Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Hamwee and Lord Anderson of Ipswich

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, we have Amendments 6, 18 and 36 in this group. Under new Section 29B, the person granting a criminal conduct authorisation must believe that the authorisation is necessary on one of three specific grounds, including that it must be

“proportionate to what is sought to be achieved”

and that the requirements imposed by the Home Secretary will be satisfied—which we have had confirmed as being restrictive rather than loosening safeguards. Amendment 36 is the Scottish equivalent of Amendment 6.

The noble Lord, Lord Anderson, had this amendment in Committee and I am grateful to him and the noble and learned Lord, Lord Thomas of Cwmgiedd, for adding their names to it. As party politicians, my noble friend Lord Paddick and I could be thought of as political troublemakers, which is not what we set out to be. However, the noble Lord and the noble and learned Lord who also signed this amendment apply their measured, informed objectivity. The Bar Council has also been in touch with me to give its support.

Belief is subjective, informed or misinformed by background, experience and personality. Some people are naturally more inclined to be that bit more optimistic; I want to avoid judgmental terms such as “casual”. Necessity and proportionality are rightly required criteria, but they lose their force as safeguards unless there is a degree of objectivity in their assessment. “Reasonable” is so usual a term in legislation that its omission itself assumes some significance.

I do not think we have heard an argument that a belief must be reasonable to be a belief, but I anticipate that. I reject that it is implied, because there is no reason to omit the term—and anyway, we should not work on the basis of what may be implied by long usage, as distinct from precedent.

In Committee, the Advocate-General said that under section 3.10 of the draft code of practice,

“the person granting the authorisation should hold a reasonable belief that it is necessary and proportionate.”—[Official Report, 1/12/20; col. 667.]

Section 3.10 is within the section on general rules on authorisation of someone to take on the role of CHIS. The paragraph specifically on criminal conduct authorisations says that

“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”

The noble and learned Lord told the Committee that new Section 29B was

“drafted to align with the existing Section 29”,

and that the amendment would

“cast doubt on the test to be applied for other authorisations”;—[Official Report, 1/12/20; col. 667.]

it would be inconsistent. The engagement of a CHIS is of huge significance, as we have heard this evening and on previous occasions, but it is of a lesser order than a criminal conduct authorisation. In any event, I rather take the view that the Section 29 powers should require a reasonable belief that they are necessary and proportionate to be exercised, and that that should be in the Bill. If the Government accept Amendments 6 and 36, we will not challenge such an amendment to Section 29 if they bring that forward at Third Reading.

The noble and learned Lord, Lord Stewart, said he would clarify this by way of letter. I have not seen that, although I have seen a Home Office email, which went not to me but was passed on, referring to a requirement for a reasonable belief. But I do not think it is a matter of clarification; it should be in the Bill. The government response to the JCHR this morning repeats what the Minister said in Committee. I am worried about inconsistency between the Bill and the draft code of practice. To be clear, I am not suggesting the word should be taken out of the code.

Amendment 18 has found its way into this group, which is perhaps no bad thing given the length of the previous group. It is the seriousness of a CCA that prompted that amendment. It provides that a CCA would expire after four months, although it could be renewed. In Committee, the Minister argued for consistency with Section 29 authorisations, which are for a period of 12 months, and referred to the code of practice, which says that the CCA should be

“relied upon for as short a duration as possible.”

The power should remain “operationally workable”; I think four months fulfils that.

The CCA takes us to an even more serious place than infiltration. As my noble friend pointed out, on the Government’s logic we would not need a Bill to authorise CHIS to commit a crime because it is just the same as deploying a CHIS. This amendment has dropped the monthly review of CCA, which was in our Amendment 49 in Committee, in an attempt to meet the Government part way. Surely it is good practice to have a very clear and fairly frequent timetable laid down; four months is not that often. In many situations it is good practice to have a very clear checklist. This is one of them.

