Investigatory Powers

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 8th July 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I hesitated before putting my name down for this debate. Nine long years have passed since I was appointed the Intelligence Services Commissioner under RIPA, having acted before that as president of the successive tribunals that were set up to deal with complaints into the various intelligence agencies. I recognise that my experience is, therefore, already to be regarded as perhaps somewhat out of date. This is a fast-moving field, as has already been remarked. However, I want to say a word or two about one of the more substantial divisions of opinion between the two main reports that we are considering in this debate: namely, whether it is Ministers or judges who should be authorising invasions of privacy as provided for under the legislation.

First, however, I shall allow myself a broad reflection. I wonder whether any other noble Lords watched, as I did, on Sunday night, the truly heart-rending play on BBC 1, with Emily Watson playing the mother of a beloved 24 year-old daughter, Jenny Nicholson, who was massacred 10 years ago in the 7/7 Tube bombings. Frankly, nothing could more tellingly have brought to life the absolute imperative of Government doing all in their power to secure public safety.

Of course, there is always a balance to be struck between that imperative—the importance of ensuring that our intelligence agencies have all the powers they need in their never-ending struggle to protect us—and the need also to guard against excessive invasions of privacy. It is a balance required to be struck by reference to three critical touchstones that are provided for in the legislation: necessity, reasonableness and proportionality. However, in striking that balance, and before rejecting a particular application as unnecessary, unreasonable or disproportionate, surely it is appropriate to bear in mind the contrast between, on the one hand, the catastrophic consequences of a terrorist outrage such as 7/7, with the gross violations of people’s human rights that that occasions, and, on the other hand, the relative harmlessness of a privacy intrusion, even if later it might come to appear unjustified.

I speak of the relative harmlessness of an invasion of privacy because, in truth, that is how I see it. Had one lived in parts of eastern Europe with a Stasi-like security service in operation, I acknowledge that one might have seen it differently and in a rather more jaded or jaundiced light. Indeed, Mr Anderson recognised as much on pages 31 and 32 of his comprehensive and hugely impressive report, where he reflected on the marked differences of opinion between our own courts and the Strasbourg court on a number of privacy issues. He instances cases such as those on the retention of DNA samples—on that, I profoundly agree with the view expressed by the right reverend Prelate—and on stop-and-search powers, both of which I touched on in last week’s debate on human rights. For my part, I continue to believe that it is better to allow the occasional questionably justifiable invasion of privacy than to risk losing the chance of avoiding the next terrorist outrage.

I turn now to the question of who—Ministers or judges—should be responsible for before-the-event authorisations of privacy invasions. Let me make it clear at once that I am expressing my views specifically in relation to those invasions of privacy which are applied for by the three main intelligence agencies: MI5, SIS and GCHQ. I have direct experience of those. I say nothing about what are presumably the vast majority of warrants sought for what I think can fairly be called more routine law-enforcement purposes, of which I have no particular experience.

When, earlier this year, we debated the Counter-Terrorism and Security Bill, I unsuccessfully moved an amendment in connection with the proposed toughening-up of the TPIM regime to include what had originally been in the control order regime: provision for internal relocation—internal exile, as it came to be called. I advocated transferring from the Home Secretary to the High Court the primary responsibility for deciding on the facts whether the suspect in question had indeed been engaged in terrorist activity. That followed a clear recommendation by Mr David Anderson QC. However, the amendment was defeated on the basis that it should be for the Secretary of State and not the courts to assess all such matters in any context involving national security. I still happen to think that it was a pity in the case of TPIMs, but I take a very different view in the present context. Orders involving a suspect’s forced internal exile are, I would suggest, hugely more disruptive of people’s lives than what would result from any of the warranted intrusions and interferences with privacy which are under consideration in today’s debate.

I believe that warrants and other such authorisations which are sought by the security services for privacy invasions in the national interest for security, defence and foreign policy reasons should all continue to be decided by Ministers, and that judicial commissioners—let me say at once that I am entirely relaxed about the proposed merger of the various commissioners into a single composite body of retired senior judges—should continue, as in the past, to subject such authorisations to periodic retrospective judicial scrutiny; in other words, the judges’ role should continue to be confined to after-the-event review.

