Terrorism Act 2006 (Disapplication of Section 25) Order 2010

Lord Brett Excerpts

Monday 19th July 2010 Lords Chamber

I very much welcome those comments from the Home Secretary, her willingness to work on a cross-party basis—this should not be a partisan issue—and her clear indication that, for her, the default is 14 not 28 days. We await the counterterrorism review with considerable interest, so I, too, am prepared not just to take a deep breath but to hold my nose and not to oppose the order today.

[Lord Brett]

The Opposition support the order so I shall not delay the House too long. However, our support comes with something of a health warning. The contribution from the noble Baroness, Lady Hamwee, highlights this.

In the past few days in respect of various other proposals to review, Members on all sides of your Lordships’ House have sought to persuade Ministers to speculate on the outcome of the examinations that have taken place and have been rightly rebuffed. Indeed, the noble Baroness, Lady Neville-Jones, refused to speculate on the outcome of the anti-terrorism review that we debated last week. Accordingly, I am not sure that it was wise of the Home Secretary to indicate a personal preference for 14 rather than 28 or any other number of days when this order was debated in another place. To be fair, she said that she did not think it right to pre-empt the review, which is the most important issue. The noble Baroness, Lady Neville-Jones, spelt out cogently the risk that still exists.

The risk has not diminished in the past year at all. There has been no diminution in the risk of terrorist activity. Indeed, in Northern Ireland there has been an increase. The threat level remains severe and the police and the DPP support the continuance of the 28-day provision. It is a year since its renewal—I accept that that is why we are renewing it, albeit for six months, as it is a temporary provision. Nobody in your Lordships’ House would be happier than us, on these Benches, if we found the risk so diminished that the requirement for any pre-charge detention could be removed completely.

We have learnt more in the past year, by means of Operation Overt, about the so-called liquid bomb plot involving the planned destruction of seven passenger aircraft flying to North America. In that case, pre-charge detention beyond 14 days was necessary for six people. There was Operation Pathway in Greater Manchester, which was raised in the debate in the other place a year ago, and we know that that plot was successfully thwarted. We understand much better that it was a serious and advanced plot. These cases explain why, to date, 28 days has been deemed necessary. Noble Lords on all Benches will be happy to see that reduced, I am sure.

I am not sure how this argument can be taken. It is cited that there are few cases, which means that the power is not required. We are also told that there is a natural propensity—Parkinson’s law—in security that the more time you give people, the more time they will take. I would be astonished if that were the case in security issues. I would be very surprised if the security services and the police were not aware that smart lawyers, many of whom represent clients in courts and are Members of your Lordships' House, are willing to demolish any case built on a prevention of charging when charges could be brought.

It is the right of all Governments to review and it is right to review this order annually. The question is whether in the past year sufficient has happened to persuade us that the threat is diminished. That is where the health warning comes in. I am not sure that I like the idea of a default position of 14 days before a review takes place and before all the key authorities involved have been briefed and made their contribution. Therefore, it is important that the review should be evidence-based. Ultimately, sound judgment is required, which is what we expect from our Home Secretary and our Government, to establish whether we have reached the point where we can withdraw the 28-day provision or impose alternative powers. I am sure that the noble Baroness, Lady Neville-Jones, with her knowledge, experience and integrity, will wish nothing less. I support the Motion.

[Baroness Neville-Jones]

My Lords, I thank noble Lords for their characteristically thoughtful contributions. The purpose of this short extension is to enable the Government to have enough time to do two things. The first is to look at the legislation concerning pre-charge detention and other counterterrorism legislation that we want to review in the round and in relation to each other. The second is to look at the existing operation of the 28-day regime. I was asked, for instance, whether post-charge questioning, which has not yet commenced, will come into operation. That is precisely one of the factors which we want to look at, together with a number of other provisions which seem to us to be relevant in deciding whether we can reduce the maximum time for pre-charge detention.

I mentioned “contingency” and the Civil Contingencies Act. I stick by my comment that, given the threat about which I will say something in a moment, we cannot say with absolute certainty that a time longer than 14 days might never be needed. Equally, we take the view that the current evidence tends to suggest that we ought not, if we can avoid it, continue with the current maximum length of pre-charge detention. However, we want to look at that and at whether it is possible to put in place some kind of contingency that will enable us, with safety, to reduce the normal maximum time.