To return to Amendments 6 and 36, as the noble and learned Lord, Lord Thomas, said so succinctly in Committee, anything other than a belief held on an objective basis would be quite exceptional. The Bill ought to be clear, with no room for ambiguity or argument if the matter ever comes before the court. This is such an important point that, in the absence of the Government’s agreement, I will seek the opinion of the House. I beg to move.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I have signed Amendments 6 and 36, having tabled similar amendments myself in Committee. At this stage, I am a little mystified by the Government’s position. They seem to accept that the relevant belief of authorising officers should be reasonable to the point where they have made an amendment along these lines to the code of practice at paragraph 6.4. Yet they refuse to make the equivalent amendment to the Bill.

The noble and learned Lord the Advocate-General defended the Government’s position in Committee, as the noble Baroness, Lady Hamwee, said, on the basis that it would promote consistency between different parts of the Regulation of Investigatory Powers Act. I suggest that is an argument of little force, given the unique nature of the power conferred by the Bill.

In fact, it is the Government’s position that results in a greater and more damaging inconsistency between the terms of the Bill and the associated parts of the code of practice. If the test is to be reasonable belief, it needs to be stated in the law. We are offered a code of practice now amended so that paragraph 6.4 provides that

“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”

A code of practice is not the same as the law and “it is expected” is not even the language of legal obligation; it is the language of a dress code.

This is not just playing with words. On the basis of our first debate, it seems to be common ground that criminal responsibility for incorrect authorisations is dependent, at least in part, on a court having found the authorisation to be a nullity, presumably because the necessity or proportionality criteria were not satisfied. If the legal standard set out in the Act is one of “reasonable” belief, the court will scrutinise whether the officer’s belief was reasonable. If that word is not in the Act, a court will be invited to proceed on the basis of a test of subjective belief or, at most, the relatively undemanding test or public law rationality.

These apparently inconsequential amendments go to the issue of immunity, reflected in my Amendment 21 and in the amendments and speeches of many other noble Lords. That issue is at the heart of the Bill. I hope the Minister will accept Amendments 6 and 36, because she appears to agree with their substance, but if the noble Baroness, Lady Hamwee, presses them to a vote she will have my support.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Hamwee and Lord Anderson of Ipswich

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, my noble friend Lord Paddick and I have Amendments 16, 18, 20, 32 and 33 in this group, which is concerned with the test—the standard or threshold, if noble Lords prefer—for granting a criminal conduct authorisation.

The JCHR made the very good point in the conclusion of its report that

“it would be more effective for a test of objective reasonableness to be applied in the course of an independent judicial approval process”.

It also made the important point:

“If a test of ‘reasonable belief’ were applied to the making of an authorisation, a CCA made without objective justification would be invalid. However, the CHIS acting under the CCA would not know this. This could result in the CHIS being exposed to criminal prosecution or a civil claim, despite the fault being with the individual making the authorisation.”


The Minister has just reminded us of the duty of care to a CHIS.

New Section 29B(4) requires belief as to three matters listed on the part of the person granting the CCA. I am always keen to follow the noble Lord, Lord Anderson, and we go a long way together on this group and then part company a little towards the end. Is a simple belief that something is necessary and proportionate an adequate test, or is a simple belief—to read from new Section 29B(4)(c)—that “arrangements exist that satisfy” the Secretary of State’s requirements? We will come later to what those arrangements might be, but it is the same issue. I acknowledge that subsection (4)(c) is probably more procedural than substantive.

A person might honestly believe in all these things but be mistaken. But he could still assert that belief, hence the need for objectivity—at least, an objectively reasonable belief. As the JCHR said, that is a

“standard requirement for the exercise of police powers—from stop and search, to arrest, to applying for a search warrant. This prevents these powers being lawfully exercised without reasonable justification. It is a vital protection against overzealous or misguided officers.”

That is what is in the guidance. Although I of course welcome that, it is worrying that the term is not included in the Bill. I am not clear whether that is a deliberate omission. Certainly, the legislation and the guidance should be consistent.

