balance of probabilities”. In that review, we considered that option. However, we concluded that a move to the balance of probabilities for the main TPIM regime would not give us the right balance to ensure that the public will be protected. Again, I stress that it is a question of getting the balance between ensuring the protection of the public and protecting the liberties of individuals.

[Lord Pannick]

Can the Minister tell the Committee a little more about why the balance of probabilities test would not provide sufficient protection for national security?

[Lord Henley]

The test that the noble Lord proposes, as is made clear by the Joint Committee on Human Rights report, is a slightly tougher test than what we suggest, which is that of reasonable belief. If there is a slightly tougher test, that obviously implies that there would be a greater risk to security. We have increased the test from reasonable suspicion to reasonable belief. We do not believe that we should increase it any further. I hope that the noble Lord will accept that argument; but I see that he does not, and I give way yet again.

[Lord Pannick]

I am simply trying to establish whether an assessment was made that a balance of probabilities test would be positively damaging to national security in this country. Was such a conclusion reached?

[Lord Henley]

I made clear that, as part of that review, we considered moving to that test. I was not in the Home Office at the time, so I do not know what precise consideration was given, but in the end the decision was taken that, yes, we will raise the standard from reasonable suspicion to reasonable belief, but that to take it beyond that would create risks. A decision had to be made on where the appropriate balance should be, and that is why we came down in favour of reasonable belief rather than a balance of probabilities.

I hope that the noble Lord can accept that, but I can see that it is a very difficult one and we will no doubt discuss it in later stages of the Bill. We believe that reasonable belief should deal with the questions raised by the noble Lord. The same applies to his Amendments 42 and 43 when talking about the decision being made by the Home Secretary herself. Again, I noted what my noble friend Lord Faulks had to say on that matter. Possibly they were better words for use with the Home Secretary’s decision rather than when talking about a judicial process. Again, we feel that we have the balance about right.

I turn now to the question raised on the full merits review in the noble Lord’s Amendments 42 and 43, which I mistakenly said were his amendments on the alternative, but that is covered by his Amendment 17, so I correct myself at this stage. His Amendment 42 specifies that a full court review of a TPIM notice under Clause 9 must be “on the merits” and would delete the subsection of that clause which specifies that,

“the court must apply the principles applicable on an application for judicial review”.

As the noble Lord explained, these amendments are designed to ensure that the review of an imposition of a TPIM notice provides a full merits review. He articulated the view of the Constitution Committee—yet another committee that has been looking at this—in its report on the Bill: that it should be clear, on its face, in cases concerning TPIM notices. The function of the court is not limited to ordinary judicial review. Such a constitutionally important matter should not be left for clarification in the Explanatory Notes. Similarly, the noble Lord, Lord Hunt, made it clear that the purpose behind his intention to oppose the question that Clause 9 stand part of the Bill is to facilitate consideration of this same issue.

The Government have been clear that judicial oversight of the process of imposing measures must be a key feature of the new regime. The involvement of the courts is an important safeguard for the rights of the individual, and the Bill takes a comprehensive and multilayered approach to this. As the Explanatory Notes explain, the case law relating to control orders is subject to a particularly intense level of review by the High Court. It is absolutely the case that the Government intend for the same intense level of scrutiny to be applied in court reviews of TPIM notices under Clause 9. All noble Lords will be aware that the courts have not been slow in finding against Home Secretaries of whatever regime for many years in control order litigation, and have used their powers to quash control orders or to give directions to the Secretary of State as appropriate under the current system of judicial review principles, as interpreted by the Court of Appeal in the case of MB.

We are of the view that the courts will apply relevant case law to TPIM proceedings as appropriate. That will, of course, include the case law on the type of review undertaken by the courts in these kinds of cases. In summary, in relation to the full substantive review of each control order, the Court of Appeal ruled again in MB that the High Court must make a finding of fact as to whether the reasonable suspicion limb of the statutory test for imposing a control order is met, and must apply intense scrutiny to the Secretary of State’s decisions on the necessity of each of the obligations imposed under the control order while paying a degree of deference—

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Lord for giving way because it enables me to anticipate the arguments we are going to have later, on whether Clause 9 should stand part of the Bill. He will know that the Opposition have concerns about the Bill, both because we think that it in some ways weakens our ability to prevent terrorism acts, and because we think that it weakens some of the safeguards. I very much agree with the noble Lord, Lord Pannick, on this. Given that the enhanced level of scrutiny has been one of the ways in which we have seen that the control order regime works effectively, I am surprised that the Government are not prepared to accept the spirit of what the Constitution Committee has put forward. I still do not understand why it is not possible to put this in the Bill.

[Lord Henley]

My Lords, I shall develop those arguments further when we get to Clause 9, which the noble Lord wishes to discuss. Late this evening though it might be, that might be the appropriate time, and I look forward to that in due course.

I shall now move on to the fourth point I want to deal with, which relates to the question of the time limit and how long a TPIM notice can have an effect. The noble and learned Lord, Lord Lloyd, proposes changes to the provision relating to the period for which a TPIM notice can be served. In his model, as I understand it, there would be a requirement for new terrorism-related activity to have taken place while the TPIM notice was in force in order to allow the TPIM notice to be extended into its second year. Again, we do not think that this strikes the right balance—and again, it is “balance” that we want to stress—in the context of preventive orders of this kind. Indeed, it would undermine the Government’s ability to protect the people of this country from a risk of terrorism.

Although we have decided that extension of a TPIM notice for a further year should only be allowed on one occasion—after which new evidence would be required to impose a new TPIM notice—we do not believe that new terrorism-related activity should be required in order to extend the original TPIM notice for that first year. In other words, one could make the original notice for a year, then extend it; but if one wanted to extend it further than those two years, then there must be new activity.

An ongoing necessity for the notice can be made out on the basis of the original terrorism-related activity, particularly where that activity was very serious, suggesting that the individual’s mindset and intention to do serious harm will not have changed after just one year subject to whatever restrictive measures have been imposed in the TPIM order. Indeed, many court judgments in the context of control orders confirm that ongoing necessity, for the purposes of public protection, is not dependent on any new terrorism-related activity since the imposition of the control order.

Although the Government’s view is that TPIM notices should not be used simply to warehouse people for very long periods and should not be imposed indefinitely on the basis of the same evidence—as can happen with control orders at the moment, if the statutory test continues to be met—we do not think that a notice that can only last one year without evidence of new activity while subject to the measures will be sufficient to disrupt the threat posed by the individuals concerned in many cases. Therefore we believe that the right balance—again, I stress “balance”—is this “one year plus one year” approach. It is a balance between protecting the public from persons believed to be engaged in terrorism-related activity and protecting the civil liberties of those individuals. I hope that also answers the point made by the noble Baroness, Lady Hamwee, as to whether one could go beyond two years with a TPIM notice. What I want to stress is that, if one wants to go beyond two years, one has to find some other terrorism-related activity.

I hope that that has dealt with most of the points that have been made in the very useful debate we have had on this large group of amendments at the start of the Committee stage of this Bill. No doubt we will be coming back to all these matters at a later stage of the Bill, just as we will be coming back to them on Clause 9, as the noble Lord, Lord Hunt, has assured us—possibly later on today. I hope that, as I have answered those points, the noble and learned Lord, Lord Lloyd, will feel able to withdraw his amendment, and we can move on with the Committee.

17:30

[Lord Lloyd of Berwick]

My Lords, I am grateful to the Minister for his careful response to this large group of amendments. I shall read what he says in Hansard. Indeed, I shall scrutinise, if that is the right word, what he says with care. He referred to the decision in MB as in some way supporting his view that it should be for the Secretary of State, rather than for the judge, to make the order. However, I do not agree with that reading of the case. As I read it, MB requires the court to make a full merits review at the Clause 9 stage. That is a matter we shall discuss again, just as we shall discuss again the Minister’s reasons for preferring reasonable belief to a balance of probabilities.

With two exceptions, all noble Lords who have spoken have supported these amendments. I am particularly grateful to the noble and right reverend Lord, Lord Eames, and to the noble Lord, Lord Macdonald. We shall definitely return to all these matters on Report, and in the mean time I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendments 2 to 5 not moved.

Clause 2 agreed.

Schedule 1 : Terrorism prevention and investigation measures

Amendment 6

Moved by

[Lord Carlile of Berriew]

6: Schedule 1, page 22, line 5, at end insert—
“Residence measureA1 (1) The Secretary of State may impose restrictions on the individual in relation to the residence in which the individual resides.
(2) The Secretary of State may, in particular, impose any of the following—
(a) a requirement to reside at a specified residence;(b) a requirement not to allow others to reside at that residence without the permission of the Secretary of State;(c) a requirement, applicable between such hours as are specified, to remain at the specified residence.(3) The specified residence—
(a) may be in any locality in the United Kingdom that appears to the Secretary of State to be appropriate;(b) may be a residence provided by or on behalf of the Secretary of State(4) If the specified residence is provided to the individual by or on behalf of the Secretary of State, the Secretary of State may require the individual to comply with any specified terms of occupancy of that residence (which may be specified by reference to a lease or other document).
(5) A requirement of the kind mentioned in sub-paragraph (2)(c) must include provision to enable the individual to apply for the permission of the Secretary of State to be away from the specified residence, for the whole or part of any applicable period, on one or more occasions.
(6) The Secretary of State may grant such permission subject to either or both of the following conditions—
(a) the condition that the individual remains overnight at other agreed premises between such hours as the Secretary of State may require;(b) the condition that the individual complies with such other restrictions in relation to the individual’s movements whilst away from the specified residence as may be so required.(7) “Agreed premises” are premises in the United Kingdom which are agreed by the Secretary of State and the individual.
(8) Sub-paragraph (6) is not to be read as limiting—
(a) the generality of sub-paragraph (7) of paragraph 14 (power to impose conditions when granting permission), or(b) the power to impose further conditions under that sub-paragraph in connection with permission granted by virtue of sub-paragraph (5) of this paragraph.(9) In sub-paragraph (7) “applicable period” means a period for which the individual is required to remain at the specified residence by virtue of a restriction imposed under this paragraph.”

[Lord Carlile of Berriew]

My Lords, in tabling this amendment, I am grateful for the support of the noble Lord, Lord Hunt of Kings Heath, who has put his name to it. This group of amendments is about relocation, an issue we discussed at Second Reading. The first sentence of the executive summary of the Justice and Security Green Paper, published today by the Ministry of Justice, is:

“The first duty of government is to safeguard our national security. In delivering this duty, the Government produces and receives sensitive information”.

I do not want to repeat at great length the arguments on relocation presented at Second Reading. I simply want to reiterate that the sensitive information, the security that the Government have received, points to the need, for the time being at least, to continue as part of the main legislation the power to order relocation, used sparingly as it is and subject to the scrutiny of the courts.

I have drafted the amendment so as to keep the existing control order provisions for relocation until after the Olympic Games, choosing a date after 1 January 2013. At that point, it would be open—and I am completely open-minded about this—to the Government to come back to Parliament and to replace the relocation provisions with what is in the Bill, which would remove relocation subject to emergency legislation. All that would be required would be an affirmative resolution of both Houses. There would therefore be a debate in which the Government would pass to each House of Parliament the advice that they have received from the security services, including the sensitive information to which I referred earlier.

I can best make my argument for this group of amendments by asking the Minister a series of questions. First, is it correct that the National Security Council, which is made up of Ministers only, has been advised against the removal of relocation from the list of available powers? If the NSC was so advised, I suspect that the Minister will be driven to confirm that the removal of relocation is not as a result of a debate on the merits but as a result of political considerations founded on the manifestos of the two partners in the coalition. I am as enthusiastic about the coalition as most Liberal Democrats—well, nearly—but I am not enthusiastic about political considerations trumping national security, which is what I fear may have happened.

My second question is: have Her Majesty's Government received any advice from those who are currently operational in MI5, MI6, GCHQ or SO15, the counterterrorism command, that the relocation power has become an unnecessary component of national security for the time being? If they have, perhaps they will tell us what it is and whence it came, because my belief is that the advice will be eccentric and not in the mainstream.

My third question is: does any part of the informed security bodies—those with the information—support the removal of the relocation power before the Olympics and Paralympics, as opposed to after them? In other words, what consideration has been given to the pinch point that will be created by the Games? We should remember in this context that we are talking about the security not only of the Olympic Park and the other venues where Olympic and Paralympic events will take place. One effect of the Games on policing in this country will be that a large number of police officers will be removed from their normal duties up and down the country—dare I say to the Minister, in Cumbria for example? Those officers will find themselves in unfamiliar places in east London, protecting the Olympic Park. Perhaps not in Cumbria but in some of our bigger and more populous resorts during the summer, there will be an increased risk of terrorism events going undetected.

My fourth question, which is connected, is really a rhetorical question. Surely on the basis of the evidence the Government must accept that they would be fulfilling what the Green Paper describes as the first duty of government by retaining relocation until after the Olympics and Paralympics are over.

My fifth question relates to something that was raised at Second Reading: the case of CD and the judgment of Mr Justice Simon. When the CD case was heard earlier this year, did Her Majesty's Government consider it proportionate and in the interests of national security to request a relocation component in CD’s control order? If they did, I come to my final question: have they changed their mind about CD? If they have, why have they done so?

The decision in the case of CD was taken on the basis of arguments presented on behalf of the Government, with special counsel present, after the publication of the counterterrorism review that was independently and very capably scrutinised by my noble friend Lord Macdonald of River Glaven. If the Government had decided that relocation was no longer necessary, it is surprising that they bothered to make the argument against CD. One should, after all, contrast it with the decision made in relation to Section 44 stop and search, which remained on the statute book long after the Home Secretary made the welcome announcement that it was in effect no longer to be used. I am driven to the conclusion that there was a merits argument in the Home Office about both these issues and that the decision that was taken on the merits was that Section 44 should no longer be used because we did not need it, but the decision that was taken on the merits in relation to relocation and CD was that it should continue to be used because we do need it. All that leads me very reluctantly to the conclusion that the removal of relocation has far less to do with the Government’s first duty than with meeting some arguments that have been made before this Government were formed and in a political context, including a very powerful argument made in a Times article by my noble friend Lord Macdonald before he was a Member of this House.

What I would ask the Minister to do is merely to confirm at this stage, because we will return to this later, that the Government are considering this matter and are now considering it on its merits. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I rise to support the noble Lord, Lord Carlile, and have added my name to his amendment. I really hope that the Minister will give this earnest consideration. He will know that I am highly critical of the Bill that he brings before us. It is clear that the exclusion provisions within control orders have proved to be highly effective. The evidence given by the deputy assistant commissioner to the Public Bill Committee in the other place was quite persuasive on that point. The noble Lord, Lord Carlile, has already referred to the case that the Home Secretary herself brought forward and argued for the use of such provisions. It is clear that the Government know that they may need these provisions in the future. That is why we have the enhanced TPIMs draft Bill for use if it were ever to be required.

We have the quite extraordinary provision in this Bill that if the enhanced provisions were to be required, and were to be required in the period between the Dissolution of Parliament and the first Queen’s Speech in the next Parliament, the Home Secretary is to be empowered by this Bill to use those provisions. If ever there were an admission that the Government know in their heart that they may need those provisions and, indeed, have used them in their period of office, there is the evidence.

We then come to the second issue that the noble Lord, Lord Carlile, has alluded to. It is whether it is right or sensible to remove those relocation provisions at the current time. We have the Olympics, and we also have the issue that, in lieu of the exclusion provisions, additional surveillance will have to be undertaken by the police at additional cost, with additional resources and using more people. The noble Lord will know that in the Public Bill Committee in the other place the deputy assistant commissioner expressed some concerns about the length of time that will be required by the police to put those measures into place.

The amendment moved by the noble Lord, Lord Carlile, quite brilliantly in my view, gets the Government off the hook for the period between the end of the Olympics and the beginning of 2013. It also says to the Government that, if at that time or beyond it they reach a conclusion that they do not need the exclusion provisions, they can simply bring an order before Parliament. No doubt Parliament would assent to that order, as it does assent to government orders. However, if the Government at that time are not so assured, they already have the provisions on the statute book with the benefit of them having gone through Parliament and being effectively scrutinised rather than using the very unsatisfactory approach of having an emergency Bill in the stocks ready for use.

I hope that the noble Lord, Lord Henley, might be sympathetic to the amendment in the name of the noble Lord, Lord Carlile. It is meant to be a constructive response to current circumstances. I certainly think that it warrants due consideration.

17:45

[Lord Pannick]

My Lords, I offer the Government my support on this issue of relocation. The noble Lord, Lord Carlile, expressed concern that political considerations, as he put it, are trumping national security concerns. I suggest to the noble Lord and the Committee that the issue is more difficult than that. The way in which the noble Lord puts it ignores a vital dimension. The reality is that relocation is a particularly intrusive measure to impose on the subject. It is strikingly damaging to the personal life of the individual and his or her family.

[Lord Hunt of Kings Heath]

Will the noble Lord address the evidence given by the deputy assistant commissioner, which I know he will have read, which pays tribute to the effectiveness of that exclusion order?

[Lord Pannick]

I am coming to that, but let us at the outset recognise the impact of a relocation measure. If one is going to adopt a measure or power of this sort, one needs to recognise the striking impact that it has on the spouse and the children. A measure that amounts to internal exile of a person needs a compelling justification.