A number of noble Lords asked why the UK had to have so long a time when other systems somehow managed to do with less. Like other Members of your Lordships' House, I greatly value the work done by organisations such as Justice and Liberty. However, when one is comparing systems, it is right to do a thorough job and, as the noble Lord, Lord West, said, it is not entirely fair to compare the UK system with, say, France’s. Indeed, even among common-law countries, the practice is not uniform. In Australia, for example, there is a 14-day limit that can be significantly extended by something called the stand-down time.

We should not forget that the threat remains. I very much hope that, by other flanking measures which the previous Government put in place and policies which we continue, we are managing to harden our targets and to become a more difficult target for terrorists. We also know more about the enemy than previously. All those are relevant factors in considering whether it is right and safe now to reduce the maximum time for our pre-charge detention.

The noble Lord, Lord Pannick, among others, asked whether there was any evidence for the operation of the 28 days and whether history showed that we needed it. He also asked whether it was right, and in accordance with the ECHR, that the suspect was not given sufficient information at an early stage about the charge. That is not the case. The grounds of arrest are put before a defendant when he goes before the magistrate, and he must go before the magistrate no later than 48 hours after arrest. There is no question that people's rights are being violated in that respect. Much as we would like not to have the legislation if we could—the object of the exercise is to see whether we can dispense with it safely—it is human rights-compliant. I hope that the House will accept that in prolonging the provision for a period while that detailed and careful examination takes place, we are not violating the rights of any current or future defendant, while protecting the public.

I have one last point to make. A noble Lord asked about the difference between the varieties of terrorism that we face. It is disturbing that we have an increase in terrorist activity in Northern Ireland. The nature of that terrorism is somewhat different from the Islamist terrorism that we face, which is one reason why we have the 28-day provision in place at the moment. We will look at introducing other measures in conjunction with a different regime on pre-charge detention, combined with our assessment of how we stand in relation to the threat. Our examination of the legislation will take all those factors—the operation of the legislation itself, our view of the threat to us and our ability to withstand the threat—into account. All those are relevant factors in deciding whether we can find some other way to deal with pre-charge detention in normal circumstances.

With that summary, I thank noble Lords for their contributions and invite the House to approve the order.

Biometric Passports

Lord Brett Excerpts

Tuesday 13th July 2010 Lords Chamber

[Baroness Neville-Jones]

My Lords, I think the whole House will agree that secure passports are an extremely important part of combating terrorism. It is certainly the case that there are no exit controls at the moment but it is intended that they should come into operation as part of the e-Borders programme.

[Lord Brett]

My Lords, first, the noble Baroness reminded us that exit controls were removed. Can she remind us which party was in government when they were removed? Secondly, she said that we are going to strengthen the security of passports. Can she tell us how?

[Baroness Neville-Jones]

The existing facial biometric is a chip inside the passport, and that type of passport has been issued since 2006. It is possible, and we intend, to strengthen the security technology that surrounds that chip to decrease the ability of any forger in any way to clone it or counter its security.

Counterterrorism and Security

Lord Brett Excerpts

Tuesday 13th July 2010 Lords Chamber

[Lord Brett]

My Lords, I am grateful to the noble Baroness for repeating the Statement made by the Home Secretary in another place. It is worth recalling that the terrorist legislation passed in 2006 had all-party support, driven by the widest understanding that the only response to al-Qaeda, and to protect our people from a potential repeat of the horrors of the 7/7 tragedy, was to counter the threat and defeat it. The all-party support was buttressed by an endeavour on the part of the Government at the time to ensure the widest consensus and to consult extensively to that end.

Five years later, the threat has not diminished, as the Prime Minister reminded Parliament and the country in his Statement on 6 July. This leads to my first and most important question. Will the Minister confirm that this review is not being held to scale down the powers needed to address the severe security threat that we still face? To that end, will she give her latest estimate of the number of terror suspects engaged in complex plots? Will she say how many such plots have been disrupted since 7/7? Will she ensure that the same spirit and degree of consensus-seeking takes place in reviewing anti-terrorist legislation that characterised the approach to the 2006 terrorism legislation? Will the Government publish the terms of reference of the review, and if so, when? Also, will the review encompass the measures announced last week in respect of Section 44? All noble Lords will agree that the first duty of government is to protect the public. However, I am sure they will also agree that that must be balanced with the protection of civil liberties.