The amendment in the name of the noble Lord, Lord Anderson, which was moved by my right honourable friend Alistair Carmichael in the Commons, imports objectivity. We are going further by asking whether the Government should justify why something is not actually necessary or proportionate, or satisfying the Secretary of State’s requirements.

New Section 29B(6) is a gloss on Section 29B(4) and tells us what is to be taken into account in authorising the conduct—

“whether what is sought to be achieved by the authorised conduct could reasonably be achieved by other conduct which would not constitute crime.”

We would take out “reasonably”.

The Government might say that its inclusion is a safeguard for what the noble Lord, Lord Anderson, and I are seeking in our respective amendments. What concerns us, however, is that anything that spells out how you reach a belief or conclusion is in danger of weakening what is central to authorising a CCA: the necessity and proportionality of it. Both of those contain an element of judgment and we do not want to weaken subsections (4)(a) and (b), hence our Amendment 32.

Amendment 33 is in the same family. It would remove “reasonably” from subsection (6) of proposed new Clause 29B, which I just quoted. That subsection lends itself more to being tested, so I am less concerned about it than other amendments. Perhaps, however, I should make it clear that we are not in the business of trading one “reasonably” for another. Our other amendments are consequential.

On the amendment from the noble Lord, Lord Rosser —I think that it will be spoken to by the noble Lord, Lord Kennedy—we think it preferable not to go down the route of listing matters to be taken into account, as that amendment does. I am sure that the noble Lord, Lord Anderson, could tell us about the case law. Simply, I would not be surprised if the Minister says this too, since she and I have had this discussion on many occasions: a list is bound not to be complete, and the more you list, the less scope there is to take into account something that is not spelled out. With that, I beg to move Amendment 16.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, it is a pleasure to follow the noble Baroness for at least part of her journey, as she says. I will speak to Amendment 17 and its Scottish equivalent, Amendment 72. They would require that the authorising officer’s

“belief in the necessity and proportionality of a criminal conduct authorisation, and in the existence of satisfactory arrangements, be reasonably held.”

In paragraph 67 of its report, the Joint Committee on Human Rights rightly said:

“It cannot be acceptable for CCAs to be made on the basis of an unreasonable belief in their necessity and proportionality.”


Despite the wording of the Bill, which makes no reference to reasonableness, the Government appear to agree with the Joint Committee. We know this from Second Reading in the House of Commons, when the Solicitor-General stated, in answer to Jeremy Wright MP, that

“the code of practice sets out that there does need to be a reasonable belief that an authorisation is necessary and proportionate.”—[Official Report, Commons, 5/10/20; col. 707].

Is that a sufficient answer? I am afraid not—for two reasons. First, the draft code of practice, as I read it, does not plainly provide that belief be reasonable. Section 6.1 of the draft code, issued alongside the Bill, provides that a criminal conduct authorisation

“may be granted by the authorising officer where they believe that the authorisation is necessary”.

Section 6.3 states:

“The authorising officer must also believe that the authorised criminal conduct is proportionate”.


The requirement that belief be reasonable is not clear, even in the code of practice. Those sections of the code appear quite consistent with the requirement of a merely subjective belief. Secondly, and more fundamentally, the notion of reasonableness is—as I think the Government acknowledge—completely absent from the Bill itself, which the courts will of course treat as the authoritative source.

My point is very simple: why is the position rightly endorsed by the Solicitor-General—that belief should be reasonable—not reflected in the Bill?

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Hamwee and Lord Anderson of Ipswich

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, this may look like a very long group, but it almost entirely concerns a couple of points, so I hope it need not detain your Lordships too long. Amendments 1, 2, 4, 10, 13 and 38 are probing. I appreciate the need for precision in legislation, which—I hope the drafters will not take this amiss—often means the wording can be a bit clunky. I would therefore be grateful for a detailed unpacking of two points on the wording.

First, I wondered whether

“criminal conduct in the course of … conduct”

is something to do with how Section 26 of the Regulation of Investigatory Powers Act 2000 is constructed. Section 26(1) applies to

“the conduct and use of covert human intelligence sources.”