[Lord Carlile of Berriew]

I know that the noble Lord eats legal authorities for breakfast, probably literally sometimes. I would just like him to give his comments on the cogent judgment and reasoning of Mr Justice Simon in CD, the case to which I referred, in which the judge took the matters the noble Lord has just mentioned into account and reached a considered conclusion. Does he say that the judge reached the wrong conclusion, giving undue proportion to some of the factors he was weighing?

[Lord Pannick]

Of course, the learned judge was considering the exercise of the powers that are contained under the control order regime. The Committee and the House have to consider what is a fair balance—this is the test that the Minister rightly has repeatedly propounded—between national security and the liberty of the individual.

[Lord Carlile of Berriew]

I promise not to intervene on the noble Lord’s speech again but he is ducking the question. Does he not accept that Mr Justice Simon in that case, having weighed up the facts, came to the conclusion that the safety of the state and of the public was better protected by relocation and that it was proportionate to the interests of CD? If so, should we not keep the situation as it was then?

[Lord Pannick]

The noble Lord can intervene as many times as he likes. I welcome his interventions. My answer to his point is twofold. We can always add more and more intrusive measures and protect ourselves more effectively from the perspective of national security. The question is: what is a fair balance? I am assuming that the Government, not just concerned about a particular individual case but looking at these issues as a whole, have concluded that relocation would undermine the fair balance because of its particularly intrusive nature and that the combination of the measures contained in the TPIM and the surveillance measures that can always be imposed on an individual who is not relocated will effectively protect the public. It is true that there is a financial cost, which is the point made by the noble Lord, Lord Hunt. Does the noble Lord wish to add to that?

[Lord Hunt of Kings Heath]

The noble Lord is being very kind in accepting all these interventions, but this is an important point. If the Government were really confident, they would not be producing a draft emergency Bill or having the provision in this Bill to allow the Home Secretary in an election to use the enhanced measures. I am afraid the fact is that in their heart, and particularly in the noble Lord’s own department, they know that the exclusion provisions are very important. I am sure that, in the future, they are going to have to use the emergency provisions if this Bill goes through. I do not think that the Government have that confidence, and that is the worry.

[Lord Pannick]

We will hear from the Minister in relation to that in a moment. I am satisfied that a sensible and fair way of dealing with what is a very difficult issue, because of the primacy of national security and the particularly intrusive nature of a relocation power, is for the Government to satisfy themselves, as I assume they have done, that relocation powers are not needed. However, given the importance of this power, they recognise that it is sensible to have reserve powers available which, God forbid they are ever needed, can be brought into force. I support the Government on this.

[Baroness Hamwee]

My Lords, I, too, support the Government and I am very much with the noble Lord, Lord Pannick. If my noble friend Lord Carlile succeeds in getting answers to his questions about evidence, I shall consider that there is a huge amount of favouritism going on. That is exactly the sort of thing that we have all asked for on many occasions, but inevitably we are not satisfied because we know that advice to the Government is advice to the Government, and we cannot read their heart as we are being asked to do.

I do not quite understand the distinction between politics and security. For all the reasons we have talked about and will continue to talk about, it is a much more nuanced and complicated—there is probably a geometric term for it that I do not know—picture than a simple polarisation as regards the impact of particular measures. Of course surveillance is going to be costly, but another balance that one must come to is where one puts one’s efforts and spends one’s money.

[Lord Macdonald of River Glaven]

My Lords, I, too, support the Government on this issue. It does not surprise me at all that if the Government presently have a power, they will seek to use it, and it does not surprise me at all that if the security services presently have a power, they will seek to retain it. But the question is, as the noble Lord, Lord Pannick, said: what is a fair balance? Noble Lords will know that the counterterrorism review considered these issues very anxiously and received a great deal of evidence. It came to the conclusion that public safety could be protected in the absence of the power of relocation but in the presence of additional surveillance, for which funding was indicated, and with the sort of measures that have now been brought forward in the TPIM Bill. That was the considered conclusion of the review and appears to be the conclusion of the Government. I must say, having scrutinised the evidence which was supplied to the counterterrorism review, it was also my conclusion. I therefore support the Government on this question.

[Lord Newton of Braintree]

My Lords, having acknowledged on a number of occasions recently my capacity to fall to temptation whenever I am in the Chamber and make some remarks, I am even more tempted on this occasion because I am able to make a remark that, for most of the past six months, my noble friends on the Front Bench thought they would never hear: I support the Government.

[Lord Henley]

My Lords, as someone who started his ministerial career some 20 years ago sitting at the feet of my noble friend Lord Newton, I am grateful to hear those remarks. I always knew that he was sound, loyal and supportive of the Government in every possible way.

The noble Lord, Lord Hunt, was somewhat disparaging about the Enhanced TPIM Bill and asked why we have it. It obviously indicates that we believe there is a need for bringing in relocation because we have it in the Enhanced TPIM Bill. At Second Reading, I made it very clear that we hoped that we would never have to bring that Bill into force, but I also tried to point out how important it was that we should be able to debate it in a measured manner, which is what pre-legislative scrutiny will allow for, when the threat was not as high as it might be when and should we have to bring it in. That might be a better way to proceed than to debate it in moments of crisis and rush it straight off the shelves while minds are not necessarily as settled as they should be.

[Lord Hunt of Kings Heath]

Does not the noble Lord, Lord Carlile, propose an even better way? Essentially, he is saying, first, let us get over the Olympic-year problem by allowing the Government to have use of this power in this Bill. We are able to scrutinise it properly and if at some point in the future the Government are able to conclude that they no longer need it they can bring an order before Parliament. If I were sitting in the Minister’s place, I would be very grateful to the noble Lord, Lord Carlile, because it is a very helpful amendment.

[Lord Henley]

My Lords, I note what the noble Lord says, but I do not accept that. The power might be necessary in the future; that is why we have brought the Draft Enhanced TPIM Bill to the House and why the House will have its chance for pre-legislative scrutiny. We hope that we will not need to bring it into effect. However, we might have to bring it into effect at a time when Parliament is not sitting, which Clauses 26 and 27 allow us to do. As was made clear by the noble Lords, Lord Pannick, Lord Macdonald of River Glaven and others, it is question of getting the balance right. I am glad that the noble Lord, Lord Pannick, repeatedly stressed the word “balance” because it is all about balance.

Perhaps I may say a little more about how we reached this decision and where we think we are. The Committee will be aware that relocation has been of particular interest during the passage of the Bill both in another place and here and strong views, as we have heard today, have been expressed on all sides. No one disputes the very powerful disruptive effect that relocation of an individual to another part of the country can have on their involvement in terrorism-related activity. Equally, as, again, the noble Lord, Lord Pannick, made clear, it can have a very powerful effect on the individual and his family likewise. So such a power raises very difficult questions of proportionality, including in relation to the impact that it can have both on the individual and their family. The counterterrorism and security powers review acknowledged these difficult questions and considered them very carefully.

As was made clear following that review, the Government concluded that it should not routinely be possible under the TPIM system to require an individual to relocate without consent to another part of the UK. Debates on the issue, as, again, has been made clear, frequently turn on that question of balance, specifically between protection of individual liberty and security for the wider population. Views on where the right balance might be understandably differ in different parts and, dare I say it, on all sides of the House—not many noble friends of the noble Lord, Lord Hunt, have intervened, but I am sure that he would find that there are one or two on the Benches behind him who do not agree with everything that the Opposition have had to say. As the noble Lord will be aware, the former Government took the view that compulsory relocation was necessary as one of the wide range of potential obligations under the control order provisions. That was a perfectly legitimate position, and my right honourable friend the Home Secretary has used the power to relocate on a number occasions when she has imposed control orders.

However, the coalition Government do not think that this is the only approach that can be taken. Our conclusion, as we made clear in January, is that a more focused use of the restrictions that will be available under the TPIM Bill, together with—it is important to remember this and I am grateful that the noble Lord, Lord Pannick, reminded us of it—the significantly increased funding that we are providing for covert investigation and other measures, will allow us effectively to protect the public without the need for this potentially very intrusive power to be routinely available. That is where our approach differs from that taken by both my noble friend and the Opposition in their amendments.

18:00

We will of course be able to use the robust powers that we still have in the Bill to disrupt an individual’s involvement in terrorism. If I wanted, I could take noble Lords in some detail through Schedule 1, which sets out all those powers. The noble Lord shakes his head but I shall remind him that there is a power to require them to reside and stay overnight at a particular address within their home locality; there is a power to ban them from certain areas or places; there is a power prohibiting their association with individuals of concern and requiring prior notice of association with other individuals. I shall not go on but I want to make it clear that we have sufficient powers severely to disrupt the ability of the suspected terrorist and what he might do.

In normal circumstances, our judgment is that the measures that can imposed under the Bill, allied to the additional resources that have been provided to the police and Security Service—I again stress that—is the right package of measures to have in place. I can give an assurance to my noble friend that the director general of the Security Service has told the Home Secretary that he is content that the TIPM Bill provides an acceptable balance—I again stress the word “balance”—between the needs of national security and civil liberties. The overall package—it is not just the legislative proposals before us—mitigates risk.

However, we have always been clear that there may be exceptional circumstances where the measures in the Bill, together with the additional resources, may not be sufficient effectively to manage the risk that we face. That is why we have brought forward the powers in the Enhanced TIPM Bill—powers which, again I stress, we hope never to have to use—which can be brought into effect with considerable speed, but after, we hope, this House and another place have had a chance to give them considerable pre-legislative scrutiny.

As to the question of whether relocation should remain at least until the end of 2012, I can see that it is a beguiling proposal, but one is always suspicious of beguiling proposals. I fear the Greeks even when they come bearing gifts, or however it goes. The Opposition continue to express concerns that the police and Security Service will not be ready to implement the new system at the time the Bill is expected to receive Royal Assent because the additional investigative resources which will complement the system will not be in place. However, I can give an assurance that they will be in place in due time. The Metropolitan Police Service has confirmed that arrangements will be in place effectively to manage the transition from control orders to TIPMs. We are working closely with the Metropolitan Police to consider what further assurances can be given about readiness for that transition from control orders to TIPMs. Similarly, the Security Service has developed detailed plans for the agreed additional allocation over the next four years which it is implementing at some speed.

With those assurances, I hope that the noble Lords will feel that now is not the time to press their amendment and that they will consider withdrawing it. I do not think it is necessary. As I say, we have the Enhanced TIPM Bill, which can be considered at a slower pace as part of its pre-legislative scrutiny, and if it is ever necessary—I hope it will not be necessary—to bring it into force, it will be ready, having been considered at a measured place, to be brought forward. Having said that, I hope my noble friend will be prepared to withdraw his amendment.

[Baroness Hamwee]

My Lords, I think I heard the Minister refer—I hope I did—to plans for resources for the security services over a period which is longer than to the end of next year. If that is so, I welcome it. At the end of his speech he referred to the next four years. I welcome this because it would not be proper for this Chamber—most noble Lords not being privy to security information—to take a view as to what is required for up to the end of next year and it being something different beyond that. I am not trying to give my noble friend ammunition in favour of his argument but simply to put my concern that we should not be looking at the matter through that lens.

[Lord Henley]

My Lords, one is always very careful when one speaks on these matters with a Treasury Minister sitting at one’s side. However, I can give an assurance to my noble friend that we have agreed extra resources for the Security Service over the next four-year period.

[Lord Carlile of Berriew]

My Lords, I am grateful to the Minister for his careful answer to this short debate. I regret that he has not answered any of my six questions and I invite him to write to me with answers to each of those quite specific questions. I regard the emergency legislation model provided in the Bill as a deeply dysfunctional form of legislation. It will be very difficult to bring into force, involving parliamentary debates that are almost impossible to construct in a way that is neither in contempt of court nor breaks the sub judice rule.

I of course welcome surveillance, whether over a short or long period, being enhanced by the provision of extra personnel and additional technical facilities. However, I say to the Minister, to my noble friend Lady Hamwee and to the House that it is much more easily said than done operationally. Many of the individuals against whom this kind of surveillance is deployed are very intuitive about surveillance provisions and often live in places where it is virtually impossible for the police to deploy the full range of surveillance facilities. That is one of the reasons why relocation has been a useful and proportionate measure.

However, at this stage it would not be right to press the matter to a Division—I have the perhaps over-optimistic feeling that common sense at some stage will prevail—and therefore I beg leave to withdraw the amendment, with the purpose of returning to this matter at a later stage.

Amendment 6 withdrawn.

Amendments 7 and 8 not moved.

Amendment 9

Moved by

[Baroness Hamwee]

9: Schedule 1, page 22, line 14, after “hours” insert “reasonable”

[Baroness Hamwee]

My Lords, I shall speak also to Amendments 10 to 15. These are all amendments to the first schedule to the Bill which deals with measures—in other words, how the measures are administered. I am not seeking, and will not at any stage seek during the debate, to argue against the Government’s responsibility to protect their citizens, which is necessarily complex, nor indeed to disrupt activity—“disrupt” is the term the Minister used. However, I do argue that there may be different ways and means.

I wish to bring the Committee back to the issue of how one deals with the individual at the centre of all this and his or her family; to the possibility of tipping people, including in the wider community because these matters get known about, over into the very activity that we are seeking to prevent; and to the person that we will have at the end of the year or two years. I am well aware that my drafting if often more suited to a contract than a piece of legislation but I cannot help it. I was a solicitor in practice for even longer than I have been in the House. It may be that the answer to a number of my amendments is that the Human Rights Act deals with them but I will take a short time to raise the specific issues in the House.

Amendment 9 deals with the hours that an individual is required to be at his residence, suggesting that an overnight requirement should be for such reasonable hours as are specified. We know that a period of 16 hours is compliant with human rights but a requirement to be at homes for 16 hours—effectively, an early evening curfew—does not sit easily with the desirability of allowing the individual to work or study. An early evening curfew would, for instance, preclude working in the restaurant trade. Indeed, having to be at home for 16 hours would probably make it impossible to carry out any sort of normal work. Some people work from nine to five but we forget that they have to get there by nine and leave after five. That is more than the eight hours which is 24 minus 16. That is my first amendment.

Amendment 10 is on the question of location. The Secretary of State can require the individual to reside at a locality with which they have “a connection”. My amendment suggests changing that to “a substantial connection”. “A connection” could be a very slight one. Maybe “significant connection” would be better. That would be a slightly lower test than a substantial one. To take a deliberately absurd example, I would like to avoid sending an urban person off to the Yorkshire Dales, however beautiful, because Mrs Smith who used to work in his local shop has retired there. That would be a connection but not a very sensible one in this context.

Amendment 11 is on the terms of occupancy of a specified residence. Paragraph 1 in the schedule allows the Secretary of State to,

“require the individual to comply with any specified terms of occupancy of that residence”.

At first, I wondered whether this should be a third party’s terms of residence but the residence may be one provided by the Secretary of State. Pointing to a lease or tenancy agreement would be a more satisfactory way of doing that. That is alluded to but only as one of a number of possibilities. I assume that “specified” means specified by the Secretary of the State. Again, the Secretary of State might be tempted to go beyond the bounds of what one would naturally expect through this paragraph, but be permitted to do so.

Amendment 12 takes us to travel documents. As I have said, the documents—in particular the document referred to in paragraph 2(3)(d)—should be returned to the individual at his reasonable request. I am not proposing that a passport that has been surrendered should be handed back but, reading this, it occurred to me that a Freedom Pass, which allows an individual over a certain age to travel by bus for free throughout England, would fall within this category. Is it right to tell that individual that they cannot have their freedom pass which would allow them to get to, say, their niece’s wedding? Perhaps that is a bad example because attending a family wedding may raise other issues but I am not sure that this deals with that detailed sort of situation. I would like to see something put in place to permit for individual and very detailed requirements.

18:15

Amendment 13 takes us to paragraph 4 of the schedule, where a constable can give directions for the purpose of securing compliance with “specified measures”. That seems a very wide phrase in this context so I suggest the words,

“measures specified under this Act”.

Amendment 14 deals with paragraph 9, on work and study. The individual may be required,

“to comply with other specified conditions”.

I am not challenging the exclusion of certain work or study: learning how to make explosives or working as an engineer have been referred to as examples. Yet work is an important component in the self-respect of any individual. The self-respect of the individuals that we are talking about here—and that of their families—is a particular issue. Again, I seek a way of writing reasonableness into these measures.

That is very much behind my thinking in my final amendment, Amendment 15, on paragraph 10 and the reporting measures. I have heard of occasions under the current system where a controlee was required to report at a time of day that made work or study impossible. The individual is required to report to a police station,

“at the time and in the manner so required”.

I take it that that is in person. He will not be able to say to a prospective employer, “I need to nip out every day”—or twice a week or whatever it is—“at quarter to 12 to get to a police station which may not be very convenient. I will be away for an hour or two. I cannot quite take it as my lunch hour because it will take longer than that”. If that is at the wrong time of day, it makes certain work impossible.

Though these may seem at first sight to be things that we should not have to look at in legislation, we are always looking at how measures might work in practice and how legislation might be used. I have said already today that these measures are very stringent. An awful lot will depend on precisely how they are applied. I hope that I can be given some assurances, either on the wording or on the wording not being necessary, by my noble friend on the Front Bench. I beg to move.

[Lord Henley]

I hope I can give my noble friend the appropriate assurances. I will just touch on the individual amendments one by one, before coming to the generality.

