Protection of Freedoms Bill

Baroness Royall of Blaisdon Excerpts

Thursday 15th December 2011 Grand Committee

[Lord Selsdon]

I shall also speak to Amendments 131A, 132 and 136. I shall try not to bore the Committee as this has been a fairly tedious subject for me.

I joined your Lordships’ House in 1963 as an independent unionist Peer, which is now a defunct breed and was absorbed by the Conservative Party. I was told always that I should be as independent as I could. One of my specialist subjects was the fear of someone being able to go into people’s property without permission or without a court order. Over a period of five years I introduced five Bills despite considerable opposition from everybody, but later, with the help of my noble friend Lord Marlesford, the noble and learned Lord, Lord Scott of Foscote, Liberty and a few other bodies, including a Home Office Bill team, we managed to get something through the House. I had thought that as it had got through the House and it produced a schedule of those Bills that gave power of entry, it would be a relatively simple matter for the new Conservative Government to adopt it. They tacked the issue on to the freedom Bill rather at the last moment.

The modern Conservative Party, in its manifesto—Modern Conservativism: Our Quality of Life Agenda—which it passed to me before the election, said:

“A Conservative Government will cut back the intrusive powers of entry into homes. Public bodies (other than the police and emergency services) will require a magistrates’ warrant, and approval for such a warrant will be restricted to tackling serious criminal offences or protecting public safety. Labour plans to give bailiffs powers of forced entry into the home to collect civil debts will be revoked”.

I thought that I should go to see my noble friend Lord Henley with his new Bill team and it was an amazing repetition of what happens. I went to Room 5, which is just up the Corridor. The first time I went was to see the noble Lord, Lord West, with his officials. I sat in the same seat and they were very nice, smiled at me and said that it was not convenient to do anything about this at this time, as it was too complicated. I sat with my noble friend Lord Henley, with different officials, just a few days ago. I sat in the same seat and he said that the Government were not prepared to accept any amendments. It was an exact replica and I wondered why—was this because it was too complex or was there some other motive? I thought probably the motive was that they really did not want to be bothered with it. Frankly, the Protection of Freedoms Bill is an enormous great Bill in its own right. Why should they go back and bother on these issues?

However, these issues are important and with my first amendment you would have had a list in the Bill of the powers of entry. It took a very long time to get that list together—started mainly by Professor Richard Stone of Lincoln University, who produced the authoritative book on it. It was then added to, not by Ministers of whom I asked questions and questions because their answer was, “The information is not centrally available”—more or less they did not know. The Home Office, to give it its due, stepped in and together we managed to produce the schedule of more than 600 Acts with powers of entry that was published and put in the Bill. Amendment 131 says:

“The Secretary of State shall ensure that the list of powers of entry”,

in the schedule should be published and I thought it should be in the Bill.

The Minister said it was not a good idea. However, I thought it was a good idea that it should be published so I put that in here and I then tabled the full schedule. I had to snip out the ones I thought had gone—and this is a totally amateur activity but “amateur” means someone who loves his subject. I then thought if I produced this, it might help. The Minister said he did not want it in the Bill because every time one had to be amended it would need primary legislation. I said there was a way round it without doing too many Henry VII or Henry VIII powers or whatnot and my great supporting team in the Public Bill Office produced a very simple clause which is my other amendment—it says effectively you can amend by secondary legislation. Then I was told that they did not want to amend by secondary legislation either. They did not want to amend at all. I wondered what one could do so I introduced another amendment. I thought the Government themselves should publish a list and put it in the Bill—and I still believe that should be the case—not just leave it hidden away in some website that is extraordinarily difficult to access.

I then suggested to myself that maybe there was another way this could be done. I thought, “Let us go back to where we came in”. I asked every ministry what their powers of entry were. At Second Reading I told the noble Lord, Lord Bach—who was very kind and helpful—what his powers of entry were and I put them in the Library. However, a Back-Bencher is not allowed to put anything in the Library officially. Only Ministers can do that. I had prepared a 200-page document that takes in all the history of this. I am going to ask the Minister if he will put it in the Library. I lent it to the Home Office Bill team who read it and left no dirty fingerprints on it whatever, so it was obviously not very thoroughly read and I brought it back. In that is a complete schedule.