Is there a concern that there is a need to provide for something different to that? Is there a concern that what is to be covered cannot be separated from that? For instance, there might be a need for separate authorisations. In other words, why not have a straight- forward authorisation of criminal conduct by a CHIS? It may be because it needs to be made clear that there is no wholesale authorisation of criminal conduct by a CHIS, but surely that would be only when they are acting as a CHIS. Would not the authorisation cover that? I would be grateful if the Minister could unpack that phrase for the Committee.

The second phrase is conduct “in connection with” the conduct of a CHIS. How closely connected must the second category be? I am particularly concerned to be clear whether this is to catch, or ensure that it does not catch—it occurs to me that “catch” may not be the best term here—the person giving an authorisation, the person to whom he reports and anyone overseeing that authorisation. I would be concerned if it applied to that person inciting or being an accessory to a crime, or conspiring. Would this not mean that someone is authorising himself? What is intended by this? I have omitted to welcome the Minister to what I assume is his first outing in a Committee; can he be clear about the position of those who in other situations—ordinary criminals, if you like—would be an accessory to, inciting or conspiring in a crime? Amendment 40 addresses the same point, although the phrase is conduct “in relation to” a CHIS.

Amendment 37 has been tabled to probe whether the authorisation can be retrospective, relating to past conduct. I note that Amendment 50 from the noble Lord, Lord Davies of Gower, which we will come to next week, would allow for retrospective authorisation, subject to criteria. I do not want to steal his thunder; no doubt he will talk about the operational realities which will sometimes make it very difficult to anticipate what will happen on the ground. If there is to be immunity for conduct which has been authorised ex post facto, the criteria and limitations will be very important. I beg to move Amendment 1.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, for each of the probing amendments in this group. Most of them, as the noble Baroness has said, are directed at essentially the same point: the intended scope of criminal conduct authorisations. I echo her remarks in finding the phrases she identified less than clear.

For me, the underlying question is whether it is intended that the conduct of any person other than a CHIS should be entitled to the protection of a criminal conduct authorisation, and if so in what circumstances. Are we talking about protections from criminal and civil recourse for the CHIS handler, controller or authorising officer, or more generally for the public authority that employs them, or are we talking about the protection of other people who are neither a CHIS nor employed by the authorising authority? I hope the Minister will make the position clear and, if he does not favour the simpler formulations in these amendments, explain why.

Amendment 37 raises a slightly different issue. It suggests that an authorisation cannot be retrospective, which is surely right and was confirmed by the Solicitor-General at Second Reading in the other place when he said:

“The Bill does not seek to enable the retrospective granting of a criminal conduct authorisation”.— [Official Report, Commons, 5/10/20; col. 707.]


A close reading of the Bill confirms that, on balance, it does not provide for retrospective authorisations: the new Section 29B(6), for example, refers to what

“could reasonably be achieved by other conduct”,

not to what could reasonably have been achieved. However, this is indirect and intricate stuff; clarification in the Bill would be welcome, and this amendment provides it.

Counter-Terrorism and Border Security Bill

Debate between Baroness Hamwee and Lord Anderson of Ipswich

Report stage (Hansard - continued): House of Lords
Monday 3rd December 2018 Lords Chamber

[Baroness Hamwee]

My Lords, Amendment 28 repeats an amendment I proposed in Committee on behalf of the JCHR, which gathered considerable support from the noble Lords, Lord Anderson, Lord Judd and Lord Pannick, and the noble Baroness, Lady Kennedy, as well as my Front Bench and the Labour Front Bench. The noble Lord, Lord Carlile, said that he was,

“not convinced that the Government have got the proportionality of this right”.— [Official Report, 31/10/18, col. 1409.]

That has encouraged me to raise the issue again.

This amendment is in connection with the search and entry provisions. It would provide that, rather than allowing search and entry to assess risk, it would be far more specifically to assess whether the subject of a warrant was in breach of the notification requirements applying to him.