It was always my experience that the Secretaries of State and their dedicated warrantry units were acutely alive to the fact that their processes and at least a proportion of their decisions would be tested in detail and challenged in the course of such reviews. I always found those concerned to be frank and conscientious in their assessment of the various considerations in play. The present Intelligence Services Commissioner, Sir Mark Waller, in his annual report published just a fortnight ago, records at page 24 that he was impressed by the dedication and high ethical principles of all those working for the agencies, and that emphatically was my own experience too.

I take the opposite view from that expressed by the noble Lord, Lord Strasburger, on the need for a judicial warranty to avoid the issue, so it is suggested, of excessive numbers of unlawful warrants by the Secretaries of State. Rather, it seems to me preferable that a Minister should decide these applications, appreciating that he has to reach a defensible conclusion, than that, following the proposed change in the law, he should be tempted to say, “Well, a judge will decide this. Who knows, he may well grant it. It is certainly worth running the case before him”. I suggest that that could lead to less well-targeted warrantry than at present.

All questions of national security and the vital interests of the state should be for Ministers in the first place. Of course the process must be rigorously invigilated. That would continue to be achieved by strict after-the-event scrutiny on judicial review principles. In these sorts of cases there will often be room for two views. Questions of necessity, reasonableness and proportionality do not invariably admit of absolutely plain and categorical answers. The Home Secretary may well have wider perspectives than a judge, whether of the security dangers sought to be avoided, or indeed the possible political fallout from granting or refusing authorisations. The noble Baroness, Lady Manningham-Buller, touched on that aspect.

Commissioners should condemn an authorised intrusion of privacy in retrospect only if the case for it can fairly be said to have been clearly insupportable. In short, on this issue, I prefer the conclusions in the ISC report, but let me add that that does not detract from my profound admiration for the great bulk of Mr David Anderson’s work. He has served the nation well.

Psychoactive Substances Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 23rd June 2015 Lords Chamber

[Lord Cormack]

I said that it had some of the ingredients of a wrecking amendment because it would delay by at least a year the implementation of legislation that many believe to be urgent and necessary.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I am puzzled. Somebody has lost the plot and it is probably me. I do not see why this has to delay the legislation at all. I follow that in this group, Amendment 115—the last one—would indeed delay the legislation. It involves an insertion into Clause 57, which is about commencement. However, I do not think that applies to any of the other amendments. On the face of it, Amendment 5 seems to demand the implementation of the Bill. How would one review its implementation under proposed new subsection (1)(b), except by bringing it into force and letting it go ahead? Unless someone can explain why Amendment 115 within this group necessarily has to be passed, I do not see that any delay at all is involved.

[Lord Paddick]

My Lords, if I may assist the Committee, clearly these amendments can be taken separately and, if the Committee is minded to say that there needs to be a review and no delay in giving effect to the legislation, that is a matter for the Committee. We are talking about the Misuse of Drugs Act in that amendment rather than the Bill, if that helps the noble Lord.

Immigration: Detention

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 26th March 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, wish to pay tribute to my noble and learned friend Lord Lloyd of Berwick for his tireless work in this House over so many years, championing with such passion so many admirable causes. This is truly a fin-de-siècle occasion. Speaking as one who has been privileged for the last three years to have shared his room and plundered his wealth of knowledge and experience, I particularly will miss him.

I turn to the topic of today’s debate. I want both to congratulate the APPG on its inquiry report, with which in large part I sympathise and agree, but at the same time enter a defence for the judges who have been criticised in the report, notably on page 18, and again by my noble and learned friend Lord Lloyd in this debate. It is perfectly true that judges cannot be relied on to get the period of detention of all immigration detainees down to 28 days, the upper limit which the report recommends should be adopted, or indeed to the 60 days in all cases, as was advocated during the course of the Immigration Act. But without explicitly limiting legislation, it is not the fault of the judges.

