Terrorism Prevention and Investigation Measures Bill

Baroness Hamwee Excerpts

Wednesday 5th October 2011 Lords Chamber

[Baroness Hamwee]

My Lords, I, too, thank the Minister for his introduction and welcome him to his position. If I were to say that I wished that my noble friend Lady Browning was here, I would not want him to take that the wrong way, but I use this opportunity to pass on the House’s good wishes to her.

I very much welcome the repeal of the 2005 Act. I hope that by the time this Bill leaves the House I shall be more enthusiastic about the whole of it, but I am already enthusiastic about Clause 1.

No one could envy a Home Secretary faced not just with specific decisions under that Act and this Bill, if enacted, but also with wider policy. I am very conscious of who is sitting immediately in front of me—the noble Lord, Lord Howard of Lympne—in saying this. Control orders always seemed offensive to me because of the impact on the individual and because of the inherent risk that, in using an order, or measure, to restrain a potential terrorist, the effect might be to drive that individual, or perhaps others who knew him and who knew about the restraint because they had been in the same community—however you define that—towards the very actions that one sought to avoid. That is quite the opposite of the intended effect.

I do not challenge the assessment of the risk of the threat of terrorism and am of course in no position to do so. As I have often said, there is no answer to, “If you knew what I know”. But it is necessary to take risks in order to manage risks. It is really not possible for the public, which is almost all of us, to know how executive decision-making operates in this area. We have in this Bill the proposed safeguard of a role for the court to determine whether the Secretary of State’s decisions are “obviously flawed”, to use the term in the Bill. That will be impossible to assess without access to the evidence, which is why the judicial role is so important. These cases are pretty likely to reach the court sooner or later, so why not start them there? However, I take a point made, I think, by Liberty, that the judges’ role must remain separate from that of the Executive, as there is a danger in a judge making a political decision.

In Committee, we will explore where the appropriate fit is within the judicial system. I know that my noble friends Lord Goodhart and Lord Phillips will address that matter. As has been said, the views of my noble friend Lord Macdonald are well known. I do not know whether he will use any of the amendments drafted by the Joint Committee on Human Rights on the basis of those views. I must say that it is pretty jammy to find that a Select Committee has drafted your amendments for you.

We will be debating later today the Terrorism Act 2000 (Remedial) Order. The Joint Committee made a number of points to the Secretary of State, one of which was that prior judicial authorisation of the power to stop and search, the subject of the remedial order, should be applied when stop and search was used without reasonable suspicion. The Secretary of State’s answer was that the Government rejected that view because it would not be appropriate or helpful,

“to blur the lines between the executive and the judiciary in this way”.

I disagree.

TPIMs will continue the use of the special advocate system. The idea of a lawyer representing a client but being unable to take instructions from that client, because there is nothing on which to take instructions, is not something that I have been able to get my head around. Neither the individual nor his lawyers would have more than the gist of the case, if one can call it a case, against him. Believe me, my practice as a solicitor persuaded me after quite a short time that one needs to be able to test the material and test evidence to destruction with your own client in order to be able to represent him.

The whole regime of special advocates will, I believe, be the subject of a Green Paper, and I use this opportunity to ask the Minister whether he could give the House any information as to when we might see it. Under the Bill, the hurdle for the Secretary of State is slightly higher than reasonable suspicion, but reasonable belief is not so very high a hurdle. We have already had mention of the draft enhanced TPIMs Bill, and we have seen the recently added Clauses 26 and 27. On the draft Bill, perhaps the Minister can tell us the arrangements for the pre-legislative scrutiny that we are promised and which will distinguish that Bill from other emergency legislation that we have seen. But under both of those, the Secretary of State would have to be satisfied on a balance of probabilities that the individual is, or has been, involved in terrorism-related activity. That is, of course, a lower standard than the criminal standard of beyond reasonable doubt. As I understand it, the enhanced TPIMs will be brought into effect depending on circumstances at the time, not on the risk related to the individual. There seems to me no reason why the balance of probabilities should not apply to standard TPIMs as well as to enhanced ones. That seems to be the logic of the way the enhanced TPIMs would come into effect. So we have executive action on a low evidence threshold and something close to executive legislation, since the Bill includes the power for the Secretary of State to repeal, extend or revive by order the legislation.

The title of the Bill is significant. We need to look at the provisions through the lens of prevention and investigation. I have heard—it may be that I read it as comments during the Public Bill Committee debate in the Commons—that control orders and TPIMs can be compared with ASBOs, but we are not dealing with a sanction or penalty here. It is also difficult to see how there can be an investigation since the objective of the Bill is to prevent offences. It is certainly difficult to see how there can be evidence of new activity for a TPIM after the first one.

The Bill raises issues around many aspects and stages of the process. I was left standing by arguments made by other noble Lords on the distinction between appeal, judicial review and the application of the principles of judicial review when we dealt with terrorist asset-freezing legislation some months ago. That legislation also threw up issues around the last of the major areas that I wish to raise today: how one deals with an individual and those around that individual—close and extended family and friends. This is an individual who has not been charged with, let alone convicted of, an offence; someone who may have terrorism in mind, but who is also a human being. Put at its lowest, and as a simple matter of protecting society, it does not seem to me to be good tactics to treat someone in such a way that we drive or tip them into the very actions that we seek to avoid. There are, of course, reputational issues for our country, too, but there is a basic moral code—common humanity—that must remain in play.