I thought that maybe we should return and say that as all these Acts, primary and secondary legislation, relate to ministries and as the ministries keep changing let us pass the responsibility back to the individual Minister to produce, regularly—I have said at the start of every parliamentary Session but it could be every week, every month or whenever—a schedule of all Acts and secondary legislation containing powers of entry for which his or her department has responsibility.

It is pretty difficult for the Home Office to put all these things together because things are happening often without its knowledge. It produced a really remarkable document available on its website that lists them all. However, householders and others ought to have the right to know if someone calls and says they have a right to come in under what right that is, hence the concept of a code of conduct, which I put in before. The Minister did not really want my code of conduct. All I was trying to do was to suggest things that should go into it.

My noble friend Lord Marlesford will mention that it was a long time ago but my great mentor when I arrived in the House of Lords was Lord Hailsham. He was the only one I met and he asked me, “Who are you and what are you doing here?” and actually gave me tea. One of his specialist subjects in those days was powers of entry. My noble friend will raise this later. It is built into me that I do not want to wear a pass or be forced to carry an identity card. I want to be who I am. Even when I went to have my biometric details done for the test identity card, it said, “Not known, not recognisable”. My fingerprints did not seem to work and I had a bit of fear.

I have introduced this amendment in the hope that the Minister will take some action. It would be nice if these Acts of Parliament were in the Bill. If that is not possible, maybe each of the departments could have an instruction to produce a schedule from time to time and provide a direct reference other than by e-mail. As a member of the Information Committee of your Lordships’ House, I can advise you that your Lordships are not terribly switched on. Many do not even have an e-mail address and probably only about 50 per cent could be determined to be electronically active.

Fortunately, I have here on my new trial iPad all 200 pages—I just pressed a button and was absolutely shattered. I recommend that all noble Lords should have such an opportunity. That is not corruption but just a simple statement. I ask the Minister to try to find a way. I am extremely grateful to the Labour Party. In Opposition, it accepted what I proposed, discussed it and was very constructive and sympathetic. We ended up with a piece of paper with a lot of things on it that made sense. The question is how you impart that information in the right way to the right people to provide them with protection. I beg to move.

[Baroness Royall of Blaisdon]

My Lords, I pay tribute to the noble Lord for his diligence and doggedness on this issue. I find it extremely useful to have a list of primary and secondary legislation and Acts which bear relation to powers of entry. Maybe it is because I am now freed of the shackles of power that I am rather attracted by the notion that a list should be published in a schedule so that people can clearly see it. My one difference with the noble Lord is on his Amendment 136, in which he suggests that the Secretary of State should have a power to amend the list by a negative resolution. While I trust Ministers and would not wish to cast any aspersions on them, some extremely important powers of entry and Acts of Parliament would be cited in the list. It would be proper for any Minister to have to come to the House and be accountable, so I would be in favour of an affirmative rather than negative resolution.

[Lord Henley]

My Lords, my noble friend Lord Selsdon came to the House in, I think, 1963, as a member of the Independent Unionist Peers. I came somewhat later in 1977, and also joined that group. I was obviously not independent enough as soon after that they were rechristened the Association of Conservative Peers. Obviously, I take note of and am interested in what my noble friend said on these matters. Like the noble Baroness, Lady Royall, I pay tribute to his diligence and doggedness in this matter over the last 48 years—or is it even longer than that? The noble Lord has battled with these matters for a long time.

I was also fascinated to hear what he said about placing things in the Library. That is something that I have said on a number of occasions. I never knew that it was purely the prerogative of Ministers. If that is what my noble friend said then that must be the case.

--- Later in debate ---

[Lord Armstrong of Ilminster]

My Lords, Amendment 143 is in my name and those of the noble Baroness, Lady Liddell of Coatdyke, and the noble Lord, Lord Faulks. Clause 57 establishes on a firm and clear basis the principle that a terrorist suspect should not be detained without being charged for longer than 14 days. Fourteen days is already a very long period to detain someone without charge. For any other offence, the maximum would be no more than four days. The case for a longer period in respect of terrorist suspects is justified only by the especial nature and problems of terrorism.