That leads me to a final question and a comment on what now seems to be a mantra in government: to blame everything, including the weather, on the previous Government. I think that there is a slightly partisan element in the penultimate paragraph of the Home Secretary’s Statement. She lays great stress on the “mistakes of the last Government”, while warmly commending members of the police, security and intelligence services on their “bravery, patriotism and a strong sense of duty”. I strongly endorse that tribute, as will all noble Lords. However, I should like to ask a question which no one in government is better qualified to answer than the noble Baroness, Lady Neville-Jones. Does she agree that much of the strengthening of anti-terrorism legislation was in direct response to the request of those same brave and patriotic police, security and intelligence services and their need for better weapons and resources to tackle those who would perpetuate another 7/7 or perhaps something worse? Alternatively, does she believe that it was thrust upon unwilling police, security and intelligence services? Accordingly, can she assure the House that the weapons and resources available will not be diminished as a result of the proposed review?

Freedoms and Civil Liberties

Lord Brett Excerpts

Thursday 8th July 2010 Lords Chamber

[Baroness Neville-Jones]

My Lords, I have great sympathy with the principle enunciated by my noble friend. This is a country that stands for freedom of conscience and the right of individuals to exercise it. We are certainly committed to upholding those principles and to allowing people such freedom to hold religious beliefs. However, we have to strike the right balance and ensure that we do not allow discrimination on any grounds. When it comes to offering public services, the law of the land must be obeyed. We do not have plans to change the current law, the effect of which, when it comes to Catholic adoption agencies, will take effect when the Equality Act is commenced. I see no contradiction, however, between that and the principles enunciated by my noble friend.

[Lord Brett]

My Lords, the noble Baroness declared war on big government. She also said in her previous answer that she saw no conflict with her answer to the preceding question. It rather conflicts with her statement of a war on big government. At the same time, in law and order, we are looking at 5,000 fewer prison officers and a 25 per cent cut in the police budget. Can the noble Baroness explain why that is not a lessening of the war on crime and why, in that area, the Government are doing far less their predecessor?

[Baroness Neville-Jones]

I think we are straying from the Question. I think everyone would accept that we have an extremely tight financial situation. It is not possible to continue with all departmental budgets at their previous levels, which were not funded, in any case, by the previous Government. It is for the police to decide where the operational effect will take place. We are, however, absolutely committed to effective policing.

Terrorism Act 2000

Lord Brett Excerpts

Thursday 8th July 2010 Lords Chamber

[Lord Brett]

My Lords, I am grateful to the noble Baroness for repeating the Statement made earlier in the other place by the Home Secretary. An issue was raised in the other place—about which the Home Secretary said she had no knowledge and would investigate—on the mystery of there being two written Oral Statements circulated in advance. One, obviously, was supplied by the Home Secretary immediately prior to her Statement. However, an earlier draft—circulated by whom I know not—came into my possession and the possession of other Members, presumably, of your Lordships’ House and the other place. When compared with the draft, the Oral Statement made contained 23 amendments. All 23 amendments were deletions— significantly so in relation to Northern Ireland—and therefore the Statement is either a masterpiece of editing and brevity or it is truncated. As I said, the right honourable lady the Home Secretary said that she would investigate the situation and report. It would be very useful if that explanation could be provided to Members of this House as well as of the other place.

In a sad way, it has been a memorable week. Yesterday was the fifth anniversary of 7/7 and it reminded us all of the threat that the country faces and the tremendous work of the security services and the police in protecting our citizens from harm. Tributes have been rightly paid to the dedicated work of both the security services and the police. I am sure it is everyone’s intention, including that of the coalition Government, that we should not do anything deliberately that would diminish their ability.

One part of the Statement surprises me—that is the statement that had the Home Secretary been the Home Secretary at the time of the original judgment in the European Court, she would not have sought to appeal it. The court judgment was based on the way in which Section 44 powers were used by the Metropolitan Police some years ago. The Met has now reviewed the situation and there has been a tightening up of the procedures in the intervening period. More significantly, the Home Secretary will be aware that the UK courts, including the House of Lords, had rejected arguments that the Quinton and Gillan case represented a breach of Article 8. In particular, the Law Lords were doubtful whether an ordinary superficial search of a person could be said to show a lack of respect for private life. Even if Article 8 did apply, they said the procedure was used in accordance with the law and that it was impossible to regard a proper exercise of the power as other than proportionate when seeking to counter the great danger of terrorism. The Home Secretary will also be aware of a report from the Home Affairs Select Committee in 2005 which found that there was no substance in the allegation that there was targeting of particular communities.