Several noble Lords attended a meeting yesterday when I asked someone who had been under a control order, which had been quashed, about the impact of particular measures. I did so wondering whether something similar to the licences that the Treasury is able to grant in the asset-freezing regime might be applied here, both general—for instance, spending on basic living costs—and case by case. The answer that the gentleman gave me was that it was the prevention from taking part in ordinary, mundane activities that was the most destructive thing. He was banned from meeting—or associating with, in the jargon—his oldest friend. Of course, both the family life of the individual and the life of his family are affected. How can they not be?

I have been thinking about the need for access to a doctor of that individual’s own choice. It is difficult to believe that control orders and these proposed measures could have no effect on mental health. Those in the know say that all the individuals under control orders whom they have encountered have been significantly damaged. It is simply not adequate to say, “Go to the local GP”.

The Minister may say that the measures will be humane and proportionate, and that that is implicit in the revised arrangement. We will want to explore that in Committee. I suspect that much will depend on how the measures are applied by the Home Secretary and others. For instance, the time of day when someone under a control order is required to report to a police station can make the difference between whether or not they are able to work or study. By the end of this process, I would like to be assured that we have made the legislation as good as it can be in what is, I acknowledge, a very difficult situation.

If we forget that there is a human being at the centre of all this, we will overlook the normal reactions to restrictions. There is the risk of driving a person into breach of a measure and thus criminalising someone who was not a criminal before. If we dehumanise someone in our own minds—the human being who is still there at the end of the process—and forget that he will have profound needs, then, whether or not there is more or less of a threat, we will not have done well. These are difficult issues. I find it quite difficult even to find the language to discuss them, but discuss them we must.

Finally, I have some rather more discrete questions to the Minister. In evidence to the Public Bill Committee in the Commons, the Metropolitan Police said that it had put in a business plan regarding the resources that it would require for surveillance. Can the Minister give me any news as to whether the Metropolitan Police has been satisfied with the response to that? Can he give the House any information about the number of prosecutions for terrorism that there have been of those under control orders? Inevitably, I also have to ask him about any news of dealing with intercept evidence.

My noble friends bring different experiences—some high profile, some lower profile but very key—and I hope that they and I, and the House as a whole, can help make this legislation intellectually coherent and satisfactorily based in the rule of law. As our own Constitution Committee has said, it has only an indirect relationship with the criminal justice system. It should be HR-compliant and obviously so—not just assessed as technically compliant, but something with which we, in our hearts as well as our minds, can live.

--- Later in debate ---

[Lord Harris of Haringey]

My Lords, as ever I am grateful to the noble Lord, Lord Howard, for his helpful intervention. My point is simple. This was a power that previous Home Secretaries and the current Home Secretary found necessary. It is one that the security services and police said was necessary. However, we are now told that the fresh air of the West Midlands conurbation and its bucolic atmosphere have so changed this individual’s personality that he now poses much less of a threat. That is frankly implausible. The reality is that this power was necessary. The present Home Secretary, knowing of the proposal that she would bring before Parliament, chose to exercise the power. The power remains necessary.

[Baroness Hamwee]

Would the noble Lord like to say anything about the development of technology? He may be overlooking the fact that individuals who are subject to these measures will almost undoubtedly be tagged. I do not know much about it, but I am sure that the technology is developing as we speak, and that it is possible to know where people who are tagged are going, and whether they are going where they should not be going. Surely that needs to be taken into account.

[Lord Harris of Haringey]

As I understand it, people who are subject to control orders are in many instances already tagged. Tagging is a useful technique. Tags can be removed, though the best tags are supposed to tell you if they have been—and I am sure that only the best tags will be purchased for this purpose. However, the problem is the risk of association. If somebody lives in a particular area and it is deemed that the danger of association is there, a tag will not tell you who comes to see that individual. Nor will it tell you where they go in their immediate vicinity, which could be precisely where those associations take place. The point of relocation is to minimise the risk of those associations, or to enable them to be monitored.

Just eight months ago, the rational and responsible Home Secretary, on the information presented to her, felt that the individual concerned was so dangerous that not only did he need to be subject to a control order but he should be relocated miles away from his previous environment. She made the judgment knowing that the Bill would remove that option and tie her hands in future. The rational and responsible Home Secretary made that judgment knowing that however much of a danger the person was thought to be, such an outcome would be taken away. The Minister needs to tell us why the judgment that the Home Secretary made then will no longer apply to this individual when the Bill becomes law.

Perhaps we should not expect the Minister to go through such contortions to provide an explanation. Perhaps all he needs to do is concede that the Home Secretary made that judgment in the interests of our nation's security but that this shabby, tawdry compromise of a Bill would prevent her making the same judgment in future. This compromise is not just between the two wings of an uneasy and unhappy coalition, but a compromise with the nation's security.