My noble friend’s first concern was whether the requirement to remain overnight at a specified residence for specified hours would be exercised in a way that is consistent with the ability to work. We have made it perfectly clear that the new provisions are intended to be compatible with work and study, provided these do not affect public safety. We are certainly clear that an overnight residence measure will allow an individual to work, since the hours involved will not equate to the lengthy curfew that was possible. The specified hours will also be able to take account of work commitments where appropriate, and that could include early morning or early evening shift patterns. The necessity and proportionality of each measure, including each overnight residence requirement, will be determined according to the circumstances of each individual case. The occupancy rules that may be imposed in instances where the Secretary of State provides an individual with accommodation will in essence be those that would normally apply to an individual in private rented accommodation; in other words, a standard letting agreement.

The noble Baroness has a whole list of amendments. She wants to be sure that the connection with the area an individual is sent to is substantial. I can give her that assurance from the Dispatch Box. I do not think the word is necessary but obviously we would not send, as in the example she gave, a person to the Yorkshire Dales merely because they had once visited one individual there. Yes, it has to be substantial. Wherever she uses the word “reasonable”, again, we would want to ensure that “reasonable” was understood to be part of the Secretary of State’s decision.

The noble Baroness touched on the police reporting requirement. It is always the case that, where such a requirement is in place, the Secretary of State will have to act reasonably in terms of the times and manner associated with the requirement to attend a police station. Changes can be made to take account of a new job or other changes in that individual’s lifestyle. Amendment 12 touches on the idea of being able to return travel documents to the individual; for example, something like a Freedom Pass. Obviously asking for the surrender of a passport might be very necessary and obviously we would want to keep that, but I can see occasions where it might be reasonable to allow the return of something of the order of a Freedom Pass. If I am wrong in that matter, I will write to the noble Baroness.

I understand the noble Baroness’s general concerns about the lack of the use of the word “reasonable”, but I can give the assurance that it is fundamental to administrative law that the Secretary of State, or any other public body, behaves reasonably when taking decisions in any capacity. That will certainly apply to the Home Secretary in exercising her powers under this Bill, as much as it does to any other Minister or public authority taking decisions in an entirely different context. Indeed, it is a requirement under Section 6 of the Human Rights Act that public authorities—that obviously includes the Home Secretary—act compatibly with convention rights. So there is the additional requirement that any interferences with individuals’ convention rights are not only reasonable but proportionate. If the Secretary of State fails to act reasonably and proportionately in imposing measures under a TPIM notice, obviously her decisions can be challenged and potentially overturned in the courts.

Noble Lords will be aware that Clause 3 of the Bill provides that each of the measures imposed by the Secretary of State must be reasonably considered by her to be necessary to prevent or restrict the individual’s involvement in terrorism-related activity. Clause 9, which we will return to in due course, provides that the court must review that decision, among others, by the Secretary of State and that the court may quash or give directions in relation to any measures imposed where it is not satisfied with the Secretary of State’s decision-making, including where she has acted unreasonably or disproportionately. Therefore, my noble friend’s amendments are unnecessary as their effect will be achieved without it being necessary to amend the Bill, and I hope she will feel able to withdraw them.

[Baroness Hamwee]

My Lords, I will certainly do so. I am very grateful to the Minister. Perhaps he is able to comment on two particular matters. First—and I am sorry, this is almost like trying to prove a negative—can he say how substantial or significant a connection there needs to be in requiring somebody to live at a particular residence? This may be something that you recognise when you see it so I may be asking him a question that cannot be answered in the abstract. I was obviously grateful for his response to my rather extreme example. I do not know whether it is possible to answer what is required.

Secondly, on reporting, I am sure that the Secretary of State would be reasonable; I am much less sure that officers on the ground at particular police stations will be quite as reasonable. Is the Minister able to help the Committee as to the role of the Secretary of State and the comparative role of those officers and whether, though the Secretary of State’s intentions are entirely reasonable—I use the word again—it may be possible on the ground locally for them to be distorted and life made close to impossible for the individual because an officer in a particular police station decides on what is actually an unreasonable time, for their convenience? Of course I take the point about being able to challenge through the courts but there is a limit to how many challenges there can be. This is the sort of thing that we should be able to sort out, if not to everybody’s satisfaction, then by at least answering their points, without having to go down that sort of route.

[Lord Henley]

The noble Baroness probably answered her own question, at least the first one, on what would be substantial. It is similar to the fact that we have put in “overnight” but have not defined what “overnight” is. We all know what “overnight” means; what we are saying is that we do not want that 16-hour curfew, we want people to be able to have a job, should that be necessary, but we need not be specific. This is where the reasonableness of the Secretary of State’s decision comes in. Similarly with the connection: obviously that connection is not just going to be that you have been on a day trip to Blackpool or went to the party conference there many years ago.

[Baroness Hamwee]

It once had a better reputation.

[Lord Henley]

We had better not comment on Blackpool. I suspect the noble Baroness probably understands what I am getting at and I hope the House will.

Secondly, regarding how the police act, the requirements will be set out in the TPIM notice and in that the Secretary of State obviously will have acted reasonably and set out what are reasonable requirements. It is then a matter for the police to make sure, if there is a reporting requirement, that they interpret that in the proper manner. Obviously if they do not, they will be in breach of whatever appropriate duty of care they have. Therefore, I hope that they will take notice of what that order says. I hope with that the noble Baroness will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, I do not expect a response from the Minister, but I will use this last opportunity to encourage the Secretary of State, in imposing reporting restrictions, to make the sort of considerations that I have referred to entirely clear rather than just leaving them to be implied. If the Secretary of State can make that sort of thing express rather than implied, it could be a very sensible move. However, having said that, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendments 10 to 15 not moved.

Schedule 1 agreed.

18:30

Clause 3 : Conditions A to E

[The Lord Speaker (Baroness D'Souza)]

My Lords, I should advise the Committee that if Amendment 16 is agreed to, I cannot call Amendment 17 by reason of pre-emption.

Amendment 16 not moved.

Amendments 17 to 22 not moved.

Clause 3 agreed.

Clause 4 : Involvement in terrorism-related activity

Amendment 23

Moved by

[Baroness Hamwee]

23: Clause 4, page 2, line 28, leave out paragraphs (b) to (d) and insert—
“(b) conduct which is intended to encourage or assist conduct falling within paragraph (a);(c) conduct which is intended to assist individuals known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) or (b) evade lawful surveillance, investigation, or arrest.”

[Baroness Hamwee]

My Lords, my noble friend Lord Goodhart has put his name to Amendment 23, partly through his connection with Justice, which he will no doubt mention—the organisation Justice; I am not suggesting that other noble Lords do not have a connection with justice—and because of the intrinsic value of the amendment, which is one that Justice has suggested should be raised.

This amendment would delete a large part of the definition of terrorism-related activity, which came from the 2005 Act, and replace it with the words in my amendment. The current definition is broad and includes the facilitation of,

“the commission, preparation or instigation of acts of terrorism”.

That could embrace, for instance, innocent activities such as selling an ordinary household chemical that, unknown to the seller, is intended for use in bomb-making, or even perhaps acting as a legal representative for a terror suspect. The suggested amendment would restrict the definition to,

“the commission, preparation or instigation of acts of terrorism”,

“conduct … intended to encourage or assist”,

such acts and conduct intended to help,

“individuals … evade … surveillance, investigation, or arrest”.

The extent of the definition of terrorism-related activity has concerned people for some time. Of course, it has to be to defined adequately and appropriately, but I wonder whether we should not now be looking again at a tighter definition, which would not involve risk—that obviously has to be assessed—but that would not be so extensive that it could go well beyond what would be appropriate. I beg to move.

[Lord Goodhart]

My Lords, my name is put to this amendment and while I do not have a great deal to add to it, there is a certain difficulty here about how the existing text of Clause 4 is drafted. Clause 4(1) (b) states:

“conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so”.

In other words, the provision covers somebody who has facilitated the commission, preparation or instigation of such acts but has not intended to do so. That is the possibility. It is perfectly possible, for instance, that someone in a shop may sell something that is, on the face of it and so far as that person knows, entirely harmless. Yet in fact it has a particular use to the person who is buying it. In Clause 4, this is conduct that facilitates the commission of an act of terrorism but that is never intended to do so.

It would be inappropriate to go ahead without some further amendment and the provision in Amendment 23 is perfectly appropriate for this purpose. It deals with,

“conduct which is intended to encourage or assist conduct falling within paragraph (a)”,

or,

“conduct which is intended to assist individuals known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) or (b)”.

That provision seems to cover the effect of Clause 4 a good deal more accurately than its present formation does. It seems to me that it is necessary to change the drafting of Clause 4 and that Amendment 23 is an appropriate way of doing it. It may be that another one can be thought of that is even better.

[Lord Henley]

My Lords, Clause 4, as my noble friends have stated, provides the definition of the phrase,

“Involvement in terrorism-related activity”,

which comes from the 2005 Act. It obviously ought to be read in conjunction with Clause 30, the interpretation clause, which also refers us back, if noble Lords will bear with me, to the Terrorism Act 2000. The starting point of our response to my noble friend’s amendment is that it is unnecessary. The definition of terrorism-related activity included in the Bill is, as I said, identical to the one in the 2005 Act. We consider that to be the appropriate definition and we see no need to change it. It is settled, it has not proved problematic or objectionable and the courts have not, for once, disagreed with the assessment of successive Secretaries of State that individuals whose activity falls under it are committed terrorists.

Moreover, the Government’s approach to this clause is underpinned by other requirements in the Bill. Not only must the Secretary of State consider that the statutory test for the imposition of a TPIM notice is met, including,

“Condition A … that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity”,

but the court must review the Secretary of State's decision. As I said, that scrutiny will be rigorous and, as a result of relevant case law, it makes a finding of fact on the limb of the test relating to involvement in terrorism-related activity. It also gives “intense scrutiny” to the necessity of the notice and individual obligations.

I have looked very carefully at the amendment as set out by my noble friends. I have even produced a copy that I could share with the House, if it was necessary, showing how the clause would look after their amendment had been produced. However, I really do not think that on this occasion it is necessary. It would probably be safer and better to stick with the well-tried words that we have from the 2005 Act, with which the courts themselves have not had any problems, as I said. From the look on the face of the noble and learned Lord, Lord Lloyd, when I first mentioned that point, I certainly noticed a degree of agreement with me. If the courts are happy, I suspect we should leave well alone. I hope, therefore, that my noble friends will feel able to withdraw this amendment.

[Baroness Hamwee]

My Lords, my concern stems from the possible prospect of a less benign Home Secretary, who may misuse the clause. He—let us say he—might believe that an individual has been involved in terrorism-related activity because he, to use the example that we have given, has sold household chemicals that are to be used for something bad. I suspect that the courts have never had to face the position that I am putting forward and so have not been troubled by it. As ever, one tries to anticipate how legislation might be misused or abused, rather than used in what we would all regard as a proper fashion. However, I hear what my noble friend has said and beg leave to withdraw the amendment.

Amendment 23 withdrawn.

Clause 4 agreed.

Clause 5 : Two year limit for TPIM notices

Amendment 24

Moved by

[Baroness Hamwee]

24: Clause 5, page 3, line 4, after “if” insert “at the date from which it is extended”

[Baroness Hamwee]

My Lords, in moving Amendment 24 I shall speak also to Amendments 28, 30 and 31 to 35 in my name. Amendment 24 would amend Clause 5(3), which provides that a TPIM notice,

“may be extended … only if conditions A, C and D are met”.

I am not sure whether my amendment is one of drafting or principle. It certainly does not go to the major principle of the structure of the periods or their limits. However, as Clause 5(3) is drawn, the conditions are to be met and that would allow for an extension of the notice. My amendment concerns when those conditions are met, saying that they should be met,

“at the date from which”—

the notice “is extended”. It is not likely that the Secretary of State would decide in the second week of a notice that it should, in effect, be a two-year notice. However, again, looking to a less sensible or benign Secretary of State, that should not be possible. That is why I have tabled this amendment.

My other amendments all deal with the term “obviously flawed”, although I realise that I have missed at least one instance of it somewhere in the Bill. As my noble friend Lord Goodhart said in speaking to the first group of amendments, what “obviously flawed” means is far from obvious. My amendments, which would take out “obviously”, probe the meaning of the term. The context, in every case, would in effect be an ex parte application. Does “obviously flawed” mean prima facie? When these questions were asked during the Public Bill Committee stage in the Commons, the Minister said:

“An appropriate test at the permission stage acts as a check on the Secretary of State’s exercise of his or her powers. At that stage, it is clearly not appropriate for the court to make the final determination … because it is … an ex parte process”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 30/6/11; col. 212.]

I understand that but I am still not entirely clear about the term as distinct from the context; they may be inseparable. The Minister’s answer was that it reduced the hurdle that the Secretary of State must meet. I hope that the Minister will today give us some further sense of where in the hierarchy this comes.

18:45

In its 16th report—the earlier report on the Bill—the Joint Committee on Human Rights, in referring to the term “obviously flawed” and the principles of an application for judicial review, said at paragraph 1.31:

“That is not usually the approach when a court's prior permission is required to authorise the taking of an intrusive step by the police or the executive: when considering whether to grant a warrant to enter or search property, for example, the court's function is usually to determine whether the necessary conditions for the granting of the warrant are satisfied”.

It went on:

“In our view, the court's function at the permission stage should be to determine whether the conditions for imposing TPIMs appear to be met, which would be more in keeping with a requirement of prior judicial authorisation of an intrusive criminal justice measure”.

I hope that the Minister can help us and possibly tell us whether this term is used elsewhere. The fact that I have not come across it is by no means conclusive. It might help the Committee to assess it if it has been used in other legislation. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I hope I can give some reassurance to my noble friend on the issues that she has raised in her amendments today.

My noble friend’s first amendment relates to Clause 5 and the power to extend a TPIM notice for a further year. As Clause 5 makes clear, a TPIM notice can be extended only if conditions A, C and D are met at the time and the TPIM notice would otherwise expire. In particular, the notice and the measures specified in it must be considered necessary at that point. The Secretary of State cannot reasonably make a decision to extend until shortly before the notice would expire. If she attempted to do so, I am sure that the courts would not uphold her decision. My noble friend might also like to know that decisions on whether to renew control orders have been taken only relatively close to what would otherwise be the expiry date. However, I can also assure my noble friend that any subsequent change in relation to ongoing necessity will be reflected as soon as is practical, by either the relaxation of particular measures or the revocation of the notice as a whole. This is because necessity must continue to be made clear at all stages while the notice remains in place.

My noble friend has also tabled several amendments to Clause 6 and Schedule 1 in respect of the word “obviously”. These are Amendments 28, 30, 31 and 33 to 35. She seeks to clarify the word “obviously” and proposes deleting it from the phrase “obviously flawed” where it occurs. I can confirm that, in essence, this language is intended to mean much the same as prima facie in the context of what will normally be an ex parte application. In other words, her assumption on this matter is correct.

At the permission stage, the court will normally consider the application in the absence of the individual who is to have measures imposed on him. This is to ensure that the individual is not given advance warning that he is to be made the subject of a TPIM notice. The judge therefore undertakes an initial check at this early stage to ensure that there is nothing in the material presented to him to indicate that the Secretary of State is clearly wrong to think that the statutory test is satisfied, either in relation to having reasonable grounds to believe in terrorism-related activity or the need to impose a notice, or in relation to one or more of the proposed measures. It is a preliminary hearing that in essence ensures that the Secretary of State is not using her powers in an obviously inappropriate way, and therefore is very different to the further stages when the courts would review the actual decision.

The language of “obviously flawed” is well understood and applied by the courts as it is the language that is used in the control orders legislation—it is already there. The Government therefore consider that it is appropriate to continue to use this language. The full court review will, of course, be undertaken after the measures have been imposed. The procedures for that are set out in Clauses 8 and 9.

Finally, my noble friend’s other amendment in this group relates to what would happen in a circumstance where the court determined that only the Secretary of State’s conclusion that condition D is satisfied is obviously flawed—therefore, A and C had been met but D was flawed. This is likely to be where the court identifies that one or more of the individual measures specified in the proposed TPIM notice clearly does not meet the test that it is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. In these circumstances the court may give permission to impose a TPIM notice, but may in doing so give directions to the Secretary of State in relation to the measures to be imposed.

The amendment would amplify Clause 6(9) by adding the words,

“including the variation or cancellation of specified measures”.

As my noble friend has explained, she is seeking an assurance from me that this is already the case. She is seeking further information than that which was provided during the passage of the Bill in another place. I can confirm that, as drafted, Clause 6(9) would allow the court to give directions in relation to the variation of the proposed measures set out in the draft TPIM notice. Equally, it would allow the court to direct that a particular measure should not be included in the notice. It should be noted that while the court may give directions in this regard, it will remain the duty of the Secretary of State actually to draft the terms of the measure as this role falls not to the court but to the Secretary of State, with her recognised expertise and responsibility in matters of national security and the measures that are required in order to protect the public. But when doing so following the directions of the court, she will clearly be very constrained in how she conducts that drafting exercise.

I hope that I have provided sufficient assurance to my noble friend and that she will withdraw the amendment.

[Lord Hunt of Kings Heath]

My Lords, before the noble Baroness agonises over whether she puts this to the vote, the final point made by the noble Baroness, Lady Stowell of Beeston, about the Secretary of State’s responsibilities is well taken. I congratulate her on what is probably her first appearance at the Dispatch Box, certainly in this Committee stage.

[Baroness Hamwee]

My Lords, the noble Lord, Lord Hunt, gets there before me.