The Minister said that the provision was proportional. The terminology used in Committee included “home visits” and the police “keeping in touch”, which sounds much gentler than a power to enter and search under a warrant. I talked about what the noble Lord, Lord Anderson, called the human element—the impact on an individual’s family—but, as other noble Lords pointed out, the impact is often much wider in such a situation.

We will consider the Prevent policy on the next day of Report and no doubt noble Lords will raise the importance of how a policy is perceived by the community affected. The infringement of the privacy of the individual and of the individual’s family, who I think are at risk of considerable distress, which is part of the Government’s proposals, is not just a matter of a lack of proportion. It also carries a significant risk of damaging, if not destroying, the trust of the community, which in turn impacts on everyone’s security.

I acknowledge that there has to be a warrant. I am sorry if this sounds cynical, but can we be confident that a magistrate will always ask for details of compliance or otherwise with the notification requirements on the part of the subject of a requested warrant? Will a magistrate ignore the police’s wish to go on a fishing expedition, if you like?

The Minister drew a comparison with registered sex offenders. As the noble Lord, Lord Anderson, is here, perhaps I should let him speak for himself if he wishes and intends to do so, having pursued this with Professor Clive Walker. I am looking to see whether he is going to because if not then I am going to quote Professor Walker—I am being told to go ahead. I am grateful to him for pursuing this matter. Professor Walker looked at the comparison with people on the sex offender register and distinguishes this situation from that one because of the additional ways of mitigating the risk where terrorist offenders are concerned. He also made the point that if he had realised what the provisions applying to sex offenders were, he would have been critical then. As he says,

“a bad precedent should not be used as a basis for more bad law … I still argue that it is unwarranted to treat terrorism offenders in this way in comparison to sex offenders because of the different designs now being applied to terrorism offenders … in terms of their periods of endurance and also possibilities of review”.

He refers particularly to the extent of the respective orders—currently scrutiny over identity, residence, travel— and to the fact that the Bill imposes requirements as to mobile phone details, email addresses, vehicles, banks and identification documents. He says:

“If such information is provided, all of which can be checked against external records, should this not reduce the residual risk and so reduce the need for entry in order to check ‘risk’? … If these extra demands do not adequately reduce risk, what is their value?”


That is another way of asking the question that I asked in Committee on whether the notification requirements in themselves were insufficient. If the answer is no, they are sufficient—and I would expect the Government to say that—then what is the justification for this, as I say, potentially damaging provision? I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I support the amendment for the reasons that the noble Baroness has given. The only additional point that I would make, and I made it in Committee as well, is whether the person to whom the warrant relates being in breach of notification requirements constitutes a sufficient ground for the entry and search of the home of a TPIM subject—among, one must assume, the most dangerous of terrorists or suspected terrorists in this country. It is a little hard, at least for me, to see why it should not be sufficient in relation to the prisoners and those remanded in custody who are dealt with under this part of the Bill.

Counter-Terrorism and Border Security Bill

Debate between Baroness Hamwee and Lord Anderson of Ipswich

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Lord Anderson of Ipswich (CB)]

I support the Government’s position on Amendments 42 and 46. In a report of July 2013, The Terrorism Acts in 2012, I recorded the result of an extensive inquiry conducted with MI5 and counterterrorism police into the value of no-suspicion stops under Schedule 7 to the Terrorism Act. I started from a position of, I hope, healthy scepticism, but noted three useful functions of the no-suspicion stop: deterring and detecting the use of “clean skins” to transport terrorist material; avoiding alerting travellers that they were the object of surveillance; and enabling the travelling companion of a person suspected of involvement in terrorism to be stopped and questioned. I followed this up with several real-life examples, which I had verified, of no-suspicion stops that had brought significant benefits in terms of disrupting potential terrorists. More to the point, perhaps, in the case of Beghal in 2015 a majority of the Supreme Court held that having regard to the many safeguards on its exercise, the absence of a suspicion requirement was not such as to render the basic Schedule 7 power inconsistent with the principle of legality. That judgment contained a lengthy comparison of Schedule 7 with the former Section 44, to which the noble Lord, Lord Paddick, addressed some remarks.