There is no time today to explore the large body of case law on this subject. I would just mention a case in the Supreme Court in 2011, that of R (Lumba and Mighty) v the Secretary of State for the Home Office. It was one of the last cases in this part of the law with which I was concerned as one of nine justices, and the report on it is 115 pages long. This is a difficult area of the law.

Lumba brings me to the central point I want to make. There is all the difference in the world between the detention of those whom the Home Secretary is attempting to deport for whatever reason when they have absolutely no right to remain here, sometimes after a while, and those who are being detained pending an initial application for asylum. Lumba concerned the former category—foreign national prisoners having served their sentences of imprisonment. Although the appeals of both of the appellants in that case were in the event allowed by a majority of the court, they succeeded not because of the excessive length of their periods of detention—the House will be surprised and perhaps shocked by this: respectively almost 56 months and 26 months—but because the Secretaries of State in question had failed to apply their own published policy. No one was disputing that, even had that policy been applied, both would inevitably have been detained. They had been convicted of serious offences, the Home Secretary was seeking to deport them at the end of their sentences and they were detained pending removal because of the risks that they posed in the mean time in terms of absconding and reoffending.

The length of Lumba’s detention was the result of a series of appeals and judicial review challenges that he brought, all of which had to be heard and determined before he could be deported. The question of whether the length of detention was, in those circumstances, “reasonable” within what are known as the Hardial Singh principles—essentially the principles of reasonableness originally devised and set out by the noble and learned Lord, Lord Woolf, many years ago in the case of that name—was remitted to the High Court to decide on the particular facts of that case. It was, I may add, on the application of the Hardial Singh principles that the two claims referred to at page 23 of the inquiry report were decided.

The other main category of immigration detainees are those detained under what is known as DFT—the detained fast-track scheme—which is designed to get a speedy decision on an initial application, which is desirable both for the applicant and for others waiting in the queue to have their applications decided. That was the category under consideration by Mr Justice Ouseley in the case discussed at pages 37 to 39 of the report. As his lengthy judgment explains, the only respect in which he found the process carried an “unacceptable risk of unfairness” was that it does not provide for the sufficiently early instruction of lawyers to advise and prepare the asylum claims—a problem that I hope is now addressed.

Highly desirable though it would be, I do not know whether a 28-day time limit could be achieved in all DFT cases and I am sure that it would be quite impossible in many other cases, even if the Home Office faithfully follows its own guidance of using detention only sparingly and for the shortest possible period. Whether any time limit, and if so what, should be imposed, I leave to others. I add only that I suspect many other countries do better in terms of the length of detention because they are altogether more ruthless than we are in refusing appeals against deportation.

Counter-Terrorism and Security Bill

Lord Brown of Eaton-under-Heywood Excerpts

Monday 2nd February 2015 Lords Chamber

Moved by

[Lord Brown of Eaton-under-Heywood]

10: Clause 20, page 13, line 36, leave out subsection (1)

[Lord Brown of Eaton-under-Heywood (CB)]

In moving Amendment 10 and speaking to Amendment 11, I am returning to an unimplemented recommendation made in his March 2014 report by the independent reviewer about which I spoke at Second Reading and in Committee. These are the only amendments which relate to Part 2 on TPIMs. I want to make just five points.

First, the main and certainly the most contentious change in the TPIM regime brought about by Part 2 is the provision for internal relocation orders—internal exile, as it is being called. In short, it gives the Secretary of State power to require someone who is suspected of involvement in terrorism to move as far as 200 miles away from their present home. Not surprisingly, these highly disruptive kinds of order—which, in years past, used occasionally and contentiously to be made in control order cases—are deeply resented. Occasionally, however, I accept that they are a regrettable necessity.

Secondly, one of the conditions to be satisfied before any TPIM order can be made is that the individual in question is or has been involved in terrorism-related activity, which is known as condition A. Under the present legislation, the 2011 Act, that condition is met if the Secretary of State “reasonably believes” that that is the situation. Clause 20(1) of the Bill would substitute for the requirement of reasonable belief on the part of the Secretary of State the requirement that he be satisfied on the balance of probabilities that the person is involved in terrorism.