Over the years, there has been much debate about how long the period should be. At one time under a previous Administration, a maximum of 90 days was suggested. This Bill now sets the maximum period at 14 days, to be extended only in the most exceptional circumstances. It has not been necessary to extend the period of detention without charge beyond 14 days at any time in the past five years. Nevertheless, it remains the view of the Home Secretary, as well as of the police and the Director of Public Prosecutions, that the possibility that it might one day become necessary to do so cannot be excluded and should be provided for.

The Government took the view that, in order to make sure that the period of detention would be extended only in the most exceptional circumstances and only when really necessary, there should be no standing power to extend the period by order, and that it should be extended only by the introduction of emergency primary legislation if and when the need arose. They prepared draft Bills to have ready for introduction when required; and they invited a Joint Committee of both Houses of Parliament to give the draft Bills pre-legislative scrutiny. That committee, of which I had the privilege of being the chairman, believed that the Government were right to wish to create a contingency power to extend the maximum period for pre-charge detention of a terrorist suspect beyond 14 days up to not more than 28 days in truly exceptional circumstances.

The committee understood and respected the Government’s reasons for proposing that this power should be provided by emergency primary legislation, to be enacted only when the need arose, so that temporary extensions of the period of detention would happen only in very exceptional circumstances, and so that the need for and the provision of the power could be subject to parliamentary scrutiny. We believed, however, that the parliamentary scrutiny of such emergency primary legislation to this effect would in practice be very seriously circumscribed. We thought that it might prove in practice to be very difficult to explain to Parliament the reasons for introducing it without either disclosing information that would endanger security or public safety, or information that would prejudice the right of a suspect or suspects to a fair trial. This could make the process of justifying the legislation almost impossible for the Secretary of State and totally unsatisfactory and frustrating for Members of both Houses of Parliament. We also thought that there would be an unacceptable degree of risk that it would sometimes be almost impossible to introduce and pass the legislation required within a sufficiently short period of time when Parliament was in recess and would have to be recalled. It would, of course, be absolutely impossible to introduce primary legislation during the period between the Dissolution of one Parliament and the opening of a new Parliament.

We therefore concluded that emergency primary legislation, as exemplified in the Government’s draft Bills, did not offer a satisfactory solution, and we recommended a new order-making arrangement, under which the Secretary of State would be authorised to make an executive order if need arose to extend the period of detention of terrorist suspects without charge to not more than 28 days for a three-month period, if exceptional circumstances applied, subject to strict safeguards and subject also to the agreement of the Attorney-General.

In Clause 58 of the Protection of Freedoms Bill, the Government have accepted the committee’s recommendation in part and have made provision for temporary extensions of the period of detention by executive order in the period between the Dissolution of one Parliament and the first Queen’s Speech in the next. However, they are proposing to rely exclusively on the introduction of emergency primary legislation when Parliament is sitting. I and the noble Lords who were members of the Joint Committee and who have put their names to this amendment remain of the view that the difficulties of introducing emergency primary legislation might be insurmountable even when Parliament was sitting, and that there needs to be a fallback or fail-safe provision allowing the Secretary of State to make an executive order if in those circumstances it is really necessary to extend the period of detention of a terrorist suspect or suspects for longer than 14 days.

Our amendment is permissive, not mandatory. It would not prevent a Secretary of State introducing emergency primary legislation if he or she were satisfied that he or she could safely and effectively do so. It would allow the Secretary of State to proceed by means of an executive order even when Parliament was sitting, with the concurrence of the Attorney-General if time constraints, risks to security or public safety, or the risk of prejudicing a suspect’s right to a fair trial, made it impossible or impracticable to introduce primary legislation. The safeguards will be the same as those applying to an executive order made at a time when Parliament had been dissolved. The principle that there should be an alternative to the introduction of emergency primary legislation is already established by Clause 58 of the Bill as it stands. The amendment that we are proposing is a modest extension of that principle—permissive, not mandatory; it does not seek to establish a new principle.