These few words should not be understood as a rejection of some enhanced threshold for the use of more specialised powers under Schedule 7 to the 2000 Act, or Schedule 3 to this Bill, such as downloading a phone or, indeed, taking a person into detention. Still less should it be understood as support for no-suspicion powers of stop and search in more orthodox areas of policing where threats to national security are not in issue. I hope, however, that it explains why I do not support these amendments.

[Baroness Hamwee]

The noble Lord reminds us about the draft code of conduct. It spells out considerations that relate to the threat of hostile activity and lists a number of factors, one of which, in the context of the stop not being arbitrary, is to have consideration of “possible current, emerging … hostile activity”, which is understandable, and “future hostile activity”. Can the Minister explain the distinction between emerging and future hostile activity?

Counter-Terrorism and Border Security Bill

Debate between Baroness Hamwee and Lord Anderson of Ipswich

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Baroness Hamwee]

My Lords, since the Joint Committee on Human Rights is meeting at this moment it has not been possible to take its view on this amendment but I think it must follow from my comments on Clause 1 that it would not be enthusiastic, as these provisions obviously have to be read together. I was amused that the Minister said, as did the noble Baroness’s letter to noble Lords of 24 October, that the Government have identified further offences. They are not quite offences yet, are they? It would perhaps be fairer to say that the amendment is consequential on Clause, but that is a minor point.

[Lord Anderson of Ipswich (CB)]

My Lords, I oppose this amendment and, in doing so, I will seek to explain why the issues are rather different from those considered under the previous group. If Amendment 32 is passed then Section 12 of the Terrorism Act 2000, as supercharged by Clause 1, will apply to any person anywhere in the world who expresses an opinion or belief that is supportive of an organisation proscribed in the UK and who is reckless as to the consequences. The deficiencies of our deproscription regime, with which I have already wearied your Lordships, are multiplied when coupled with the indiscriminate grant of extraterritorial jurisdiction in this context.

To illustrate the point, I invite your Lordships to look to the Republic of Ireland, whose citizens would be criminalised by a law of this Parliament for expressing supportive opinions about organisations now committed to peace but in which their grandfathers or grandmothers once fought for freedom. I shall give one example: Cumann na mBan, the Irish republican women’s organisation. It was once aligned with the IRA and is still proscribed in this country, despite no evidence of which I am aware that it has been concerned in terrorism during this century at least. The commemoration of its centenary in 2014 in Dublin was a significant national event. The speakers included President Higgins of Ireland, who spoke stirringly and approvingly of the vision that animated the women of Cumann na mBan. The Minister will of course assure us that no one is going to seek extradition of Irish citizens who expressed opinions supportive of this proscribed group but, as noble Lords have done in relation to other clauses of the Bill, I must question whether this repeated heavy reliance on the discretion of our authorities is an adequate substitute for crafting a properly defined law.

This amendment comes in very late and, as the noble Baroness, Lady Hamwee, said, without the benefit of JCHR scrutiny. Whatever view noble Lords may take of Amendments 31 and 33, I strongly question the wisdom of extending extraterritorial jurisdiction unqualified by limitations of citizenship or residence to countries where conduct caught by the expanded Section 12 is not a crime. However it is applied in practice, this amendment might be thought to have a regrettably colonial flavour, not just in Ireland but in other parts of the world. I have no doubt that it is unintended, but it is no less unfortunate for that. This amendment seems to have been an afterthought. I suggest that this is one of those occasions where the first thoughts were the best. I invite the Minister to withdraw the amendment or, at the very least, to qualify it in the ways suggested in Amendment 33.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I will speak also to Amendments 40 and 41. Clause 13 inserts a new power of entry and the power to search the homes of registered terrorist offenders, not to look for something specific but to assess,

“the risks posed by the person to whom the warrant relates”.