[Lord Harris of Haringey]

As ever.

[Baroness Hamwee]

No, not as ever, sometimes we are shoulder to shoulder. However, I congratulate the noble Baroness and I am grateful for her reply. It will deserve reading. I take her point about the term being used in control order legislation but I have written down,

“much the same as prima facie”.

I, for one, would not like to tangle with her over whether there is any significance in the term “much the same”. If anybody reading Hansard who is better qualified than me thinks that one should take issue with,

“much the same as prima facie”,

I will come back to it on Report. As I say, I will read the noble Baroness’s response. I am grateful to her for the detail. I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Clause 5 agreed.

Clause 6 : Prior permission of the court

Amendment 25 not moved.

Amendment 26

Moved by

[Baroness Hamwee]

26: Clause 6, page 3, line 14, at end insert—
“(1A) The application of subsection (1) extends to—
(a) a proposed extension under section 5,(b) a proposed variation under section 12(c), and(c) a proposed revival under section 13,of a TPIM notice.”

[Baroness Hamwee]

My Lords, Amendment 26 is grouped with Amendments 45 and 46, which also stand in my name. We touched on this matter when I asked the Minister a question about the length of TPIMs earlier this afternoon. I thank him for his response. Nevertheless, in case there is anything more to come out on this, I will speak to these amendments.

Amendment 26 to Clause 6 would provide that Clause 6(1), which makes the rest of the clause apply, extends to extensions, variations and revivals of a TPIM notice. As I said earlier, I had difficulty in following the procedures for the different decisions which are open to the Secretary of State. Therefore, I thought it best not to be too proud about my drafting as I do not have a professional reputation to be concerned about to the extent that other noble Lords who are very well established in their fields do. That is why I tabled that amendment.

Amendments 45 and 46, which seek to amend Clause 13, may already have been answered to an extent in the previous debate. Amendment 45 would provide that condition E—that is, the involvement of the court—would apply on revival of a TPIM. I am encouraged to think that a stopping or pausing of a TPIM might be possible—that is implied by the possibility of reviving one—but that this measure would apply after a TPIM had expired or been revoked. I hope to be told that this is provided elsewhere in the Bill. If it is not, it should apply. If a TPIM notice has expired or been revoked—no doubt, for good reason—all the conditions should then be tested again. I beg to move.

[Lord Henley]

My Lords, we seem to be moving at quite a speed. My noble friend need not worry too much about her drafting. We have all drafted amendments in the past that we knew were defective in many ways but they are often a useful way of getting the Government to the Dispatch Box to explain what is going on. It is worth going into detail on this issue.

I will deal first with the substantive amendment that the noble Baroness has proposed to Clause 6—to which Amendment 45 is consequential. As drafted, the Bill requires the Secretary of State to seek prior court permission to impose a TPIM notice, other than where the urgency procedure set out in Schedule 2 is relied on. This provides an important safeguard in relation to the initial imposition of TPIM notices by the Secretary of State. However, as my noble friend has identified, there is no subsequent requirement for the Secretary of State to seek the court’s prior permission before making any other decision in respect of the TPIM notice. Her amendment would require the Secretary of State to seek prior permission before making three particular decisions. The first is to extend a notice into a second year under Clause 5. The second is to vary the specified measures, on the grounds that this is necessary for preventing or restricting involvement in terrorism-related activity under Clause 12—that is, where the variation is not a reduction in the measures or one made with the consent of the individual. The third is a proposed revival of a TPIM notice under Clause 13. The Bill does not require court permission to take any of these decisions. However, it provides a right of appeal against the exercise of each of these powers.

19:00

I understand my noble friend’s desire to ensure that the Bill provides sufficient and necessary safeguards in relation to the use of its powers. However, the issue that we need to consider is whether the change she has suggested is necessary or appropriate. It would certainly represent a significant change to what is currently required under the control order regime, in which once court permission has been granted all subsequent decisions of the Secretary of State, including decisions to renew the order, are made by the Secretary of State but with an associated right of appeal.

The control order and TPIM regimes are, of course, relatively unusual in requiring court permission before an order is made or a notice is served. It certainly is not a requirement in any other national security context where the Secretary of State has powers to, for example, deport an individual or deprive them of their British citizenship. However we accept that this initial involvement is a proper reflection of the significant nature of the restrictions that can be imposed under either the Prevention of Terrorism Act 2005 or this Bill. It provides an additional element of court oversight to reflect the significance of the decision to impose a TPIM notice for the first time.

However, my noble friend may not be surprised to learn that in almost every control order case permission has been granted to make the order, including in relation to the detail of the obligations. It is, as always, a question of balance. Our view is that the Bill as drafted gets the balance right by requiring initial court permission to impose a TPIM notice other than in exceptional cases—which is the key initial decision made by the Home Secretary—while allowing the Secretary of State to make subsequent decisions but with an associated right of appeal to the court. We do not believe that the additional safeguards that my noble friend suggests are necessary. I therefore hope that she will accept they are not necessary. As I said, it is a question of balance. Such safeguards would not necessarily represent an effective use of the judge’s time.

What we propose is about right. I hope, therefore, that my noble friend will withdraw her amendment.

[Baroness Hamwee]

My Lords, again I must read what has been said, but I believe that I am satisfied and will remain so. I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

Amendments 27 to 32 not moved.

Clause 6 agreed.

Clause 7 agreed.

Schedule 2 : Urgent cases: reference to the court etc

Amendments 33 to 35 not moved.

Schedule 2 agreed.

Clause 8 : Directions hearing

Amendments 36 and 37 not moved.

Amendment 38

Moved by

[Lord Pannick]

38: Clause 8, page 4, line 26, at end insert—
“( ) Directions under subsection (5) must include a direction that the Secretary of State shall provide the individual on whom the measures are imposed with sufficient information about the allegations against him or her to enable him or her at the review hearing to give (if possible) effective instructions to his or her representatives and information to the special advocate in relation to those allegations.”

[Lord Pannick]

My Lords, I shall speak also to Amendment 49. These amendments concern the disclosure of information to a person who is the subject of a TPIM. As the Committee knows, in the AF case in 2009 the Appellate Committee of your Lordships' House considered what the principles of fairness require as to the disclosure of information in the context of control orders. I repeat my declaration of interest—I represented AF in the Appellate Committee.

The Law Lords decided that a control order is invalid as a matter of law unless sufficient of the case against the individual is disclosed to him so as to enable him to give instructions to his lawyers to answer the allegations against him. If the Home Secretary is not prepared to disclose that much, the control order cannot be maintained. Disclosure to the special advocate does not suffice, said the Law Lords, because the special advocate cannot of course disclose the information to the subject of the order and obtain a response from him.

In the recent Supreme Court case of Tariq v the Home Office, the noble and learned Lord, Lord Hope of Craighead, explained the principle of law at paragraph 81 of his judgment. He said that in AF,

“the fundamental rights of the individual were being severely restricted by the actions of the executive. Where issues such as that are at stake, the rule of law requires that the individual be given sufficient material to enable him to answer the case that is made against him by the state”.

The TPIM, like the control order, involves severe restrictions on the personal liberty of an individual. Therefore, a TPIM is going to be unlawful unless the AF principle is satisfied. This was addressed in today’s report of the Joint Committee on Human Rights. At paragraph 1.20, it addressed the Government’s argument that the AF disclosure obligation,

“does not necessarily apply to all TPIMs because some will not be sufficiently ‘stringent’ to engage Article 6”,

of the human rights convention. The Joint Committee points out:

“This is an argument that the Government has already made and lost”,

in the context of control orders,

“in relation to ‘light touch control orders’”.

The Joint Committee expressed the view, with which I agree, that the AF disclosure obligation applies in all TPIM cases, because they will all involve severe restrictions on personal liberty. I should add that if the TPIM is less stringent, it is likely to be because the subject of the order is not one of the most dangerous individuals and there will therefore be a weaker security argument for non-disclosure of the essence of the case against such an individual.

Disclosure to the individual of the case against him is not just required by law, but is also of enormous importance as a matter of principle. Your Lordships will recall our earlier debate when one of the reasons given by the noble Lord, Lord Carlile, in his objections to the proposal of the noble and learned Lord, Lord Lloyd of Berwick, that the imposition of the TPIM should be a judicial process, was precisely that the subject is protected by the important disclosure obligations that will be imposed on the Secretary of State. The noble Lord emphasised that.

Amendment 38 would require disclosure of the essence of the case against the individual at the directions hearing. Amendment 49 would make clear that the rules of court must provide for such disclosure.

I have two questions for the Minister. First, does he accept that the AF principle requiring disclosure of the essence of the case against the subject applies in the context of a TPIM, as it does in the context of a control order? Secondly, does he agree that it would be preferable for the matter to be stated in the Bill, to avoid the expensive, protracted litigation which will otherwise inevitably occur?

The Joint Committee's report, which I mentioned, gave its support at paragraphs 1.21 and 1.23 to my two amendments. The Joint Committee added the valuable point that the disclosure obligation should be at the earlier stage of the preliminary hearing, to ensure that the subject of the TPIM can instruct his lawyers—or indeed give information to the special advocate—before the directions hearing. The noble Baroness, Lady Hamwee, has tabled drafting amendments to my two amendments. I shall certainly want to consider them and the suggestion of the Joint Committee before Report but, for today's purposes, I welcome the opportunity to hear the Minister's response to my amendments. I beg to move.

Amendment 39 (to Amendment 38)

Moved by

[Baroness Hamwee]

39: Clause 8, line 5, leave out “(if possible)”

[Baroness Hamwee]

I absolutely support what the noble Lord, Lord Pannick, said. My amendments to both his amendments were partly in response to an earlier draft, which I think he changed before tabling them. However, the point remains the same: to tease out whether the words “if possible” are objective or subjective to the individual. I am not sure what “if possible” means in the context. I would certainly not want anything that the noble Lord has included to detract from the thrust of his important amendments and argument. I beg to move.

[Baroness Kennedy of The Shaws]

My Lords, I support the amendments in the name of the noble Lord, Lord Pannick. I disclose that I act from time to time in what have been control order cases and may be called on to act in future such cases. I reinforce the importance of having disclosure of the essence of the case. The reason for that is that from time to time I have seen that, when disclosure of the essence of the case takes place, it is possible to show that the inferences drawn from certain behaviour are not appropriate.

I give an example. The case involved a student living in a house with other students. We are always concerned that association can be an unfair way to judge someone. An assumption was made and disclosed in the essence of the case against him that a conspiratorial meeting took place at a particular time. It was possible for us to show that he must have been in his room using his computer because, during the period of the meeting, he was in direct contact with the department with which he was studying at university, drawing down the homework that he was required to do. Not only was the university able to confirm that but his computer, which was seized, showed that the timing coincided with when some others were involved in the meeting, when he was in his room studying. Just that allowed someone to show that an inference being drawn was incorrect.

Given that we are putting together a system which is in many ways a source of concern with regard to liberty, it is really important that opportunities are there for people to show that their actions are not the ones that the state is imagining. We must, in drawing up new proposals—some of which I am not completely happy with—draw on the decisions made by judges under the control order regime.

19:15

[Lord Carlile of Berriew]

I speak in support of the amendment moved by the noble Lord, Lord Pannick. As the lawyers here who are familiar with disclosure issues involving national security will be aware, there are a number of areas in which there has been a great deal of satellite litigation in cases on the issue of disclosure. I suggest to the Minister that a sound principle could be established here.

I suspect that the noble Lord, Lord Pannick, might agree that it is a principle that could be extended to resolve some of the other issues on disclosure that have arisen in cases such as Norwich Pharmacal, Carnduff v Rock—another civil case—the Tariq case and, of course, that of Binyam Mohamed, in which different issues about the level of disclosure that should be permitted have arisen in different contexts. One of those issues relates to the control principle: the control that a foreign intelligence agency exerts over intelligence material available in the United Kingdom. I hope that the noble Lord, Lord Pannick, agrees that reducing all those principles to statutory form would be of great assistance and would provide something that gets us lawyers out of work but increases certainty—that is, legal certainty.

[Lord Rosser]

My Lords, the amendments of the noble Lord, Lord Pannick, which, as he said, are supported by the recent Joint Committee on Human Rights report, require the provision of information to the individual on whom the measures under the Bill are imposed, to enable that individual at the review hearing to give effective instructions to his or her representatives and to the special advocate about the allegations made against them.

In considering this issue, we are also considering national security. We are conscious of the need to protect people from further atrocities of the kind we have already seen in this country and elsewhere. We are talking about a small number of people whose activities are felt to pose a real threat to the public, but in respect of whom sufficient hard evidence cannot be put before a court in the public domain to enable a case to be made to the standard that has to be achieved for a successful prosecution.

We would not dissent from the provision of information to the individual, provided that it did not lead to the safety or security of any providers or sources of information being put at risk; provided that it did not mean that intelligence provided—perhaps from other countries—dried up, because that intelligence is provided only on the basis that it is not made public; and provided that the provision of the information did not jeopardise national security, including protection from acts of terrorism.

The chairman of the Joint Committee on Human Rights stated:

“We maintain our view that the priority in the Bill should be investigation and not prevention”.

We certainly support the view that investigation is important and that, where possible, people should be charged and their case dealt with through the courts in the normal way. However, we do not support the view that the Bill should have prevention of acts of terrorism as an issue of lesser importance. We will want to be satisfied that the effect of the amendments would not be to veer in that direction. We await with interest to hear the Government's position, particularly in the light of the House of Lords judgment in AF.

[Lord Henley]

My Lords, the noble Lord, Lord Pannick, asked two questions: first, do we accept that the AF principle applies to TPIMs as well as to control orders? I can give him that assurance. It is set out in our Explanatory Notes that we believe that previous court judgments will be binding on TPIMs, as they were on control orders. I do not have the ability to cite cases as authoritatively as my noble friend Lord Carlile or the noble Lord, Lord Pannick, both of whom obviously eat them for breakfast, but my understanding is that they will continue to bind us.

The second question is: do we think that it is necessary to get it on the face of the Bill? I hope that I can explain to the noble Lord why I do not think that that is necessary. We share the desire of all noble Lords to ensure that TPIM proceedings are compatible with Article 6 and we believe that the provisions currently contained in the Bill achieve that. As we explained in our response to the Joint Committee on Human Rights in its 19 July report—I think that today’s was its third report on this issue—the right to a fair trial of individuals subject to a TPIM notice is already fully protected by the provisions contained in the TPIM Bill and the application of existing case law, as appropriate, by the courts.

Paragraph 5 of Schedule 4 to the Bill reflects the read down of the Prevention of Terrorism Act 2005, effected by the 2007 judgment of the Law Lords in MB. As the noble Lord will be aware, the Law Lords read into that legislation, which obliged the courts to ensure the withholding of material from the individual where disclosure would be contrary to public interest, the words,

“except where to do so would be incompatible with the right of the controlled person to a fair trial”.

That has been reflected in the provision in paragraph 5 of Schedule 4 to the TPIM Bill, which provides that nothing in the rule-making power relating to closed proceedings or the rules of court made under it is to be read as requiring the court to act in a manner inconsistent with Article 6. The Law Lords in AF (No.3) confirmed the read down specified in MB and laid down what was required by Article 6 in the context of the stringent control orders before them. There is therefore already provision in the Bill which ensures that TPIM proceedings will be conducted compatibly with the individual’s Article 6 rights and, indeed, the Human Rights Act achieves the same effect.

That is all that I want to say at this stage to the noble Lord’s amendment. I appreciate that technically we are debating the amendment to the amendment tabled by my noble friend Lady Hamwee. It might be more appropriate for the noble Lord, Lord Pannick, to comment on that. I hope that he will accept my explanation on why we do not think it is necessary to include his amendment. I hope that the assurances that I have given from the Dispatch Box will be sufficient. I hope that my noble friend and then the noble Lord will withdraw their amendments.

[Baroness Hamwee]

My Lords, I beg leave to withdraw my amendment.

Amendment 39 (to Amendment 38) withdrawn.

[Lord Pannick]

I am grateful to the Minister for his careful response and to all noble Lords who have spoken in this short debate. I agree with the observation of the noble Lord, Lord Carlile, on the need for certainty in this and allied areas of the law. With regard to the amendment of the noble Baroness, Lady Hamwee, to my amendment, by talking about “if possible” I intended to refer not to the possibility of disclosure but the possibility of the subject of the order providing an answer. I respectfully agree with the noble Baroness that it would be wiser to omit the words, “if possible” to avoid ambiguity.

This is a simple but vital issue. Should the Secretary of State be able to impose these restrictions on an individual without telling him why? It is not just a question of fairness. Nothing is more likely to undermine public confidence in a TPIM than for the Secretary of State to make such an order without telling people why. I am sorry that the noble Lord, Lord Rosser, on the Opposition Front Bench, is not yet persuaded to support my amendment. His position, as he articulated it, appears to be at odds with the ruling in AF which makes it very clear that the duty of disclosure applies irrespective of national security concerns. I am also sorry that I have not yet persuaded the Minister that this matter should be in the Bill. I am still concerned that on a matter as vital as this, it is not good enough simply for the Bill to state that Ministers must act in compliance with Article 6 of the European Convention on Human Rights, welcome though that is. It is desirable to address the question of disclosure, which has led to enormous quantities of litigation in the past and will inevitably lead to much more litigation in the future if we do not address the matter specifically. It is highly desirable that this matter is put into the Bill in clear, unambiguous terms. We will no doubt return to this matter on Report but for the moment, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

[Lord Wallace of Saltaire]

My Lords, it may be for the convenience of the Committee if I report that there has been agreement among the usual channels that we should continue until 8 o’clock, at which point we should have hit our target for tonight. That will enable what is intended as a 60-minute dinner-hour debate to become a 90- minute end-of-business debate, which I have calculated will allow all speakers an additional three minutes to the advisory time. I hope that that is acceptable. Those who have come in early for the debate may wish to go and stretch their legs for 15 or 20 minutes.