Thirdly, to my mind there is no practical difference between those two tests, hence the effect of Amendment 10 would simply be to leave out Clause 20(1), which substitutes one for the other. But far, far more important than Amendment 10 is Amendment 11, which is directed to the court’s oversight powers with regard to TPIM orders. Under the 2011 Act as it stands there is provision for initial review hearings of these orders and later for appeals by the High Court in each case. However, for reviews and appeals, the 2011 Act expressly provides that:

“The court must apply the principles applicable on an application for judicial review”.

Amendment 11 would widen the court’s jurisdiction so that it would be for the court to decide for itself whether the person in question was probably involved in terrorism and not merely for the court, as now, to ask itself whether the Secretary of State’s conclusion about that was one that he could reasonably arrive at or whether it was, on the contrary, perverse.

Fourthly, this strengthening of the court’s oversight powers was specifically recommended by Mr David Anderson, the independent reviewer, in his report of last year. In his recent oral evidence that he gave in November and December respectively to the Joint Committee on Human Rights and the Home Affairs Committee of the House of Commons, he expressly regretted that his recommendation had not been implemented. In fact, Amendment 11 is more limited than Mr Anderson recommended. He recommended that in all TPIM cases the final decision on whether the person is or has been involved in terrorism-related activity should be one for the court rather than for the Secretary of State, subject only to judicial review. My amendment would secure that this is so only in those most troubling of cases that I have already mentioned where the suspect is to be relocated far away from his own home.

Fifthly and finally, I should note with gratitude that last Thursday, after the debate in Committee at which widespread support was shown for my amendment, the Minister was kind enough to see me to discuss this question. Essentially, as I understand it—he will correct me if I am wrong—the Government’s position is that this amendment is not necessary because case law shows that the court interprets and applies its review powers in such a way as to suggest that in effect the court already takes the final decision itself. If that remains the Government’s view, I would challenge it for these reasons.

First, it postulates, necessarily, that the court is disobeying the express statutory prohibition placed on it by the 2011 Act against exercising any fuller or wider jurisdiction than that of judicial review. Secondly, I must ask rhetorically why the independent reviewer would make this recommendation and, indeed, regret its rejection if in truth it is quite unnecessary. Thirdly, given that the Government accept that what they suggest is the court’s actual present approach to these cases—namely, that of deciding the question for itself— why on earth not write that into the statute and thereby, as Mr Anderson himself put it in his report,

“help reinforce the legitimacy of TPIMs”,

and reassure a sceptical public and a worried minority community that the court is indeed playing its full part in safeguarding those at risk of these orders against the inappropriate use of this draconian power?

Amendment 11 is the important one. Amendment 10, as I indicated in Committee, is really an optional extra. I beg to move.

[Lord Howard of Lympne (Con)]

My Lords, I oppose Amendment 11. I shall be brief, but I appreciate that what I am about to say runs the risk of disturbing the relative tranquillity of this afternoon’s proceedings. Amendment 11 seeks to transfer the responsibility for the making of a crucial decision in this process from the Secretary of State to the courts. It is but another skirmish in the turf war between some judges on the one hand and Ministers and Parliament on the other hand which has featured so extensively in recent debates in your Lordships’ House, not least in the context of judicial review. It is my contention that decisions as important as the one we are currently contemplating should be made by the Secretary of State and not by the courts, so I hope that the view which was ascribed by the noble and learned Lord to the Minister about who is to take the final decision is based on a misapprehension. That is because I am firmly of the view that it is the Secretary of State who should take the decision.

My reason is very simple. It is the Secretary of State who has the responsibility of protecting the people of our country from terrorism and terrorism-related activities, and it is the Secretary of State who is accountable to the people of our country for the exercise of that responsibility: accountable to the electorate both in their capacity as an individual Member of Parliament and in their capacity as a member of the Government of the day.