Against all those judgments of British law—by which some members of the coalition, when in opposition, put greater store than any European judgment—it seems rather surprising that had the Government been the Government at the time they would not have proceeded to appeal. However, it seems sensible in the present circumstances and in the light of the judgment to change the test for authorisations from “expedient” to “necessary” and to use the test of “reasonable suspicion”.

We have concerns about the intention to restrict Section 44 powers to the searching of vehicles. I know that it is an interim proposal and I have heard the Home Secretary explain why she wanted to make a Statement as quickly as possible to the House. She said that since last Wednesday she had consulted, but it was not clear to me who had been consulted and what strength had been given to the advice. I therefore seek clarity on a number of questions.

What is the view of ACPO—the practitioners—in this matter? What is the view of the Metropolitan Police Commissioner on this new change? What is the view of the Police Service of Northern Ireland? What is the view of the noble Lord, Lord Carlile, who has given great service in the role that he has played? Why do the Home Secretary and the Government believe that it is necessary to go this far in responding to the European Court’s judgment? Are we saying that nothing less will suffice? Will she publish for consultation the list of options that will be considered in the review mentioned by the noble Baroness so that we can see what alternatives might be subject to debate? Concerns have been expressed over time about the use of stop and search. We are aware of those, which is why a considerable tightening-up has taken place.

As the Home Secretary rightly said, we are always talking about the balance between security and human and civil rights. However, it seems to this side of the House that there is a prospect of the police and the security services being asked to protect us over the coming years with fewer officers, diminished resources and now potentially restricted powers. The coalition agreement was clear on some of these issues but, in all honesty, it is not the coalition agreement that will keep us safe; it will be the security services and the police. Although I think that it is right that Parliament should be paramount and that politicians should make the judgment, politicians also have a considerable responsibility to listen to those who, day to day, take the risks and deal with the many problems that we have in this area. I have asked these questions so that we have clarity on consultation. I will be interested to hear the noble Baroness’s response.

[Baroness Neville-Jones]

My Lords, I thank the noble Lord for his response. His first point was about what happened with the draft. As I understand it, this was one of those things that happen in government. The earlier draft, which the Home Secretary had not seen and had not approved, somehow escaped into the parliamentary Chamber, but it was not her view of what she needed to say. The Statement that I read is what the Home Secretary thinks is the correct position.

I entirely share the noble Lord’s sentiments about the tribute that we should pay to the police for the work that they do. That was particularly apt yesterday, which marked an occasion in our national life when we saw the effectiveness of the police, the resilience of the emergency services and, indeed, the bravery, courage and common sense of ordinary people. In essence, that is what will, in the end, get us through this period of international threat to us.

The noble Lord picked up the sentence in the Statement relating to our view that we would not have appealed the judgment had we been in office. He rightly said that the domestic court had previously rejected some of the arguments. However, it is fair to say that, in opposition, both parties of the coalition had been extremely critical not only of the excessive use to which the Metropolitan Police had put these powers but also—this is the second point, which the noble Lord did not mention—of the fact that the powers were drafted too widely. In our view, this law is defective. That does not mean to say that there is not legitimate need and that there may not be circumstances in which a power of this type will be needed. That is one of the issues that we will take up in the review.

The Home Secretary made it quite clear that this is interim guidance for an interim situation. The police cannot be left in legal limbo, which is why it is necessary for us to take these measures now. We have done so in consultation with the police. Their main concern was to ensure that they were operating legally, because not to be doing so would clearly leave them in considerable difficulty—indeed, in legal peril. They needed clarity and guidance, which is what they have been given. We will continue our discussions with them about the powers that may be necessary.

As for the views of others, the noble Lord, Lord Carlile, has told me that he agrees with the measures that have been taken. He takes the view that the position that has been arrived at is in substance desirable. We will look at whether that is the case and at whether there are contingencies in which it will be necessary to have some other reserve power, although we have not come to any judgment on that.

The noble Lord asked whether we will consult during the review process. Consultation will be built in to the review process. We do not intend that it should be only an internal governmental activity.