Amendment 40 not moved.

Clause 8 agreed.

Clause 9 : Review hearing

Amendments 41 to 43 not moved.

Debate on whether Clause 9 should stand part of the Bill.

[Lord Hunt of Kings Heath]

My Lords, I shall not detain the Committee long as we had a debate on this matter in the first grouping. Essentially, whatever our view of control orders, there is general agreement that the enhanced judicial scrutiny has been rigorous and the Government have said that such scrutiny will embrace the provisions in the Bill. The Constitution Committee has suggested that to put the matter beyond doubt, the Government should table an amendment to put the matter into the Bill. The noble Lord, Lord Henley, will no doubt have read today’s report of the Joint Committee on Human Rights, which endorses that point and says that the surest way to deliver the intense scrutiny that the Government say they intend is to write that explicitly into the Bill.

I doubt whether the noble Lord’s arguments have advanced considerably since he gave us the Government’s line about two hours ago, so I do not expect him to respond again to this point. All I would say is that I hope that between now and Report he might say that the Government will ponder this matter further.

19:30

[Lord Henley]

My Lords, I wish to make only one point. I said at the beginning of business that I had only recently seen the Joint Committee’s report, which was published at 11 am today, and I had not yet read it in detail. The noble Lord seemed to imply that I would have managed to read it during the course of this debate. For once, I thought it was more important to listen to the noble Lord, and other noble Lords, rather than reading the book. Of course, we will study the report in detail, and it might be that a further response can come between now and Report. I do not think that, as the noble Lord put it, our thoughts have advanced much during the previous two or three hours.

[Lord Hunt of Kings Heath]

My Lords, the noble Lord, who manages to make marmalade as well as being a senior Minister in this Government, is clearly multitasked and multiskilled. I had thought he would easily have been able to read it while considering how to reply to noble Lords, and indeed noble and learned Lords, in our debate. That has been, as usual, an enlightening response from the noble Lord. I will not oppose that this clause stand part of the Bill.

Clause 9 agreed.

Amendment 44 not moved.

Clauses 10 to 12 agreed.

Clause 13 : Revocation and revival of TPIM notices

Amendments 45 and 46 not moved.

Clause 13 agreed.

Clauses 14 and 15 agreed.

Schedule 3 : Appeals against convictions

Amendment 47

Moved by

[Baroness Hamwee]

47: Schedule 3, page 31, line 20, leave out paragraph 1

[Baroness Hamwee]

My Lords, I beg to move Amendment 47, and will speak also to Amendments 48 and 51.

Amendment 47 concerns paragraph 1 of Schedule 3, which deals with appeals against convictions for breaches of measures. My amendment is to enable me to ask the Minister why appeals are limited in this way. A breach of a measure may turn into a criminal offence, but that is a separate matter from the measure itself. If an individual is convicted of that breach, there are consequences for the future, as there are with every criminal offence.

The Minister may say that the measure itself will have consequences. Of course it will. That is executive action without a criminal standard of proof, and so on, as we have discussed. The consequences will be social consequences, in a wider sense. If there is a conviction for a breach, that has other consequences, because of the record of the individual. Therefore, Amendment 47 is to ask the Government to explain the thinking behind that paragraph.

Amendment 48 would take out subsections (1) and (2) to Clause 18. These are about appeals against the measure, and again the amendment is to enable me to ask questions. Clause 18(1) says that there may be an appeal only on a question of law. I would be grateful if the Minister could help the Committee on how one distinguishes between fact and law in this context. How does this apply not just to the decision that there should be a TPIM order but to the detail of the measure? Is proportionality, which we have been talking about quite a lot, a matter of law? I hope to be told that it is.

My final amendment in the group is Amendment 51, which relates to Clause 19. Clause 19 provides for the Secretary of State to make three-monthly reports to Parliament, which is welcome. Clause 19(2)(a) provides that this includes and extends to the powers of a Secretary of State “to impose measures”. I am suggesting that we should add wording that makes it clear that this covers not just the fact that a TPIM order has been imposed but the detail of the measures within that TPIM order. I appreciate that it would not be proper to put every detail into the public domain. However, I do think it would be proper for the Secretary of State to spell out the sort of thing that she is doing, so that we may understand—better than we can if we are simply told that measures are being applied—just what the impact of those measures may be. I beg to move.

[Lord Henley]

I hope I can answer the noble Baroness’s three points on these three separate amendments, which we are taking together. I shall start with Amendment 47, which deals with Schedule 3. As the noble Baroness is aware, Schedule 3 provides that an individual who has been convicted of the offence contained in Clause 23 of the Bill—contravening, without reasonable excuse, a measure imposed under a terrorism prevention and investigation measures notice—has a right of appeal against that conviction if the notice or relevant measure is subsequently quashed, and if they could not have been convicted had the quashing occurred before they were prosecuted. Schedule 3 provides that the court must allow such appeals. This is obviously not a provision that we expect to be used on a frequent basis. However, its clear purpose is to provide an important safeguard, and to ensure that the person will be able to get a conviction overturned for contravening a measure that the court has subsequently quashed.

It is therefore important that the schedule be agreed to. I know that the noble Baroness is only suggesting removing paragraph 1, but that is the operative provision of the schedule, and without it the remainder of the provisions in the schedule are neutered. I hope she therefore accepts my explanation and can withdraw that particular amendment.

Amendment 48 deals with subsections (1) and (2) of Clause 18 and is really a question about why we are considering having appeals only on a point of law. We believe that the limitation is appropriate, because in cases such as this it is the court of first instance that is the appropriate fact-finding body. It is this court that has developed a particular expertise and body of knowledge in this area of national security, among a small and experienced body of judges who hear these cases. This makes it the right court to review all the material upon which the Secretary of State relies to make her decisions and make findings on that basis.

With regard to the appeal on a point of law, the noble Baroness asked us whether we thought proportionality would be a point of law. Dare I say it—I might have to be corrected—but I think she is probably correct, and it probably would be. If I am wrong, I will correct that in due course. I will certainly write to her and copy that letter to other noble Lords who have taken an interest in these matters.

Finally, I turn to Amendment 51, which deals with Clause 19. Clause 19, as the noble Baroness is well aware, places a duty on the Secretary of State to report to Parliament on a quarterly basis on the exercise of her powers under this Bill. These are specifically the powers to impose measures on a person by TPIM notice, extend a TPIM notice, vary the measures specified in a TPIM notice, and revoke or revive a TPIM notice.

Amendment 51 would amend Clause 19(2)(a) to add “and the measures imposed” at the end of the subsection. The relevant provision would thus state that the requirement was for the Secretary of State to report on her powers to impose measures on an individual via a TPIM notice under Section 2, and the measures imposed. As noble Lords will appreciate, the details of the operation of the system and the particular cases will necessarily be sensitive and could not be disclosed publicly. However, taken together, the list of matters on which the Secretary of State must report ensures that key information about the operation of the system will be in the public domain, and will be debated regularly. Crucially, this will include information about the extent of the Secretary of State’s use of her powers and the number of cases in which measures are imposed.

We understand that there is interest in as much information as possible being made available about the operation of the system and about the cases of those individuals subject to the measures. That has certainly been the case in relation to control orders and it is likely to continue in relation to TPIMs. Having that information available will help to ensure that any debate about the powers is as informed as possible.

[Lord Hunt of Kings Heath]

Perhaps I may ask a question about that. The Minister said that the report laid by the Secretary of State would be as comprehensive as possible within the constraints of the information that she can make available. He then said that that could be regularly debated. As your Lordships know, there is a debate to be had next week on annual orders as opposed to a system of parliamentary scrutiny every five years. Does the Minister envisage other ways in which such information can be debated in Parliament?

[Lord Henley]

The ingenuity of the noble Lord and others will find ways in which this House, which seems to have a more liberal approach in these matters, can debate these quarterly reports. There are Questions, Questions for Short Debate and all range of things, but it is not necessarily for the Government to offer those. As regards the debate next week, I look forward to it.

I hope that that deals with the points made by my noble friend. If not, perhaps we can discuss it further in due course, but I hope that today she will feel able to withdraw her amendments.

[Baroness Hamwee]

My Lords, I am grateful for the reassurance on my Amendment 49, which takes a stand on a question of law in this context, and I hope that the Minister and I are correct. On Amendment 51, I accept the sensitivity of the detail, which I acknowledged in introducing the amendment. However, I remain concerned that the type and extent of the measures being imposed are reported on. The clause is welcome and I want to make it work well for Parliament and others in the transparency for which we are all aiming. I might therefore like to take the opportunity to discuss with the Minister how one can meet the point without going over the top, which I am not trying to do. I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

Schedule 3 agreed.

Clauses 16 and 17 agreed.

Clause 18 : Proceedings relating to measures

Amendment 48 not moved.

Clause 18 agreed.

Schedule 4 : Proceedings relating to terrorism prevention and investigation measures

Amendments 49 and 50 not moved.

Schedule 4 agreed.

Clause 19 : Reports on exercise of powers under Act

Amendment 51 not moved.

Clause 19 agreed.

19:45

Amendment 52

Moved by

[Baroness Hamwee]

52: After Clause 19, insert the following new Clause—
“Impact of measures
(1) Within 28 days after the imposition or variation of any measures, an assessment shall be made of the likely impact of the measures—
(a) on the individual on whom they are imposed, and(b) on the immediate family of the individual.(2) The assessment shall include an evaluation of the impact on mental health.
(3) Further assessments shall be made not less frequently than every three months and at the expiry, repeal or revocation of the measures, and thereafter during such period and at such intervals (but not more frequently than every six months) as the individual may request.
(4) The assessment shall be made by an independent person appointed by the Secretary of State who shall be appropriately qualified in conjunction with such persons as the individual may nominate and who shall be entitled to make separate reports.
(5) The costs of assessments made under this section shall be met by the Secretary of State.”

[Baroness Hamwee]

I shall speak also to Amendment 53. This would be a new clause dealing with a matter that I regard as of the utmost seriousness. It is addressed in particular to mental health issues.

The proposed new clause is by no means an opposition to mechanisms for addressing protection of the public and the prevention of terrorism. It is a separate issue about how measures are applied in practice and about the impact of those measures. I have mentioned the matter already today but it is important to repeat it as the context for the provision. It concerns in particular tipping the individual, his family and members of his community into the precise action that we are seeking to avoid; to avoid tipping an individual into breach of the restrictions on him, which is a criminal offence and may turn into a criminal someone who is not a criminal and has no criminal record; and to avoid our failure to recognise that at the centre of all this is a human being.

The moment my new clause was published I saw a drafting error, but I will speak to it as I intended it to be. It would provide for an assessment to be made on the likely impact—my drafting error is that I failed to refer to the actual impact—of the imposition of measures, or the variation of them on the individual and his immediate family every three months, when measures expire or are repealed or revoked, and thereafter at intervals which the individual may request. The assessment I talk of would include an evaluation of the impact on mental health. It should be made by an independent person appointed by the Secretary of State but not only by that person. I suggest that of course the person should be appropriately qualified, but shall work in conjunction with the nominees of the individual who can make separate reports. That is an important point because it is all too easy and obvious that independent experts appointed by the Secretary of State, as has happened with control orders, are perceived as agents of the Secretary of State being there to gather evidence and information.

I have proposed the new clause for the reasons I have already given and because one needs to increase the opportunity for transparency around this whole area. I have said that the costs should be met by the Secretary of State because I thought that someone might ask about that. It seems to me that the numbers of cases we are talking about are small and this would be entirely proper given that the measures applied are potentially so very stringent. Amendment 53 would bring these assessments within the remit of the independent reviewer.

The experience of control orders has been not only that in some cases they are very damaging but that the controlee is essentially broken. I want quickly to share with the Committee the story I heard earlier this week of a controlee who had failed to report to the police on time. I asked how late he had been and was told that it was one hour. His control order of course required him to report at a particular time and having failed to be there on time he was charged with a breach of his order. He found himself in Pentonville. The shocking part of the story is not just that: it is that the individual will not apply for bail. For him, being in Pentonville is preferable to being under a control order. That is what the state has done to some individuals. If that is what we are going to do to them in order to protect the rest of society, we should know what the impact is.

[Lord Hunt of Kings Heath]

I do not quite understand the noble Baroness. Presumably this person was in breach of the control order by not attending on time. I do not understand the issue.

[Baroness Hamwee]

The issue is that to this individual, being in prison is more acceptable than being in his place of residence under a control order, with the restrictions imposed by the system. I am sure that the noble Lord has heard, from people who had been under control orders that were quashed, the impact they had on them and their families. The interference with anything that any of us would recognise as a normal life has been literally intolerable. That is the point I make to the Committee. I beg to move.

[Lord Carlile of Berriew]

My Lords, I applaud and support the sentiment behind my noble friend's amendment, but I suggest that it is not only unnecessary but would replace a considerable amount of flexibility with something rather less. On the case history that she has just recounted, I say that nobody has been arrested and charged with breach of a control order for failing to turn up at a police station once, an hour late. In every case, there has been an immense degree of tolerance before anyone has been charged. It is only after a very serious breach, or persistent and repeated breaches, that people are charged.

Nor do I recognise the credibility of the account my noble friend was given. When I was the independent reviewer of terrorism legislation, on a relatively small number of occasions—but several—I was able to visit controlees in their own homes, alone, one to one. On some occasions I visited them in homes to which they had been relocated. The notion of a state-appointed psychiatrist, however independent, turning up unsolicited at their home would have been no more comforting than One Day in the Life of Ivan Denisovich. It is a pretty bad idea.

I ask the Minister to confirm that the following occurs and will occur. First, where there is any suspicion or indication of the poor mental health of the controlee or of any member of his or her family, medical facilities will be put in place, including, if necessary, psychiatrists and psychologists, to deal with the problem; and that such facilities will be flexible and will be provided at the cost of the Home Office. Secondly, will the Minister confirm that the Control Order Review Group has met regularly ever since control orders were brought in, that it includes various people involved in scrutinising and observing the person concerned, and that it has always discussed such issues where they have arisen? Will he further confirm that under TPIMs, some kind of review group—I hope it will not be called TPIMsORG —will continue to meet and carry out that function? There is no evidence whatever that controlees have been treated improperly in the way that my noble friend set out.

On one occasion I suggested to the Home Office that there were some difficulties from time to time in giving controlees a single point of contact—perhaps a local police officer—who was aware of the situation and whom they could telephone if they had a problem. I believe that that has been put right, that they do all have someone to contact, and that sympathetic consideration is given to all difficulties of the kind that my noble friend has in mind.

[Lord Henley]

My Lords, my noble friend has been consistent over the years in her concern about the impact of control order obligations on individuals and on their health, in particular on their mental health. My first point is that TPIM notices are intentionally more limited in nature than those that can be imposed under control orders. We will no longer have lengthy curfews, compulsory relocation to another part of the country and total bans on communication equipment. Therefore, whatever the result, one would hope that the effect on individuals would be less than under control orders.

Despite the limitations that should significantly reduce the impact on individuals subject to TPIMs, I appreciate that my noble friend remains concerned about these issues. I agree with my noble friend Lord Carlile that the amendment does not achieve what it sets out to do. The noble Lord put a series of questions to me about the current position and about what will be the position. He asked whether medical facilities would be provided by the Home Office for those with poor mental health. He then asked about the Control Order Review Group, and about whether something would follow it. He could not quite bring himself to work out the acronym, but no doubt something can be put in place that will have a similar role. I am sure that my noble friend asked those questions in a rhetorical manner and that he knows the answer certainly to the first two questions. Such things will be provided by the Home Office: CORG exists; and we will certainly consider something suitable to replace it in due course.

Although I cannot accept my noble friend’s amendments, I say that the Bill, together with the relevant control order case law and the duty of the Secretary of State to act within convention rights, already ensures that the Secretary of State will give the appropriate consideration to the impact of the measures on the individual and on their family, including the impact on their mental health, both before imposing a TPIM notice and during the year or however long it remains in force. With that, I hope that my noble friend will withdraw her amendment.

[Baroness Hamwee]

My Lords, I ought to take two minutes to withdraw the amendment—that might be obscure to anybody reading this—in order to take us to the agreed time of 8 pm. Of course I understand and accept that the measures proposed by the Bill are less severe than control orders. That is the point of the Bill. Not all of them are, because there is the possibility of enhanced TPIMs. I take the point, but it does not quite cover the ground.

I understand the point made by my noble friend Lord Carlile about a series of breaches. I talked earlier—I am not sure whether he was in his place—about the need not just for the Secretary of State to be reasonable about reporting requirements, but for police officers on the ground to be reasonable.

Of course, our experiences and what we hear are not the same, and I could never have the particular experience that he has had, but I hear of the danger of people who are under such orders becoming so despairing that they almost do not care if they breach.