It is right, as the noble and learned Lord has acknowledged, that the decision of the Secretary of State should be subject to the normal processes of judicial review. That is a feature of the current proposals. But it is the Secretary of State whose decision it should be, not a decision of the courts.

--- Later in debate ---

[Lord Bates]

I am grateful to the noble and learned Lord for moving the amendment. I was conscious of disagreeing with only one element of what my noble friend Lord Howard said. He said that he was going to disturb the tranquillity of the proceedings. From the perspective of the Government Whips’ Office and of Ministers, tranquillity is quite a sublime quality in debate on these matters. These matters evoke strong feelings on all sides of the House. My noble friend Lord Tebbit brought home from his personal experience the point that we are dealing with real threats to real lives. That is the ultimate threat to liberty that we are seeking to legislate for in the Bill before us.

I said that I would reflect on the point made by the noble and learned Lord, Lord Brown, last week, as I took it as seeking clarification. I was grateful to him for the time which he gave me, my officials and the legal team from the department in reviewing this matter. However, as the noble Lord, Lord Howard, put so succinctly, this is a matter of principle. It is a well observed principle that, in the realm of national security, the Executive have ultimate power, responsibility and accountability. That is the way that it has been, whether it is in relation to exercising royal prerogative over passports, temporary exclusion orders, interception of communications, excluding foreign nationals or deprivation of citizenship for those with dual nationality —I could go on. The principle is this: when it comes to national security, the Executive have to take the responsibility. That is an onerous responsibility to take. It is also entirely right, as the Bill provides for, that there should be an ability to challenge such a decision of the Secretary of State by way of judicial review and the courts.

I promised the noble and learned Lord that I would seek to put some additional words on the record which might give him some comfort. They are in relation to the technical legal point that he touched on, as did the noble and learned Lord, Lord Woolf, but they do not seek to move away from the fundamental grounds on which the Government are resisting this amendment, that of not wanting to sacrifice the principle that it is the Secretary of State who should decide.

As part of the review of the TPIMs imposed in the cases of CC and CF, their legal representatives argued that in TPIM cases the reasonable belief test,

“requires that at least the foundation of past facts upon which the belief is predicated must be proved on the balance of probabilities”.

As part of Lord Justice Lloyd Jones’s consideration, he applied Judge Collins’s judgment in the case of BM, who said that,

“to found a reasonable belief that a subject is or has been involved in TRA”—

that is, terrorist related activities—

“and that a TPIM is necessary does not involve the requirement to establish involvement in specific TRA to any higher standard than that which can properly give rise to such a belief. No doubt some facts which go to forming the belief will be clearly established, others may be based on an assessment of the various pieces of evidence available. But there is certainly no requirement that particular TRA needs to be established to the standard of at least more probable than not”.

Based on this precedent, we expect that the courts will see the balance of probabilities as a higher standard and that this will impact on their consideration.

As the noble and learned Lord will be aware, the court will also seek to interpret the difference in wording, as it is entitled to do. His amendments seek to differentiate between the test which the Home Secretary is required to apply and that which the court is to apply. Given her remit in relation to a range of aspects of terrorism, the Home Secretary remains best placed to make a holistic decision to impose a TPIM notice in order to protect the public from terrorism. The Government hold firm to that principle, which has had cross-party support. I express my gratitude to my noble friends who have spoken against the amendment, I hope that, with that additional explanation, the noble and learned Lord will see why the Government take the position that they do and will not be able to support the amendment if it is pressed.

[Lord Brown of Eaton-under-Heywood]

My Lords, I am grateful to all those who contributed to this debate and to the Minister for the words which indeed provide a little comfort. Perhaps my gratitude to the noble Lords, Lord Howard and Lord Tebbit, is slightly less pronounced than to others. I venture to suggest that the logic of their position would be that one should revert to the original test that the Secretary of State set for him or herself as to whether to make these orders: not one of reasonable belief but the lesser test of reasonable suspicion. The question in the present proposed Bill is simply, “Who ultimately should be satisfied on the balance of probabilities that this person is or has been involved in terrorism-related activity?”.