This is, in our view, a severe intrusion into the private life of not just the registered terrorist offender but his family. In the days of control orders, I became very aware of the impact of certain restrictions on family members, including spouses, children and extended family. I am not suggesting that these powers are the exact equivalent, but the impact on those family members, as well as that on the object of the order, was something of which I became very aware. Being the subject of a search—with the use of force permitted—is not the same, but I do not think that it is completely unrelated.

In response to the JCHR’s initial report, the Government argued that the power may be exercised only as a last resort. I assume that that is a description of Clause 13(2)(c) and (d) and that it requires a warrant and compliance with the powers of entry code of practice. These are safeguards indeed, but the threshold for exercising the power is low. The government response states that the power is to allow the police,

“to assure themselves that the individual does in fact reside at the address they have notified, and to monitor compliance with other aspects of the notification regime”.

Why does the Bill not reflect this, rather than containing the vague requirement of assessing risks?

We on the Committee considered that there should be a clearer requirement that the power is used when it is necessary and proportionate, and when there are grounds for suspicion that the notification requirements have been breached. That has led to the three amendments in this group, which would narrow the power by requiring a reasonable belief that the registered person had breached the notification requirements and ensure, as I have said, that the exercise of the power is both necessary and proportionate. I beg to move.

[Lord Anderson of Ipswich]

My Lords, Clause 13 provides for a search power that Professor Clive Walker—who is, without much doubt, our foremost expert on counterterrorism law and not a man given to either naivety or overstatement—described in written evidence to the Joint Committee on Human Rights as “outrageously wide”. As he pointed out, the clause is to be contrasted with paragraph 6(3) of Schedule 5 to the Terrorism Prevention and Investigation Measures Act 2011—the TPIM Act—which confines the purpose of the equivalent search power to that of determining whether there has been any contravention of the measures specified in the TPIM notice. That is essentially the approach that Amendment 39, which I support, adopts.

I echo the noble Baroness’s point that there is a human element to this. The families of convicted terrorists, through their support and influence, are often important factors in turning offenders away from violence. The extreme anxiety experienced by the wife of a control order subject whose house was subject to frequent unannounced searches, and the upset and trauma caused to her young children, were movingly conveyed in an article from which I quoted in my final report on control orders in 2012. I felt justified in doing so, not to give publicity to an unreliable witness—something which, like my predecessor as independent reviewer, the noble Lord, Lord Carlile, I was always astute not to do—but because the woman in question had recently been described in a High Court judgment by the highly experienced Mr Justice Mitting as an impressive witness and a person whose evidence he accepted without reservation.

The risk of upsetting or alienating such people is surely evident. I have never heard it suggested in several years of, I hope, careful oversight that the powers to enter and search premises occupied by potentially extremely dangerous TPIM subjects are insufficient, so I am puzzled as to what prompted this further turn of the ratchet—at least on paper, even if reassuring words are spoken about how it may be used in practice.

It is important that the power of entry and search should not be used as an instrument of harassment and destabilisation. This reasonable amendment would help to ensure that.

Counter-Terrorism and Border Security Bill

Debate between Baroness Hamwee and Lord Anderson of Ipswich

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Anderson of Ipswich]

I thank the Minister for his thoughtful response. It made me wish that we had had a full consultation on this novel offence prior to the introduction of the Bill, or at the very least that we had not seen it introduced to the Bill at such a late stage. However, we are where we are. I concede nothing but will consider carefully what the Minister has said.

[Baroness Hamwee]

Before the noble Lord withdraws his amendment, does he share my concern about the creation of a provision where the boundaries are so woolly and grey? His amendment would have the benefit of being quite clear about proscribed organisations—everyone would know where they were. Essentially we have heard the Minister say that the Executive and the agencies that support them will know things that the rest of us do not know and will stop travel in a situation that they cannot necessarily describe. I am not entirely sure how in that situation Parliament can scrutinise the decision through the procedure to which we have been referred.