The real thrust of this amendment is the importance of the involvement of professionals who are of the individual’s nomination, not just those who are provided by the Home Secretary. If I say “by the state” it may sound like One Day in the Life of Ivan Denisovich but I say “the state” quite deliberately because that is how it is perceived in this situation. My amendment suggests the formation of something akin to a case conference with the considerable involvement of an individual or organisation of the person’s choosing because of the interpretation or perception, which I suppose is inevitable in this situation, that anybody who is provided by the state is not going to be neutral, far less on the individual’s side. Having said that, I beg leave to withdraw the amendment.

Amendment 52 withdrawn.

House resumed.

Arrangement of Business

Wednesday 19th October 2011 Lords Chamber

Announcement

20:02

[Lord Wallace of Saltaire]

My Lords, the Question for Short Debate standing in the name of my noble friend Lord Lexden is now the last business for today. We have reached today’s target amendment for consideration on the Terrorism Prevention and Investigation Measures Bill and have adjourned the same until Wednesday next week. The consequence for those taking part in the QSD is as follows: speaking times for my noble friends Lord Lexden and Lord Shutt remain unaltered, but the speaking time for all other Peers taking part in the debate is now increased from six minutes to a maximum of 10 minutes.

Northern Ireland: Economy

Wednesday 19th October 2011 Lords Chamber

Question for Short Debate

20:02

Asked By

[Lord Lexden]

To ask Her Majesty’s Government how they will encourage the rebalancing of the Northern Ireland economy in order to stimulate private sector growth.

[Lord Lexden]

My Lords, I am immensely grateful to have been given this opportunity to raise an issue of the greatest importance, not just to Northern Ireland but to the United Kingdom as a whole. It is an issue which for many years inevitably yielded precedence and priority to the suppression of terrorism and to the protracted search for political stability. The most vivid memories of pain and suffering will long endure in your Lordships' House, adorned as it is by distinguished former Secretaries of State for Northern Ireland, by ex-Ministers who served with them and by leading figures from the Province itself. Thanks to their efforts, and to those of so many other people of good will, the security situation has been transformed and devolution successfully restored. This remarkable progress throws into sharper relief the issue—the third great issue in the Province's life—which is the subject of this evening's short debate: its economic future. Peace and political stability need economic progress as their third companion.

Since I have never held any public office connected with Northern Ireland, a brief autobiographical note might not be entirely misplaced. My interest in the Province was first aroused while I was at Cambridge by a former Westminster MP for South Belfast, Conolly Gage, whom Churchill had failed to persuade to take junior office in 1951. He was a staunch unionist with strong progressive views. Between 1970 and 1977, I taught history at Queen's University, Belfast, where I had the inestimable advantage of working with—indeed, sitting at the feet of—my noble friend Lord Bew, at whose bootlaces I continue to stare.

During the two years before his murder, I was Airey Neave’s political adviser. On the morning that he was killed in March 1979, we finalised the Northern Ireland section of the Conservative manifesto for the forthcoming election. “I wish we had more to say about the economy,” he remarked. There was just one sentence:

“We recognise that Northern Ireland's industry will continue to require government support”.

The words may have been few in number, but they heralded Thatcherite spending on a large scale, maintained unfailingly under successive Governments of both parties, to sustain Northern Ireland's economy during the troubled years that lay ahead by attracting inward investment, supporting the Province's precious small businesses and protecting its agriculture, which constitutes an important element of the Northern Ireland economy. Public spending per head was held at a level that was one-third greater than in the rest of the country.

Such measures were essential in those times, but they have not supplied the Province with the foundations for sustained economic prosperity in the generations that are to come. The long years in which Northern Ireland required significant support have left it in a position where public spending is equivalent to more than two-thirds of GDP. Taxpayers in Great Britain have been called on to a substantial extent; they now provide the resources for around half of all government spending in Northern Ireland. That surely gives them a powerful interest in the future of the Northern Ireland economy.

Despite high public spending, in no other region is so large a percentage of the population of working age economically inactive. Yet, in this same region entrepreneurs once built vast businesses that made the north of Ireland a leading industrial centre, part of a mighty web of enterprise that also embraced Glasgow and Liverpool and created the economic basis for Ulster's enduring political union with Great Britain. In 1894—I mentioned that I was a historian—the president of the Belfast Chamber of Commerce proudly boasted that the annual output of linen yarn in the north of Ireland,

“amounts to about 644,000,000 miles, making a thread which would encircle the world 25,000 times. If it could be used for a telephone wire it would give us six lines to the sun, and about 380 besides to the moon”.

I have no idea whether the great man's calculations were accurate, but this claim that Ulster's linen industry surpassed all others is incontestable.

Having achieved so much in the past, Northern Ireland can surely set out with confidence to re-establish a thriving private sector of significant size in a form suited to the conditions of the 21st century. That, of course, is the rebalancing to which my Question this evening refers. The absolute necessity of striving to achieve it has been fully recognised by the coalition Government. Indeed, it is one of their principal objectives set out in their programme agreed after the election. Last year's Budget spelt out the details: the process of rebalancing,

“will include examining proposals for economic enterprise zones, possible mechanisms for changing the corporation tax rate and other economic reform options”.

The case for such action is constantly on the lips of my right honourable friend the Secretary of State for Northern Ireland, who puts the arguments for it with brio and such dedication. Speaking at the Conservative Party conference a fortnight ago, he reviewed progress, reiterating once more that the Government's,

“task is to rebalance the economy by encouraging private enterprise and supporting entrepreneurs and new business ... Only last week the Chancellor announced changes to Air Passenger Duty to save our vital direct air link to the United States. We’ve also provided the Executive with the money to set up new enterprise zones”.

Here my right honourable friend touches on one of the preconditions of success in Northern Ireland; that is, effective partnership between the coalition Government and the Executive at Stormont. It is surely the duty of us all to encourage the Executive to play their full part in the work of partnership. Funds have been supplied to establish enterprise zones. Proposals are now awaited from the Executive. It is frankly disappointing that five months after the Northern Ireland elections the Executive have yet to produce a programme for government.

At the very centre of discussion about how the Northern Ireland economy can be rebalanced stands the question of introducing a rate of corporation tax in the Province substantially lower than that which now applies throughout the country. The proposal stirs some instinctive unionist scepticism. Those, such as Joe Chamberlain, who called for home rule all round—devolution for all four constituent parts of the United Kingdom—at the beginning of the 20th century believed in devolved institutions with equal powers. But what we have today is, in the current unlovely phrase, asymmetrical devolution with more power vested in some devolved institutions than in others.

In this context, should Northern Ireland have its own low rate of corporation tax, particularly since across its land border, the Republic of Ireland—a key competitor in many areas—has long been reaping the benefits of a 12.5 per cent rate? The issues were set out in a consultation document, Rebalancing the Northern Ireland Economy, published by the Treasury in March. The responses were numerous with business organisations and the five parties in the Northern Ireland Assembly all expressing strong support for change. A ministerial working group is now being set up to examine in detail the complex and technical matters that need to be addressed. My noble friend Lord Shutt will no doubt have something to say about it.

Like the rest of our country, Northern Ireland today needs jobs; that is, jobs in the private sector, jobs that will last, jobs in the industries of the future and jobs that will match the vast range of talent that exists in that wonderful Province. The highly regarded Northern Ireland reform group estimates that a corporation tax rate of 12.5 per cent could create as many as 90,000 new jobs over a 20-year period. Without new and fulfilling jobs for young people in particular, much of the Province’s great talent will leave and find employment elsewhere. Northern Ireland cannot afford such loss. That, above all, is why economic prosperity, springing from private sector growth, is essential to secure the vital third element of the full restoration of the Province’s fortunes after its long, dark years. That is why so many people believe that the case for a 12.5 per cent corporation tax rate is now so compelling.

20:13

Lord Brooke of Sutton Mandeville: My Lords, your Lordships’ House is in debt to my noble friend Lord Lexden for having obtained this Question for Short Debate slot and for his discrimination in choosing this topical subject. I emphasised the very rebalancing of this Motion in the speech that I made in your Lordships’ House in the debate which followed the final declaration of peace and the return of the Assembly. We should also congratulate him on the enchanting comprehensiveness of his introduction.

It is now nearly two decades since I gave up ministerial responsibilities in Northern Ireland, so I shall leave the corporation tax issue to others, including, retrospectively, my noble friend, who for understandable reasons maintain closer familiarity with the Province. That does not exculpate me for not having pursued it more vigorously when I did have ministerial responsibility. Perhaps since I came to Hillsborough direct from four years in the Treasury I had too much respect for its then rationale when, of course, the present level of devolution within the total realm was still a thing of the future.

I shall, however, briefly relate one telling and not irrelevant moment in the 1997-2001 Parliament, when I chaired the Select Committee on Northern Ireland affairs. We were engaged in a report on cross-border petrol smuggling between the Republic and Northern Ireland and were examining the then Treasury Minister responsible to Parliament for Customs and Excise. I asked the Minister to remind the committee of the Republic’s responsibilities under the Kyoto Protocol for carbon emissions. The Minister asked to be allowed to consult the accompanying Customs official and responded audibly, within the hearing of the committee, to the latter’s advice, with the words, “That can’t be true”, until appreciation sank in that the Republic enjoyed privileged treatment under the protocol as a non-industrial economy, whereas Northern Ireland’s treatment was as part of the United Kingdom. I do not blame the Minister’s Private Secretary for deleting the expostulated remark from the official record but it was an incidental insight into the precise extent of the Treasury’s understanding of the Province’s difficulties.

In my confidence that others will fully air the corporation tax dilemma, let me turn to personal experience of my own 50 years ago this autumn and look at the debate’s gravamen from the private sector’s end of the telescope. I realise that the debate is about Her Majesty’s Government’s encouragement but one of the ways in which the economy will be rebalanced is through entrepreneurial activity. Fifty years ago, I was the first head-hunter in the United Kingdom. I was the seventh consultant member of a small firm which had been established five years earlier in Chicago. I undertook to join it for a year to set up a new office in London, although I told the eponymous founder of the firm, who died in January of this year, that I had no idea whether there would be a responsive British Market; I had no idea whether I would be any good at it; and I had no idea whether I would enjoy it. In the event, we planted an acorn, we have harvested a forest—of course including subsequent competitors, some of which were started by our own people— and that firm is now the largest firm of its kind in the world to be still in private hands, which, in that industry, is exactly where it should be. It was on that firm’s business that I first visited Northern Ireland in 1963.

Why is that relevant to Northern Ireland today? I go back again to my time there as a Minister when anything that created private sector activity was of course a plus. I used to keep my eyes open for gaps in the economy where the Province was consuming products or services, however small, that it was not itself making. Where I needed to buy services, which I could have bought in England but which were available in the Province—my mind goes back to a fair amount of bookbinding; certainly, to a commemorative sampler; and, more grandly, to a fibreglass dingy for the Hillsborough Castle lake, which had then an island and a boathouse but no boat, that was baptised as the “Tom King” after my predecessor—I bought them out of my own pocket as a tiny contribution to the local economy. When there was no local product that I could buy, I made quiet inquiries as to why not.

We all know the skills base of the local economy. Today there is not time to tell the moral tale in the public sector of the Passport Office crisis at the beginning of the 1990s and the Province’s dramatic resolution of it—unlike Dr Watson’s remark about Sherlock Holmes and the Giant Rat of Sumatra, the world is ready for that story but we have no time. But it was a particularly vivid index of the Province’s superlatives.

I hope that out of this debate, whether through Her Majesty’s Government or the devolved Executive or even from an enterprising charity, will come an analysis of all the things that today the Province consumes but does not make or internally provide. I hope too that at least one person of 27, as I was 50 years ago, has the excitement of creating a business that creates a new industry or service—of course, there is nothing about being 27 that is mandatory—and that there will emerge from the analysis a whole raft of opportunities. Anything that Her Majesty’s Government do in the mean time to favour the entrepreneurial spirit will be a bonus and to be welcomed the more in the Province.

Finally, as to the public sector, I remind your Lordships’ House of Lenin’s doctor, the Armenian Armand Hammer, to whom Lenin offered a monopoly of a single product in the new Utopia. Dr Hammer, who could recognise a bureaucracy when he saw one, chose pencils, and from that acorn grew Occidental Petroleum.

20:20

[Lord Alderdice]

My Lords, I am grateful to and congratulate my noble friend Lord Lexden on obtaining this debate on rebalancing the economy of Northern Ireland, which is a challenge. The value of this debate in your Lordships’ House is that we are not under any compulsion to do other than try to explore the questions honestly and in a fashion that might be helpful to Her Majesty’s Government in fulfilling their responsibilities in relation to the Province.

I note that in chapter 2 of the book that launched the consultation there is a list of some of the strengths of the Northern Ireland economy: a relatively young population, high quality education and training, persistently competitive labour costs, a flexible and responsive skills system, a track record of attracting inward investment, 100 per cent broadband coverage, good transport links, a relatively low crime rate, strong tourism potential and so on. That list, more or less, is one that many of us in Northern Ireland are familiar with because we have spent a good deal of our lives trying to use lists of this kind to sell Northern Ireland to other places. Indeed, it is not hard to be convinced that we have these great strengths and potential. Some noble Lords have laboured for some years in Belfast City Hall. It is hard to inhabit such a building and not feel a sense of confidence and pride in a city that could produce something of that kind for its main building. It is an acknowledgment of the strength of the local economy at the time. Belfast is the city that produced and launched the “Titanic”, and we still produce T-shirts that say, “She was all right when she left us”. There is a great sense of pride in these things, and anyone who in the great days of the shipyards stood in one of the hulks that were being produced—cathedrals of engineering—could not but get a lump in his throat and feel a sense of pride about living in a place that could make such extraordinary products.

But it is important not to inhale when dealing with your own propaganda and to recognise that, although there are great strengths in Northern Ireland, our problems with the economy did not all come from the Troubles. Of course we had great strengths at the end of the 19th and the beginning of the 20th centuries when we were a central feature of an empire that spanned the world, and with all sorts of economic differences from the world in which we now live. It was also the case that many of those who laboured long and hard in the shipyards, the linen mills and other industrial aspects knew very poor circumstances in terms of their own health and welfare. That was one of the reasons we were successful too.

The truth is that after partition in the early 20th century, when the world moved into depression and we did too, it became increasingly difficult to sustain a Northern Ireland economy that was independent in terms of its own taxation and economic strength. As the 20th century moved on, it became even more difficult for our industries to be competitive, and long before the Troubles broke out we were in very substantial difficulties and already needed support from the rest of the UK economy. There was a certain amount of optimism in the 1960s when Brian Faulkner was Minister of Commerce. He certainly brought a degree of energy, enthusiasm and a sense of optimism that there were new possibilities, and it is not at all clear how things would have gone had he been able to remain in post, the Troubles had not happened, and so on. But if we stare long and hard at the reality we quickly come to the conclusion that we could not assume that, without the Troubles and all that came with them, everything would have been well in the Northern Ireland economy.

The Troubles added to our problems in two ways. First, they chased away business, whether internally or through inward investment. Who would want to invest in a country that was at war with itself? But there was another almost insidious way in which our economy was damaged, and that was through the sustenance that was necessary from the British Government and the British Treasury to maintain some cohesion in the community, ensure that public services were delivered, and that security did not suffer any more than was absolutely necessary. What that did over two generations was to produce a population in Northern Ireland that was extraordinarily dependent on the public sector and public expenditure. It is not just that it was the case in practice; it was a culture that was espoused and adopted—it was taken into the whole community.

When my noble friend talked about “jobs, jobs, jobs”, as he quite rightly did, the problem with the phrase is that there is an assumption that it is up to the Government or someone else to provide us with those jobs, whereas actually what we want is a community that sees itself taking the initiative in order to provide its own wealth creation. I am afraid that I found it enormously difficult in east Belfast—a community that would like to live with the myth of an enthusiastic, entrepreneurial and largely unionist population—to persuade local people to start up their own businesses and try to create wealth for themselves. It was always a question of being dependent on the Government doing something or someone else providing the jobs.

The reason I mention this is not because I am particularly sceptical about any of the proposals around. My noble friend mentioned the corporation tax proposal, which seems to me to be a potentially substantial jolt. It is not going to be a requirement that the Northern Ireland Executive should institute a particular level of corporation tax. The challenge is this: are you prepared to take on board this opportunity? I hear in Scotland, for example, all sorts of talk about wanting the power to set corporation tax, but the Government there are not even implementing the capacity they already have to raise income tax, should they choose to do so. It makes me wonder whether what is in truth required there is a serious economic power or whether it is a political game being played for wholly other reasons. But the possibility that people would take responsibility for something as large as corporation tax, or perhaps more modestly, aircraft passenger duty, is to say to our local elected Assembly and Northern Ireland Executive, “You now have the responsibility as well as the power to do some of the things that are necessary to make a change. Are you up for it?”. That, in a sense, is the question that I come back to my noble friend with because, as has already been said, some months on from the election to the Assembly and the establishment of the Northern Ireland Executive, the plan is not at all clear.

No one went into the election in Northern Ireland in any great doubt as to which would be the major parties of government or who were likely to be the First and Deputy First Ministers. When an election was held in the United Kingdom as a whole and the largely unexpected outcome—at least in some circles—of a coalition came into being, it took only a few days to put together a coalition agreement. One might be critical or otherwise of it, but the fact is that it took only a few days—and there was no clarity before the election that there would be that kind of an outcome. In Northern Ireland, it was absolutely clear what the outcome would be, and months later we still do not have the kind of plan that is necessary to take the country forward. Although the question of corporation tax and other fiscal freedoms is important, and although it is true that we have great strengths and possibilities, we have two major problems. One is the fact that our peripheral position and our previous dependence on heavy engineering and other aspects of the economy are disadvantages, and we have a cultural disadvantage in that we have become an institutionalised, dependent economy which is much more difficult to get out of because it needs a change in people’s mindset.