We are all against terrorism but we are also—I venture to believe and hope—all in favour of basic human rights and not making orders too readily against those who may well be as innocent as the day is long. In fact, Mr Anderson said in making this recommendation that it was in large part to give legitimacy to the process that we should make the court the final arbiter. He said that in fact he thought it would have made no difference to any of the earlier TPIM cases—but just think what assurance the public would have that only the right people were targeted.

As to the Minister’s point about it being invariably a matter of principle that the court’s powers did not go beyond those of judicial review, with respect—as I ventured to point out in Committee—that is not so. In the 2005 Act, Section 4(7)(a) provided in terms that the court could confirm a derogating control order only if,

“it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism related activity”.

However, there it is. Given what may be thought to be the somewhat inactive—I restrain myself from saying “pusillanimous”—stance adopted by the Opposition here, clearly I will not divide the House. However, I suggest that there remains time, with a week before Third Reading, where the Minister could still come to recognise that there is much to be said in favour and, on true analysis, very little to be said against this amendment.

[Lord Bates]

In terms of the Government’s position on this, it is a principle. We gave it a great deal of reflection and that is the position. I am afraid that I am not able to give any commitment that the government position will change between now and Third Reading. Therefore, should the noble and learned Lord wish to test the opinion of the House, he should do so now.

[Lord Brown of Eaton-under-Heywood]

I was not relying on any reconsideration as a basis for not dividing the House. I merely say that it still remains open to the Government if they suddenly see the light. In the mean time, I take such comfort as I can from the words uttered today by the Minister. I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Counter-Terrorism and Security Bill

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 28th January 2015 Lords Chamber

[Lord Hannay of Chiswick]

I shall not weary the Committee by using all the arguments that have been so well advanced by noble Lords on all sides. They have been much more eloquent than I could possibly be. I support the amendments proposed by my noble friend Lord Pannick and Amendment 104 because I do not think that the Government have made a very convincing case for moving from a voluntary to a statutory basis. They are quite right in wishing to see all higher education institutions taking the Prevent strategy seriously and co-operating with it but they have not given any evidence that this voluntary approach—reinforced perhaps by a bit of naming and shaming—cannot bring everyone voluntarily within this framework. They have said little about the efforts they have made to do that, except to admit, which I very much welcome, that the majority of universities are actually doing this already. Therefore, I do not think that the case has been made for moving from a voluntary to a statutory basis.

There is a bit of a mixture in this grouping, ranging from a carve-out for universities and other proposals that fall short of that, which would leave universities within the Bill but would mitigate the problems from it. I hope that the Minister will address some of the other amendments—Amendments 105, 112 and so on—which would achieve that mitigation. It is extremely important that that should appear in the Bill.

Finally, I have a point to make about the guidance. The consultation on the guidance with universities, if I understand it rightly, concludes at the end of this week. Frankly, that guidance is pretty horrifying. It has caused a great deal of the concern that has been expressed around this Committee by the nature of its prescriptive detail, its intrusiveness and the absolute impossibility for most universities to carry out these provisions. Next week, on Report, the Minister could make clear in the most formal way the changes to the guidance that will be introduced before it is promulgated. I hope that the Minister will take that seriously. If he cannot agree to remove universities from this Bill, which would be my preference, he should accept some of the amendments that would mitigate the effects of it, make quite clear that the guidance will be radically altered and explain how it will be altered. He should explain, above all, some of the points that he put in his letter about the positive things that the Government are happy to continue to see happening in universities and not just give a long list of the negative things that they are going to try to clamp down on. I hope that can be taken to heart before we come back on Report.