I should not like to be the Secretary of State who had to explain to Parliament and to the country after a terrorist incident in which innocent people had been killed or injured that the incident could have been prevented if only the Protection of Freedoms Bill had been enacted as improved by the acceptance of this eminently reasonable cross-party amendment. I beg to move.

[Baroness Royall of Blaisdon]

My Lords, I support the amendment tabled by the noble Lord, Lord Armstrong, and other members of the Joint Committee. It is an eminently sensible amendment because the Government have rightly recognised the practical impossibility in certain circumstances of emergency legislation, hence the introduction of Clause 58. However, as the noble Lord, Lord Armstrong, said, there remain real concerns over the workability of the Government’s proposal.

We believe that there is a serious risk of jeopardising a fair trial if Parliament is to be provided with enough information to properly scrutinise the necessity of the use. It seems as though it would be practically unworkable because, as the noble Lord said in his introductory statement, there would be a need to introduce and pass legislation with too short a timeframe to enable proper scrutiny and accountability. The scrutiny of legislation within such a short deadline would appear to be a dangerous way to legislate because the time pressures and state of emergency would undermine proper and dispassionate scrutiny of the legislation. By prescribing the use of an emergency power too tightly, within the most serious situations, the sheer use of the power would indicate to any future jury the unusual gravity of the case and therefore prejudice its views. We support the amendment moved by the noble Lord, Lord Armstrong.

[Lord Henley]

My Lords, I am grateful to the noble Lord for his detailed consideration of this clause, and I thank him for his letter of 16 November in which he provided a detailed explanation of the reasons behind his amendment.

The amendment would extend the circumstances in which an order could be made under Clause 58 to increase the maximum period of pre-charge detention in relation to terrorist suspects from 14 to 28 days. We have made it clear that we believe that the maximum period for pre-charge detention for terrorist suspects should in the majority of circumstances be 14 days. Given that no suspects have been held for longer than 14 days since 2007, it is evident that such a long period is not routinely required.

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[Baroness Stowell of Beeston]

My Lords, the Committee will be aware that the Government made a remedial order—the Terrorism Act 2000 (Remedial) Order 2011—earlier this year to replace the stop and search powers in Sections 44 to 47 of the Terrorism Act 2000 with a more targeted and proportionate power. That order will cease to have effect when, subject to parliamentary approval, Clause 61 of the Bill comes into effect.

The Joint Committee on Human Rights issued two reports on the Terrorism Act 2000 (Remedial) Order 2011. It recommended in both reports that the Bill should be amended to clarify that a senior police officer making an authorisation in respect of the new stop and search powers must have a reasonable basis for not only their suspicion that an act of terrorism will take place but also their view that the authorisation is necessary and proportionate to prevent such an act. The Parliamentary Under-Secretary for Crime and Security responded to the Joint Committee’s second report stating that he would consider whether the Bill should be amended. I can confirm today that the Government accept the Committee’s recommendation, which is implemented by this amendment.

I should stress that Amendment 146 is without prejudice to the construction of “considers” elsewhere in the Terrorism Act 2000. In the particular context of this provision in the Bill, we are merely emphasising—in response to the Joint Committee’s report—the implicit meaning that consideration must be reasonable so that the intended meaning is clear to all, including the courts. We feel this clarification may be helpful given the contrast between “reasonably suspects” in the first part of the test for authorisation and “reasonably considers” in the second.

The amendment to Schedule 6 makes a parallel change to the stop and search powers in Schedule 3 to the Justice and Security (Northern Ireland) Act 2007, as amended by that schedule. I beg to move.

[Baroness Royall of Blaisdon]

My Lords, we welcome the Bill’s provisions in relation to stop and search in general. We also welcome the amendment before us today. Stop and search is an important police tool and was introduced for a very good reason in response to the changing security environment. However, as actions this summer have shown, community cohesion and the effectiveness of policing depend on public confidence. We know, for example, from the interim report of the Independent Riots, Communities and Victims Panel, that stop and search was cited as a major source of discontent with the police. This discontent and concern was widely felt by young black and Asian men specifically. It is absolutely right and proper that this government amendment introduces the concept of reasonableness. I wholeheartedly support the Government in their amendment.