But I come back to the fact that there are strengths. We have two universities and relationships with other universities that produce ideas and the possibility that those ideas could be productive and help to build up and strengthen our economy. It is also true that, even now, many of our most creative young people find themselves having to leave Northern Ireland rather than be able to stay and develop their skills in order to build our economy. If there are things we can do to help nudge—perhaps it requires more than a nudge; perhaps it requires a really substantial push—those who now have the responsibility for Northern Ireland to take that responsibility seriously for the development and rebalancing of the economy, and if this debate contributes to that, I think we will have done a worthwhile job and made a contribution.

20:29

[Lord Bew]

My Lords, I thank the noble Lord, Lord Lexden, for securing this important debate on the need to rebalance the Northern Ireland economy. I would also like thank him for his very kind words about me, but to say one thing: he misrepresents the flow of intellectual influence. When the noble Lord, Lord Lexden, was an academic at Queen’s University Belfast in the 1970s, he with Professor John Vincent wrote a book called Governing Passion. For my generation of graduate students, it was a powerful and exciting book that had a huge impact on the way we wrote about politics. I therefore put it on the record that the flow of intellectual influence went that way.

It is important not only to thank the noble Lord, Lord Lexden, for securing this debate but to draw attention to the fact that we have had, at least in the past year or so since the change of Government, a more intense debate about the Northern Ireland economy. Whatever the merits or demerits of the argument about corporation tax, to which I shall come in a minute, it is important that we have had the beginnings of a serious discussion. It has inevitably been delayed because of the whole question of the Troubles and the recovery from them, and the domination of public debate by the need to find a secure settlement.

When the issue of corporation tax first entered the public domain as a crucial subject, my own reaction was initially quite sceptical. I always thought that it was good that we were talking about it because at least we were talking about the need to rebalance the Northern Ireland economy, at least it was a new idea, and at least it was focusing public debate on an economic question. None the less, I was sceptical, and the noble Lord, Lord Lexden, has already referred to part of the reason for it: you could reasonably argue that unionism in the past century had one idea that really worked. That one idea was equality of taxation means equality of services and good things flowing from the London Treasury in return. This was Edward Carson’s idea. It is why, for example, before Irish independence he always supported vigorously in this House expenditure of money by the British state on the west of Ireland. Those of us who know the west of Ireland know that some of the public amenities that you can find there and in the ports are a product of decisions made by the British Treasury before 1916 and 1921. It has always been a logical idea that a unitary state implies a unitary taxation system and a unitary flow of benefits to the citizens in return throughout its regions. That was the ground for my scepticism.

Now that we exist in a different world with devolution in the United Kingdom, there is much conversation about the possibility of the devolved systems having different taxation regimes. It seems widely considered to be entirely compatible with the continuation of the union that one has taxation regimes that are not as simple and uniform as those with which I grew up. There is therefore an argument on that score that uniformity may not as be as important as many people considered it to be in the last century.

There is another simple point: Northern Ireland does not do too badly with foreign direct investment—it actually does better than the other regions of the United Kingdom. It has major problems with the productivity of workers and of the culture, which has been so admirably described in its historical evolution by the noble Lord, Lord Alderdice, but it does better than other regions of the United Kingdom for FDI.

I began to wonder even so whether it was right that we should talk so much about corporation tax. I looked at the companies that went to the Republic of Ireland, which is obviously Northern Ireland’s major competitor. Many companies, it is argued, go there primarily because of the low level of corporation tax, but most of those companies do not say that. They tend to put it low on their list of reasons for moving to the Republic of Ireland—there was recently a case of a company that was considering Derry but went to Kerry. Companies do not say that corporation tax is the reason; they tend to put it at about number five on their list of reasons. Being a credulous sort of person, I tend to believe them.

But this is where my mind begins to change on this topic; I have begun to rethink. I am not convinced that companies tell us the full truth about their decision-making in this matter. I give an example that has struck home to me in the past 18 months watching the public debate in the Irish Republic. It brings home some of the difficulties for Northern Ireland. Google along with a number of other American companies about 18 months ago began to criticise the educational system in the Irish Republic, saying, “It is not as good as you think it is and this is a problem for us”. The then Irish Minister of Education, Mr Batt O’Keeffe, immediately responded and took these criticisms quite seriously. The new Minister, Ruairi Quinn, has said in a memorable but graphic phrase, “We have been codding ourselves about the quality of our educational system”. The concerns of the American companies were highlighted by a number of international reports that seemed to show that Ireland was sliding down, particularly on the mathematical side. There are great concerns, for example, about the quality of maths in Irish schools now. This crisis has been brilliantly covered by Sean Flynn, the education correspondent of the Irish Times, in a series of magnificent articles. At the turn of the year, he described 2010 as a very bad year for Irish education.

However, in the past few weeks, Google, one of the leading companies making this criticism of the education system, has announced that it is going to Dublin and not to Belfast, which was also a bidder, for a major new investment. So it turns out that you can believe that a society has significant defects in its educational system that create problems for such American companies with what they are looking for in their workforce, but they still, oddly enough, end up in the place with the best tax regime. That is what has made me cynical about the reasons given by companies for acting as they do. Details of that sort enhance the case for corporation tax reform for the benefit of Northern Ireland.

I understand that it is possible that this issue may be stuck. The Treasury has objected, as have a number of very serious economists. There are complications around the issue that are nothing to do with Northern Ireland’s place in the United Kingdom but a lot to do with Scotland and what Scotland wants to do, as has already been alluded to by the noble Lord, Lord Alderdice. If the Treasury is going to say no and if the public argument is going to go against the case for corporation tax, which has been made eloquently by many Northern Irish politicians of all parties and by the Secretary of State, Owen Paterson, we have the problems as outlined by the noble Lord, Lord Alderdice. We have the problem of a dependency culture that relies on the state and the Treasury, for reasons that are not the fault of the people of Northern Ireland. What, then, is going to be done? There is perhaps one slight hope: that an unintended consequence of the changes in university fees and the system in operation in the United Kingdom might be that some of the talent that currently goes to English and Scottish universities will stay in Northern Ireland, which might in turn turn out to be a very useful development for the economy.

I understand and respect the arguments of the Treasury going back to the Varney report, which was a serious document, but if the answer is going to be no, the question must be: what else are we going to do? At this point, I am not hearing much else.

20:39

[Lord Black of Brentwood]

My Lords, I join others in congratulating my noble friend Lord Lexden on securing this debate. I know from my long association with him that there is no greater or more eloquent champion of the people of Northern Ireland, its history and heritage, and the opportunities for its future than my noble friend, as has been evident today in his choice of debate and the passion of his remarks.

Economic issues are perhaps of more significant importance in Northern Ireland today than almost anywhere else in the United Kingdom. I would like to speak about one small but crucial sector of Northern Ireland’s economy—its creative industries. As the media play a role in that I should declare an interest as a director of the Telegraph Media Group. The creative economy is important not only because of the private sector jobs it can create and the investment it brings, but because it is so often at the very cusp of the public/private divide that is the defining characteristic of the Northern Ireland economy, which we are discussing this evening. As such, the creative economy could and should have a vital role to play in rebalancing the economy of the Province.

Northern Ireland is already home to a lively cultural sector, employing, according to the Northern Ireland Executive, some 36,000 people, and there are many success stories to tell—such as the emerging film and TV production centre, with Northern Ireland being used as a base for filming major productions such as HBO’s “Game of Thrones” and Universal’s “Your Highness”. Northern Ireland Screen’s target is for direct, achievable, levered investment in the Northern Ireland economy of £112 million from screen production activities between 2010 and 2014.

Northern Ireland has a long-standing musical heritage. Indeed, Belfast will be hosting the MTV European Music Awards on 6 November.

It also has a vibrant newspaper industry, with over 50 publications throughout the Province. Papers such as the Tyrone Courier have even beaten UK-wide circulation trends. This publication is believed to have doubled its readership in the past 10 years by focusing on key community issues.

But there are some serious economic issues ahead in this sector. For understandable reasons, there have been cuts to the Creative Industry Innovation Fund, which helps leverage investment in the cultural economy. Perhaps more worryingly, there seems to be little strategic thinking by the Northern Ireland Executive about how to develop infrastructure for the creative industries and allow them to play their part in economic regeneration. The Northern Ireland Programme for Government for 2007 to 2011 made scant reference to this sector. I hope the next one, when it appears, will remedy that.

The newspaper sector is facing particular challenges. In recent years its workforce, according to Skillset, has shrunk to around 1,000 people, and the workforce of the publishing sector as a whole has halved. There are serious commercial question marks hanging over the viability of some of the Province's smaller local newspapers, themselves a vital part of Northern Ireland’s civic tapestry.

One of the key problems is the change that is taking place in the public sector, ironically enough. Fewer public sector jobs has meant reduction in public sector recruitment advertising, which accounts for some 70 per cent of the recruitment revenues on some newspapers. The depressed property market, which is probably more stressed in Northern Ireland than anywhere else in the United Kingdom, has had a similar impact on classified advertising revenues. These pressures come at a time when, ironically, weekly newspapers in Northern Ireland are often at the centre of boosting the Province's private sector businesses, while initiatives such as the Newspaper Society's local business accelerators campaign, launched only today and welcomed by the Prime Minister, can play an important part. It is an excellent initiative. Papers such as the Banbridge Leader and the Dromore Leader and the Mid Ulster Mail and Tyrone Times have launched successful business awards, highlighting the strength of local SMEs and the resilience of larger businesses.

A number of things can be done to help strengthen the creative economy—the jobs it supports and the investment it brings, as well as the vital part it plays in the cultural life of Northern Ireland—as the economy is rebalanced.

First, it is vital that we do what we can to help the Province's newspaper industry. There are continuing concerns about the threat to statutory public notices in newspapers, a key source of income as well as an essential tool for members of the public and community groups to find out about public events and developments in their area. Already local council public notice advertising spend is down 37 per cent in Northern Ireland, which is hitting newspapers hard and opening up a democratic deficit. Further reductions would be intolerable.

Secondly, I welcome what the Government are doing to help publishers in Northern Ireland, as elsewhere, diversify their businesses. The Government are planning three local TV stations in Northern Ireland and there was considerable interest in the recent visit of the Secretary of State for Culture Media and Sport to promote those plans, which can help the media in Northern Ireland expand beyond print and offer cross-selling of advertising packages across the full range of media—newspapers, TV, radio and Internet.

It is however vital that the UK regulatory regime recognises the realities of today's highly competitive local media markets, allows greater flexibility over media mergers and acquisitions and does not continue to block small, family-owned newspaper publishers from developing and growing their businesses in the deeply troubling way that happened only this week in a proposed merger relating to the Kent Messenger Group and Northcliffe Media.

Thirdly, there are significant opportunities to begin, through heritage-led regeneration, to build hubs of creative industries that will help promote private sector investment and jobs. Such regeneration can be a great catalyst for private sector growth in areas of major deprivation—for instance around the Carlisle Memorial Church and the Crumlin Road Gaol and Courthouse in North Belfast. This is a focus for the valuable work of the Belfast Buildings Preservation Trust, which I strongly commend. The trust, along with the Northern Ireland Design Alliance, is seeking to use the creativity that is the driving force of this sector to help in the delicate task of rebalancing economic structure and policy in Northern Ireland. This will also help the heritage-based industry, in particular, to forge new links with EU member states and with the United States of America, countries with which there has traditionally been little engagement in this sector and, as a result, lost opportunities for private sector investment.

Another significant opportunity is the BBC's decision to move programme and production responsibility outside of London. Speaking last week at the Belfast Media Festival, director general Mark Thompson spoke of his hope that BBC Northern Ireland would become a “fully-fledged creative hub”. That will contribute not only to national network programming but, provided the BBC opens its arms to the private sector rather than acting as a publicly funded competitor, it can create another unrivalled opportunity to promote the economic rebalancing that is central to this debate.

In all these areas, policy needs to be developed to encourage relevant new skills, to help in the creation of new economic hubs, to support risk-taking and a creative approach to regeneration, and, above all, to provide leadership in a sector where this has traditionally been in short supply. In that way, the richness of Northern Ireland's cultural sector—its music and performing arts, its screen and TV potential, its newspaper publishing industry and new media and its heritage and built environment—can play a long-term role in attracting private sector investment and new jobs and, at the same time, enhancing the quality of life and of enjoyment of people throughout the Province.

20:48

[Lord Empey]

My Lords, like others, I thank the noble Lord, Lord Lexden, for securing this debate. One interesting point that has not yet been made is that this debate is about rebalancing the economy of Northern Ireland. It is not about the latest security atrocity or terrorism—something that we have been living with for so long—but how the economy can be improved. It is about time that we looked at this issue. At the end of the day, rebalancing and strengthening the economy is one of the tools that we can use to prevent further outbreaks of terrorism and maintain the isolation of those who are prepared to take up arms against the democratic wishes of the people. The noble Lord, Lord Lexden, has done a twin service in securing the debate.

I, too, am interested in the decisions on air passenger duty. The Treasury announced the formal process yesterday and of course there will be negotiations with the Northern Ireland Executive. It will not be a for-nothing negotiation on behalf of the Executive. They will probably find that, just as the same principle will apply to corporation tax, the loss of revenue will eventually come out of the block grant. Having been involved at the start of the route development fund in about 2000 or 2001 which helped us to secure the transatlantic service, I am obviously anxious to see it maintained. Only a year or so ago, we got the New York Stock Exchange to set up in Northern Ireland. What kind of message are we sending them if we suddenly say we are stopping the very aircraft that gets them to and from their headquarters? We want to remember, going back 10 years, that we had one international flight out of Northern Ireland. It went to Amsterdam. We are now competing with air passenger duty in Dublin of €3. The Executive will have to take the decision that is necessary to make up the shortfall in funding.

One sector that sometimes gets left behind is the agri-food sector. At present, it accounts for some 20 per cent of Northern Ireland private sector employment. Everybody had been saying that financial, hi-tech or IT services were the solution. The dotcom bubble burst, then the financial services bubble burst. Throughout the bad days after the crash in 2008, the agri-food sector and the land-based industries, which are a much greater proportion of the Northern Ireland economy than in the United Kingdom as a whole, kept on steadily going. Invest NI, which I had some part in creating, had taken a view in recent years that it would concentrate its activity on jobs that produced salaries of £25,000 a year or more. In most cases, the agri-food sector did not come across that. The average salary there is currently some £20,000 to £22,000. However, in light of current circumstances and given the plans that the Irish Republic has announced to grow its food sector by 40 per cent by 2020—Scotland has also announced that it intends to grow its food sector—if we were to do the same thing it would have a dramatic effect, creating between 7,000 and 8,000 jobs directly and a significant number in addition.

Given the circumstances that the world finds itself in, being a significant provider of food is not a bad place to be. In the current circumstances, while I accept the need for high-value-added jobs, we have to be more realistic in the current labour market and economic situation. I would be inclined to give significant support by having a major plan to develop the agri-food sector, not only on the food processing side but particularly in research. There is a lot of research money in Europe. We get just about—and no more—our share of it. I strongly urge the Executive to pursue this because we can collectively achieve a lot more by doing so.

Much has been said about corporation tax. I am not going to rehearse the arguments. I regard it as only one of a whole series of tools. I support the idea—I have always done so—but there is no silver bullet that will fix the problem. I know from my own experience on the skills side that, as a United Kingdom, there is still in excess of one-fifth of our population that is not adequately literate. Northern Ireland is actually slightly better off than the rest of the UK in that regard, but what a statistic for a country that prides itself on being one of the top economies of the world.

We saw the social problems in the summer during the riots. The common denominator by and large, with some exceptions, was the absence of basic skills. When we translate all of that back to Northern Ireland—the noble Lord, Lord Alderdice, made a number of very important points about the culture—we might say that people have been bred up on the benefits system. That is not where their natural home is, but to get away from it, when you add all the benefits—free school uniforms, dentistry, healthcare, opticians and so on—you would need nearly a bank manager’s wages to make it worth your while to work.

Given the combination of that with the lack of opportunity, what do we expect people to do? They have to put food on the table somehow, so it is up to us, in rebalancing the economy, to get the message across. I have been in the middle of Stormont for years, and have seen how the carve-up happens at the table whenever the money from London is put on there—everybody grabs their bit and that is the way it works. We have to realise that that endless flow that we have seen for many years is no longer endless and it will get progressively less. That is an inevitability as the economy of the United Kingdom faces up to the fact that we talk about deficit reduction but in fact we have structural debt and all sorts of debt, and it is going to take a generation to clear it. Northern Ireland is not going to be able to rely on very substantial amounts of public expenditure to survive.

Therefore, I entirely support the comments of the noble Lord, Lord Black. I believe very strongly in the creative industries. There is tremendous potential and we have some wonderful talent. Look at our golf. We have huge opportunities there to exploit that from a tourist point of view and in other ways. What other small province in the world could have produced so many talented people in such a short time? It is statistically almost impossible but we have done it. When we add in our land-based industries and our experience in food production, in those three areas alone there is potential for significant growth.

