Counter-Terrorism and Sentencing Bill

Debate between Lord Anderson of Ipswich and Lord Thomas of Cwmgiedd

Consideration of Commons amendments
Thursday 25th March 2021 Lords Chamber

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

My Lords, behind today’s limited and so far rather civilised debate lies perhaps the most divisive and hard-fought civil liberties dispute of this century. In the frenzied weeks after 9/11, we saw the British answer to Guantanamo—a scheme of indefinite detention in Belmarsh prison at the behest of the Executive for foreign nationals who could be neither deported nor put on trial. When that scheme was declared by our highest court to discriminate unlawfully on grounds of nationality, the control order regime of 2005, applicable to British citizens also, was put in its place.

Control orders were replaced by the more liberal TPIMs regime in 2011, after intense debate within the coalition Government. Then the pendulum began to swing back: relocation of subjects was restored in 2015, and this Bill, as it was first presented to your Lordships, would have allowed these uniquely draconian measures, now including the possibility of daytime curfews, to be imposed indefinitely and on the basis of nothing more than a reasonable suspicion of involvement in activity only indirectly related to terrorism.

It is not fashionable to claim that the institutions of our liberal democracy are in good health but, on this occasion, I suggest that they have succeeded in their function of resolving strongly felt differences in public opinion decisively, firmly and in a rights-compliant manner. Let there be no mistake: the measures about to be passed into law are severe and indeed draconian, as public opinion no doubt demands. But it is at least something that a 20-year struggle to reconcile the requirements of security and civil liberties, a struggle in which Belmarsh, control orders and TPIMs have been on the very front line, has been reduced to a dry-sounding choice between Motion A and Motion A1 on the Marshalled List.

In supporting the Government on the compromise that is Motion A, I first acknowledge the consistency and moral force of the Liberal Democrat position. The addition of the fifth year to the maximum duration of a TPIM may have been the straw that broke their back, and, as I indicated to the Minister, it came close to breaking mine. However, I hope that the noble Baroness, Lady Hamwee, is consoled by the fact that during the passage of this Bill her party has helped to restore two of its earlier vital achievements in government: the time-limiting of TPIMs and the requirement of at least a reasonable belief that a TPIM subject should have been involved in terrorism-related activity.

I further thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for co-signing the relevant amendments, and the Labour Front Bench for their support and votes—not perhaps a foregone conclusion, given that it was Labour which devised the original control orders back in 2005. I thank the Government for the equal flexibility which they displayed when confronted with the mood of this House, for the important assurances given just now by the Minister, in particular for the assurance that five years will not become the new normal, and for the accessibility and courtesy of all Ministers towards me. On one call with the noble Lords, Lord Parkinson and Lord Wolfson, and the noble and learned Lord, Lord Stewart, I was impressed to see that no less a figure than the noble Earl, Lord Howe, had also been fielded, presumably as a kind of sweeper in the event that any of his freshly capped young ministerial colleagues might be tempted to give away the ball. What drills are performed on the ministerial training ground I cannot know, but I mean it as a compliment to all concerned when I say that no intervention by the noble Earl came close to being needed.

I finish with a reference to the latest report of the Independent Reviewer of Terrorism Legislation, published on Tuesday and not, I think, previously brought to the attention of your Lordships’ House. Of Jonathan Hall QC’s 13 recommendations across the whole field of counter-terrorism law, numbers 9, 10 and 11 relate specifically to TPIMs. He recommended that the possibility of prosecuting TPIM subjects, not for breach of their TPIMs but for terrorism-related activity, be kept under closer review than is currently the case. He recommended that the cumulative period for which TPIM restrictions had already applied be expressly recognised as a factor going to their proportionality. He also recommended that legal funding be swiftly made available to all TPIM subjects for the purpose of participating in Section 9 review hearings, as appears, most unfortunately, not to be the case currently. That is the bare minimum, as he rightly recognised, for ensuring the access to court that can alone render these highly intrusive measures consistent with the rule of law.

Each of the independent reviewer’s concerns, as expressed in those three recommendations, can only be deepened by the extension to the maximum length of TPIMs that will be effected by this Bill. The Minister will, I am sure, tell us that the recommendations of the independent reviewer will receive careful consideration. But the Home Office has already had them for more than four months, and I notified the Minister this morning of my intention to mention them. I invite the Minister to go further this afternoon, by assuring the House that the Government accept these recommendations and will implement them.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, in view of the eloquent and comprehensive speech of the noble Lord, Lord Anderson of Ipswich, I can confine my remarks to three points. First, it seems to me that the position taken by the noble Baroness, Lady Hamwee, must be right as a matter of principle. Both the areas which the House has examined in detail—namely the burden of proof required and the length of time—are essential for ensuring that this is a regime that does not disproportionately affect the fundamental right of liberty.

Secondly, the considerable importance of the current amendment is that we have moved away from the prospect of orders of an indefinite renewal period. Not only would those have been discouraging and demoralising to the individual and made it more difficult to ensure that he could, on removal of the TPIM, return as an ordinary member of society, but, as importantly, they would have been perceived as unfair by the community. The perception of fairness by the community safeguards us to a much more considerable extent than any other matters.

Thirdly, I profoundly welcome the pragmatic approach of the Minister, supported as he has been in this by the noble Lord, Lord Wolfson of Tredegar, and the noble and learned Lord, Lord Stewart. It is wonderful that a proper compromise has been reached here and I thank them for their considerable part in bringing this about. It may not be perfect, but it gets rid of those areas that would have been most damaging to our civil liberties.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Anderson of Ipswich and Lord Thomas of Cwmgiedd

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

[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.

[Lord Thomas of Cwmgiedd (CB) [V]]

I can add very little to what has been so ably said in support of the amendment, to which I put my name. I support what is a very small change to the Bill because it is important that we hold the services, particularly the officers who will give these authorisations without any prior approval, to a very high standard. If they do not have high standards and things go wrong, the damage to the service concerned will be very serious.