[Lord Brown of Eaton-under-Heywood (CB)]

The amendments here fall into two distinct categories. There is the root-and-branch objection to the whole idea that higher education institutions should be brought into Part 5 of the Bill and the proposal that they should be carved out, to use the expression of the noble Lord, Lord Hannay. Then there are the amendments that seem to massage various provisions within Part 5 as it presently exists so that it becomes, apparently, compatible with the explicit statutory duties already placed on those institutions to promote free speech, freedom of expression, academic freedom and so on. Like the noble Lord, Lord Hannay, I very strongly support the first category, the root-and-branch objection. It seems to be a matter of the first importance that, for universities and higher institutions, nothing short of the express provisions of the criminal law—or, no doubt, the long-established principles of defamation—should operate as an inhibition on the freedoms that are here in question, which really are core values that go to the very heart of effective university life in a liberal democracy. It is small wonder that so little enthusiasm has been voiced in the Committee today in support of anything approaching Part 5 in its present form.

Counter-Terrorism and Security Bill

Lord Brown of Eaton-under-Heywood Excerpts

Monday 26th January 2015 Lords Chamber

Moved by

[Lord Brown of Eaton-under-Heywood]

75: Clause 16, page 10, line 10, leave out subsection (1) and insert—
“( ) At the end of section 9(2) (review hearing) and section 16(6) (appeals) of the Terrorism Prevention and Investigation Measures Act 2011, insert “save that, in the case of a TPIM notice which requires the individual to reside at a specified residence which is not in an agreed locality and with which the individual has no connection, in reviewing the Secretary of State’s decision that condition A continues to be met, the court must reach its own decision whether, on the balance of probabilities, the individual is, or has been, involved in terrorism-related activity”.”

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, Amendment 75 is not a probing amendment. This is for real. Perhaps the most challenging feature of Part 2 of this Bill is the reintroduction of internal relocation orders into the TPIM regime, which many of us would regard as a regrettable necessity. Amendment 75 concerns what should be the appropriate level of judicial oversight in these cases and would, I believe, go some way to take the sting out of the highly toxic question of internal relocation.

The amendment is designed to give effect to one of the independent reviewer’s 10 recommendations made in his March 2014 report into TPIMs—recommendation 3. Put simply, although I fear I shall have to explain the amendment a little more fully in a moment because, on its face, it is less than crystal clear in its effect, the position is this. Under the present TPIM regime, one of the four conditions that has to be satisfied before a TPIM order can be made—it is called Condition A—is that the Secretary of State “reasonably believes” that the person concerned,

“is, or has been, involved in terrorism-related activity”.

That is the particular condition which is referred to in Section 3(1) of the 2011 Act, which in turn is what Clause 16(1) of this Bill relates to.

At present, if a TPIM order is made, the courts can review it or hear an appeal ultimately against it only on a limited basis. The court is expressly required by the statute to apply the principles of judicial review. In other words, the court decides only whether the Secretary of State was acting reasonably or perversely in reaching her belief. The court does not have the jurisdiction to reach its own conclusion. This would continue to be so if Clause 16(1) is enacted in its present form.

Personally, as I made plain in what I regret was my rather overlong speech at Second Reading, I can see no true distinction between the Secretary of State reasonably believing something and her being satisfied of it on a balance of probabilities. But the more important point for present purposes is this: even if there is a difference, the decision as to the person’s involvement in terrorism under Clause 16(1) as it stands, subject only to the limited scrutiny of judicial review, is one solely for the Secretary of State and not for the courts. Like the independent reviewer, David Anderson, I believe that the decision should be for the courts, especially—I emphasise “especially”—in those cases where the Secretary of State is to deploy that most disruptive of measures, now to be made available to her, internal involuntary relocation—“internal exile” as it has been called. Indeed, that was the term used at Second Reading by the right reverend Prelate the Bishop of Durham.

Make no mistake, these orders—because we used to have them in control order cases—are deeply resented, not least, of course, by the persons’ families, who can be very severely and very harshly affected. They contribute worryingly to what some civil liberty and minority groups call the “folklore of injustice”. At Second Reading , the noble Baroness, Lady Kennedy of The Shaws, called it the “folklore of oppression”. It was, said David Anderson, perhaps unsurprisingly, only “with a heavy heart” that he came to the recommendation that this measure should be reintroduced as now is provided for by Clause 12 of this Bill.

My amendment is tailored simply to apply to those TPIM orders that require relocation. It provides that in these particularly troubling cases it will be for the court to reach the final, substantive decision, on the balance of probabilities, as to whether the person being internally exiled is, or has been, involved in terrorism-related activity.