The final point was about the need to ensure that the security services and the police have the resources to keep us safe. Of course that is right. I hope that there is nothing between the two sides of the House on the question of taking national security seriously. However, we have to recognise that there is a difficult financial and public expenditure situation, from which the police cannot be entirely immune. None the less, I have confidence that the police take their priorities seriously and we in the Government will certainly act with due care in relation to public expenditure choices that directly affect national security.

[Lord Brett]

My Lords, it seems to me that much is placed on this being interim and on the review. Will the noble Baroness indicate the timescale? For how long will these interim measures be in force? When can we expect the consultation to be complete? When can we expect our security forces to have a clear understanding from Ministers of what is required for the future?

[Baroness Neville-Jones]

I do not think that the police have any doubt about their position. That position will continue for as long as we are not, in parliamentary terms, able or willing to put in place any other legislative provision. As I say, that will be a matter of consideration in government and consultation. There are a number of related issues in the whole area of counterterrorism and it does not make a great deal of sense to take decisions on one in isolation from considering the impact on others. A wider group of powers need to be considered together. Our aim is to ensure that as much of this package as possible is in the freedom Bill. Therefore, we are talking about a timescale in which the legislation will certainly begin its passage this year.

Shootings: Cumbria

Lord Brett Excerpts

Thursday 3rd June 2010 Lords Chamber

[Lord Brett]

My Lords, I thank the noble Baroness for repeating the Statement made by the Home Secretary in another place, and I am sure I speak for the whole of this House when I say that we join the Home Secretary in sending our condolences to all those who are affected by this tragedy in west Cumbria.

A number of noble Lords live in the county of Cumbria—the noble Lords, Lord Henley, Lord Judd, Lord Inglewood, Lord Clark of Windermere, Lord Dubs, me and others—and we have seen at first hand the resilience of west Cumbria in the face of the devastation of last year’s floods, the tragedy of the loss of young people’s lives in a major road accident a week ago, and now this tragedy. We also share the Home Secretary’s admiration for the speedy response of the emergency services and the police yesterday to a wholly unplanned and unforeseen tragedy. It is a tribute to them that the Civil Nuclear Constabulary and the Lancashire and Cumbria constabularies could work so quickly together, undoubtedly reassuring the natives of Cumbria in that very difficult situation.

The co-ordination at that stage has proved to be wholly successful. Hopefully that will continue. I note the comprehensive nature of the Home Secretary’s Statement and that, if necessary, additional funding will be made available. It seems to be almost beyond doubt that it will be. The 100 detectives who are being deployed from Cumbria, and perhaps from elsewhere, on this case alone will dig deep into the reserves of that relatively modestly sized police force, and the news that the local authorities will also be offered assistance is welcome.

Some questions need to be asked, but I am not sure that now is the time to ask them. Basically, the only question that comes to my mind immediately is that there are health checks by doctors when people apply for licences to own shotguns and so on, but are people who go on holding those licences adequately supervised afterwards? After all, the incidents that have occurred have not happened immediately after a licence was offered and accepted by an individual. I hope that those questions will be dealt with as the policy inquiry fulfils its task and, as the Statement says, as the Home Secretary and the Government inquire into this further.

The resilience of west Cumbria is being tested, and the Home Secretary’s visit tomorrow will be appreciated. I understood from listening to the Statement in the other place that the Prime Minister will also go. That will give great comfort to the people. I also join in the tribute to Jamie Reed, my honourable friend the Member of Parliament for that area, who manfully and most effectively stood up and represented his constituents in the floods and now has that task again.

Basically, our task here today is one of solidarity with the people of west Cumbria. As the noble Baroness said when she repeated the Home Secretary’s Statement, these tragedies are few and far between but we must learn the lessons. At this moment, however, our thoughts go out to all those who are affected, as does our sympathy for the relatives of those who were injured and killed.

[Baroness Neville-Jones]

My Lords, I thank the noble Lord for his sympathy for those who have suffered. I am sure that he expresses the sentiment of the whole House, to which I add my own. Hutton Roof is in Cumbria, so I too have connections with the county and feel this loss personally.

The noble Lord is quite right that this is a small force with a big task ahead of it. As he rightly said, the Government will make sure that it has the resources necessary to carry out that task, and we will look, as I have said, at the lessons to be learnt, but the House will probably agree that we should not draw conclusions precipitately. As he also rightly said, the resilience of west Cumbria is being tested. I thank the House for the understanding that has been exhibited. I have no doubt that we will hear more when the Prime Minister and the Home Secretary have visited in person.