It is depressing in the current circumstances to see youth unemployment in particular rising, but I retain residual optimism that ultimately the entrepreneurial spirit and indeed the genes that were in the economic life of this part of the United Kingdom can be revitalised. It is a matter of concern that so far into the new Assembly progress has not been made. I know how hard it is to produce these programmes for government. It is a very tiresome process, but at the end of the day if we do not get on quickly, we are not giving the right leadership to the industry that is so necessary for our future prosperity.

20:57

[Lord Kilclooney]

My Lords, I should like to fill the gap—I was not aware of this debate until today, unfortunately. I congratulate the noble Lord, Lord Lexden, on having this debate. As the noble Lord, Lord Empey, says, the great news is that we are discussing the economy of Northern Ireland and not the security situation.

I declare an interest as chairman of the largest newspaper group in Northern Ireland and the Republic of Ireland, employing some 300 people, so I know something of the problems of business in both parts of that island. I am delighted to hear the noble Lord, Lord Black, mentioning the Tyrone Courier and certainly he will be well reported in the Tyrone Courier next week because it is the largest weekly newspaper in Northern Ireland. One thing I disagree with him about is that he says the small papers are in trouble. No way—small papers are succeeding. We have the largest circulation in Northern Ireland, with 75,000; the big papers, like the Belfast Telegraph, are down to 50,000. The weekly papers are succeeding; the daily papers are in decline right throughout the United Kingdom—so be careful at the Telegraph!

The noble Lord, Lord Lexden, said that devolution was successful. I was deputy leader of the Ulster Unionist Party at that time with the noble Lords, Lord Empey and Lord Trimble. We negotiated the Belfast agreement. To say it is successful is going a bit far. I am more inclined to agree with the present Secretary of State for Northern Ireland in his speech in Manchester a few weeks ago when he said it is getting to the time when they have got to make decisions. People in Northern Ireland are losing respect for the Northern Ireland Assembly, and if it collapses then the gap is filled by terrorism yet again. It is important that decisions are made.

Look at the decisions that have been missed. We mentioned golf; the great international football pitch—no decision; the extension of Belfast City Airport—no decision. The replacement of the 11-plus—abolished; now we have three 11-pluses.

[Lord Empey]

Five.

[Lord Kilclooney]

Well, there is one for integrated schools, one for Roman Catholic schools and one for state voluntary schools, which is amazing. On John Lewis’s planning application at Lisburn, there is no decision. There are no decisions being made and sooner or later the public in Northern Ireland will catch on, which will be very bad news there. As far as devolution is concerned, we should place on record our appreciation of the work of Senator George Mitchell, who some of us were with on Monday evening at King's College, and our thanks to the former Prime Minister, the right honourable Tony Blair. He is criticised very much these days in the media but we should place on record our appreciation of the time and effort he gave to bring devolution.

The noble Lord, Lord Lexden, said that GB taxpayers are subsidising Northern Ireland. He forgot to mention places called Scotland and Wales, and other parts of England. They are getting subsidised as well. We are actually quite successful now. We are not the poorest part of the United Kingdom any longer. Wales is—check the figures. Our unemployment in Northern Ireland is now less than the UK average. We have statistics to show that Northern Ireland is progressing and we should not always be on the back foot, trying to say that things are bad there.

I come to the issue of corporation tax. I have always been critical of the Northern Ireland Secretary of State in his campaign to have a lower level of corporation tax in Northern Ireland. If you look at the PwC accountants’ report on what attracts an investment, corporation tax is number 10 in the priorities —not number one but number 10. I know that from my experience in business in both Northern Ireland and the Republic. Other things come into account: national insurance contributions; other forms of taxation; education—there was some criticism of that this evening—and labour costs. The noble Lord, Lord Bew, mentioned Google but he did not happen to mention Dell, which left Limerick in the Republic of Ireland. Why? Was it the 12.5 per cent corporation tax? It stayed in the European Union and went to Poland, with its 19 per cent corporation tax, because that tax is not the main factor in deciding how you develop a business. There are many other issues: read the papers tomorrow and see what Aviva has announced in the Republic of Ireland today.

I am going to be told that my time is up. All I can say in closing is that, as a Unionist, I believe in equality of services, equality of taxation and equality of responsibilities.

21:02

[Baroness Smith of Basildon]

My Lords, this has been a stimulating and, I hope, a very valuable debate for the Government. As the noble Lord, Lord Empey, said, the significance of debating the economy is one that your Lordships' House should be proud of. I congratulate the noble Lord, Lord Lexden, not only on his choice of debate, which has given us the opportunity to debate extraordinarily important issues this evening, but on the way in which he introduced the debate. I think your Lordships' House will be very grateful to him for doing so.

The comments made by the noble Lord, Lord Alderdice, at the beginning of his contribution were very appropriate. He talked about the purpose of tonight’s debate, which is to help assist the Government in what is a difficult decision to make: how to rebalance and grow the Northern Ireland economy. It is a debate that, as we have heard tonight, cannot be taken in isolation because the economy of Northern Ireland is inseparable from what has occurred politically, socially and security-wise over 30 years. We recognise that there is higher per capita public spending in Northern Ireland and understand that the Government want to see the level of public spending reduced more quickly there. We all want to see a stronger and more resilient economy, because nothing causes public concern and dissent faster than rising unemployment, the fear of unemployment and poor public—and indeed private—services.

After decades of underinvestment in key services—although not for a lack of spending, as there were very high costs associated with policing and security—there is a real need for public services to improve and be more efficient. Your Lordships' House has to understand that there are special reasons why public spending in Northern Ireland remains higher, and it was clear from the debate tonight that it does. That backlog of underinvestment did not disappear with the Good Friday agreement or the establishment of the Northern Ireland Executive.

I entirely agree with the objectives of improving the economy, attracting private sector investment and improving skills, as the noble Lord, Lord Empey, said. As noble Lords have said, this has to be done in several ways. A reduction in the level of corporation tax is the main argument put forward in the document on rebalancing the economy. However, I do not see bringing the rate of corporation tax down to 12.5 per cent, in line with the Republic, as a silver bullet. It was Kate Barker who first commented on this in her Economic Advisory Group report. She reported that if a reduction in corporation tax were to be introduced, it would have to be alongside other measures to rebuild the economy. I am not sure whether Kate Barker at that time considered it alongside the reduction in the block grant; I think that came from the Azores judgment. However, we need to look at the other side of the equation and at further cuts in the block grant.

The Northern Ireland Executive are already having to make savings and efficiencies following the cut of £4 billion to £5 billion over the next four years as a result of the public spending review. They are taking action; I am pleased to see that the RPA—the review of public administration—is proceeding to reduce the number of councils. However, I am sure that the Executive will have heard the frustrations expressed tonight in your Lordships’ House about the programme for government.

I was the relevant Minister on two levels. I had to look at two decisions: one on the introduction of water charges and another on the 11-plus, which was also mentioned. Neither of those were popular decisions and nor are they now. However, clearly difficult decisions must be taken so I am certainly not against the Northern Ireland Executive having to take political responsibility for their own budget. My real fear is that the cuts already announced are too harsh and too deep, and will bring significant problems to both individuals and the Northern Ireland economy. I was struck by the comment of the noble Lord, Lord Black, about the creative industries and how difficult they are finding some of the cuts that they have had to face.

I welcome some of the decisions made by the Executive in support of businesses. For example, there was an announcement yesterday by Invest NI, which is part of DETI, the Department of Enterprise, Trade and Investment, of a new £50 million fund to provide loans to companies that have not been able to access equity. Despite government promises to get the banks to lend more, that remains a significant problem for many smaller businesses and medium-sized enterprises that are trying to grow. I congratulate Invest NI on a great initiative, which has the potential to make a real difference.

We see a position where the Northern Ireland Executive already have to make significant changes and cuts, and need to attract investment to rebuild the economy. My concern arises because the impact of a reduction in corporation tax could be a loss of a further £300 million or £367 million—different figures have been mentioned. That cut in devolved spending has to be taken into consideration by all who are debating this issue. Where will that money come from? Which services will bear the brunt of that further cut? That is the area of concern. Is it too high a price to pay? In examining the case for a cut in corporation tax for Northern Ireland, one has to look at the reasons for the growth in investment that we saw in the Republic of Ireland. Was the primary factor in the growth in investment and the increase in jobs that was seen—we do not see it now—a different level of corporation tax?

I am not a tax expert but I have tried to speak to and read the works of those who are. They tell me that the Republic did not compete on just its tax rate. Many experts say that, in effect, many companies are offered a zero rate—they pay nothing at all—and that is part of the reason for the current problems that the Republic of Ireland is experiencing. There was significant growth, yet while the rate of corporation tax remains the same the economy now has significant problems. The level of unemployment in the Republic is significantly higher than it is in both the UK as a whole and Northern Ireland. For example, unemployment in Northern Ireland is a little more than 7.5 per cent, while in the Republic it is 14.3 per cent—up from 4.6 per cent in 2007. Among 18 to 24 year-olds, unemployment has significantly increased here in the UK to just over 21 per cent. In Northern Ireland it is 18 per cent but in the Republic of Ireland youth unemployment is a staggering 31.5 per cent.

Therefore, I urge caution: I worry that some may feel that a cut in corporation tax is enough to encourage that much needed investment. I note that the noble Lord, Lord Lexden, agrees with my concern that on its own it is not enough. We recognise that it is much more complex and that significantly more information is needed. I understand that the Northern Ireland Grand Committee in the other place has postponed its session on the economy and instead is debating the big society because it feels that it does not have enough information at this stage and wants more information before it resumes that debate.

I appreciate that the Government know that there is a lot of work to be done before any decision can be taken but, for the debate to proceed, more basic information is required. The Minister may have this information to hand. I am not clear whether the Government yet know how many companies in Northern Ireland pay corporation tax and at what level. Do we know what the total take of corporation tax in Northern Ireland is? Unless we have those figures it is very difficult to ascertain what the cut in the block grant should be.

The paper suggests that the level of corporation tax tapers off as the level of the block grant goes down. However, if it proves evident that the cut in corporation tax is not having the intended effect, do the Government plan to consider making adjustments to the amount of block grant being removed? I know the issue will be resolved but the Azores judgment specifically says that there has to be a balancing to ensure that any money that could be gained through corporation tax has to be taken away from another area. Therefore, if the amount gained through cutting corporation tax is not realised, does the amount of the block grant still go down by that amount? I have reservations about this devolved matter but if we are to work with the Executive and the people of Northern Ireland to secure the stable and resilient economy that we want to see we have to listen to local decision-makers and take on board their arguments on these issues.

Finally, I understand that the Government are establishing a working party—it may already have met—with Northern Ireland representatives and UK Ministers. Given the significance and impact of this issue it would be helpful to have representatives from all the political parties on the Executive discussing and examining it.

21:12

[Lord Shutt of Greetland]

My Lords, I congratulate the noble Lord, Lord Lexden, on securing this splendid and important debate. I am grateful to your Lordships for the quality of their contributions. Noble Lords have travelled down memory lane but in so doing have provided tremendous insight into the journeys and experiences that have ultimately brought them to this House. It is a privilege to listen to so many wonderful contributions.

The coalition Government’s commitment to rebalancing the Northern Ireland economy is one of the key objectives we share with the Northern Ireland Executive. The recent announcement by the Chancellor that air passenger duty in Northern Ireland would be reduced and then ultimately devolved to the Assembly shows that we are prepared to act decisively and creatively in order to keep the economy moving. I believe we all agree that the Northern Ireland economy is overreliant on public sector spending. The situation is understandable—one of the sad legacies of the Troubles is that the economy stagnated in Northern Ireland while it grew elsewhere. The support of the public sector was necessary, but both now and in the longer term relying on those levels of public spending is unsustainable.

The Northern Ireland Executive and Invest Northern Ireland have had some notable successes in attracting investment in recent years, with new entrants to the Northern Ireland market such as the New York Stock Exchange and Citigroup and the expansion of existing businesses such as PricewaterhouseCoopers—all creating jobs which add value to the Northern Ireland economy. However, these successes are not enough. Northern Ireland still has some way to go and, for that reason, the Treasury consultation paper on rebalancing the Northern Ireland economy set out some radical proposals for discussion.

The business community has made the case that a reduction in corporation tax to a level similar to that in Ireland would kick-start inward investment and growth, sending a resounding message that Northern Ireland was open for business. Those responsible for attracting inward investment in the Republic are adamant about the role their business tax regime has played in ensuring that even during the global economic downturn Ireland remains at or near the top of the global rankings for attracting inward investment and jobs. The head of the Irish economic development agency has said that the 12.5 per cent corporation tax rate is the “cornerstone” of Irish industrial policy.

However, we need to be cautious—as has been repeated here—because low corporation tax is not a silver bullet. Infrastructure, education, training and the planning regime all play a key role, too. The Exchequer Secretary has written to the First Minister and Deputy First Minister about the creation of a working group to further examine issues raised during the consultation period. The work of that group will be vital in gaining deeper insight into the potential costs, benefits and administrative hurdles associated with a tax reduction. We must not try to pre-empt the outworkings of that process. No decisions have yet been made, but we all look forward to the insight that the ministerial group will give to the issue.

I will now endeavour to pick up the points raised during the debate. The noble Lord, Lord Lexden, referred to the working group and hoped that I would add something on it. The noble Baroness also referred to it. It is only in recent days that the invitation was put to the Northern Ireland Executive asking them to nominate Ministers to serve on a group. Their decision was to come up with four Ministers—the First Minister, the Deputy First Minister, and the two Ministers responsible for finance and for trade and industry. The point was made about business as usual and getting on with life in the way in which others would. The four Ministers have been put up. The Executive were asked, “Who would you like to serve on the group?”. It was not even asked of them, “How many would you like? Who would be the appropriate people?”. The Executive have chosen those four people because of their function. They will, of course, be able to report back to the Northern Ireland Executive. Three parties who also have jobs in the Executive are not among those four people. In effect, it is the people themselves on that Executive who have come up with the four people who they think are right to serve on that group.

[Lord Kilclooney]

As to the cost of reducing corporation tax in Northern Ireland, the Chancellor of the Exchequer during his most recent visit to Northern Ireland said that reducing the tax could mean a reduction in the block grant of £400 million. This committee will now consider what would be the cost of the tax reduction. Is it not surprising that various businesses and organisations supported the reduction of corporation tax without even knowing how much it was going to cost the people of Northern Ireland?

[Lord Shutt of Greetland]

There is work to be done, which is why the committee has been set up to look at the detail of how this would work. Think about this: in this jurisdiction, we have income tax rates of 20 per cent and 40 per cent, and 50 per cent for people earning in excess of £150,000. In the Republic, the tax rates are 21 per cent and 40 per cent. In this jurisdiction, we have VAT of 20 per cent. In the Republic it is 21 per cent. It is even stevens.

On corporation tax, our rate is at 26 per cent, being reduced to 23 per cent, but in the Republic it is at 12.5 per cent. The Republic has held discussions with Europe as to how to endeavour to solve its troubles. Of course, it was under great pressure not to have that low rate of corporation tax. I find it instructive that the Republic has fought tooth and nail to retain a 12.5 per cent rate. I turn to the noble Lord, Lord Bew, who has been moving on this issue. The Republic’s clear view that that 12.5 per cent rate has been so important concentrates the mind. I understand that.

The noble Lord, Lord Alderdice, asked whether the Northern Ireland Executive are up to the job. It is not for me to take a view on whether people are up to the job. They have been elected and, under the system there, various people have executive roles. I am led to believe that we will not have to wait that much longer for a programme for government. On rebalancing the economy, the discussions are not a done deal, but if the rebalancing on corporation tax can take place, that may well energise them to look at other areas where the Executive can do what they can do to rebalance the economy.

Five sets of people are involved: much depends on the devolved Government, what they can do and the powers that they have, including with what is clearly a well-thought-of organisation, Invest Northern Ireland; there is also what this Government can do, although because of devolution that is somewhat limited—that is one reason why this idea has come from the Secretary of State; there is the involvement of Europe; there is the use of the cross-border entities, particularly on tourism; and, very importantly, there is the inventiveness of the private sector itself, which is a point that has already been made by several noble Lords.

I was very impressed by the contribution of the noble Lord, Lord Black of Brentwood. I am always impressed by that which I do not expect and do not know about which arises in debates in this House. On culture, the city of Derry/Londonderry will be the city of culture in 2013. Bearing in mind the detail of what the noble Lord had to say, I felt that he could well be placed as a consultant to the Northern Ireland Executive on cultural matters.

The noble Lord, Lord Empey, referred to food and was the one person who said that this was not about bother in Northern Ireland but about the economy of Northern Ireland. It is not for the UK Government to say where Invest Northern Ireland’s priorities ought to be. The noble Lord makes the very valid point that for so many reasons it is clearly an area that should be looked at as a possibility for investment. Of course, it would be for the Northern Ireland Executive to take that view.

I am concerned about the time. My time is up. If there are any specifics and anything that I have been asked about to which I have not responded, I will endeavour to do that. It has been a splendid debate on the possibilities of what can be done, based on the rebalancing report and splendid introduction made by the noble Lord, Lord Lexden. I hope and believe that so many of the contributions will be noted by Her Majesty’s Government as we go forward.

House adjourned at 9.25 pm.

Pensions Bill [HL]

Wednesday 19th October 2011 Lords Chamber

Returned from the Commons

The Bill was returned from the Commons agreed to with amendments. It was ordered that the Commons amendments be printed.