I should make it plain that there is nothing particularly novel or radical about this proposal. The Prevention of Terrorism Act 2005 introduced control orders in place of the original discredited Belmarsh regime of the internment of foreign suspects without charge and without trial on an indefinite basis. The 2005 Act, by Section 4(7)(a), provided in terms that the court could confirm a derogating control order only if,

“it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity”.

That is precisely the position which, I suggest, should be achieved here.

As Mr Anderson pointed out at paragraph 6.16 of his 2014 report, the Government had already accepted in relation to the earlier proposed ETPIMs legislation—the enhanced TPIMs scheme, which in the event never came into being—that at the High Court review of such enhanced orders the Home Secretary should be required to prove the suspect’s involvement in terrorism on the balance of probabilities—again, just as I suggest should be the position here.

The Joint Committee on Human Rights, at paragraph 4.14 of its report on the Bill just this month, welcomed the introduction of the balance of probabilities test, but added that,

“in order for this change to make a real practical difference, we recommend that the TPIM Act be amended to require the court also to consider whether the balance of probabilities standard was satisfied, in place of the current, lighter-touch judicial review standard. Such an amendment would give effect to the unimplemented part of the Independent Reviewer’s recommendation”.

Mr Anderson himself, at paragraph 6.17 of his 2014 report, having doubted whether his proposed change—from the Secretary of State reasonably believing the suspect’s involvement in terrorism to the court being satisfied of this on the balance of probabilities—would have made a difference in any of the earlier TPIM cases, importantly added:

“It would however help reinforce the legitimacy of TPIMs, by enabling the Government to say (as it cannot at present) that a TPIM notice may only be upheld if it is proved to the satisfaction of the High Court that the subject has been involved in terrorism”.

My proposed amendment, as I have explained, is in fact rather more limited than Mr Anderson’s recommendation. Rather than applying to all TPIM orders in future, it would apply only when internal relocation is one of the measures ordered. There is of course no such phrase as “internal relocation” or “involuntary relocation” in the Bill—it is not used in Clause 12 or indeed in paragraph 1 of Schedule 1 to the 2011 Act, which Clause 12 amends. Therefore my amendment, I hope accurately, has had to spell out the particular circumstances which constitute the internal relocation and where it would apply.

I hope that the House will support this amendment and indeed that the Minister may himself come to see its merits. It would, I suggest, send out an important message that we in this House recognise the very real problems that result from internal relocation orders and are concerned to balance the need for them, as best we may, by strengthening the safeguards against their inappropriate use. The court should be given this additional responsibility in its oversight role. The independent reviewer’s recommendation ought not lightly to be rejected. The fact is that I have yet to hear or read of any cogent, coherent basis for rejecting it. I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I have spoken about internal exile, as I choose to call it, on a number of occasions in this House. I am persuaded by the independent reviewer that, because of the threat faced by this country at this time, there may be the rare occasion when one would want to disrupt the connections and associations in a particular place of someone subject to a TPIM order. It should be used on the rarest of occasions, and the standards that the courts should look to in making the decision should be high.

I support what the noble and learned Lord, Lord Brown, has said. We should see this idea as a huge departure from what we would consider normal. For people to be taken away from their families and the place that they know and sent to live somewhere else in the country is a very hard thing. We have to recognise that sometimes it will disrupt good associations as well as negative ones, so that they are no longer with their mother or father, or with some of the people who are voices of sanity as distinct from siren voices. It surely makes sense to say that this is such an exceptional step that there should be this additional safeguard, which has been proposed by one of our most senior retired judges.

--- Later in debate ---

I realise that I have skipped through a number of points. I have given an undertaking to reflect on the contributions made by noble Lords in this debate and perhaps to meet the noble and learned Lord before Report, should he be willing to do so. In view of that, I ask him to consider withdrawing his amendment at this stage.

[Lord Brown of Eaton-under-Heywood]

I am grateful to the Minister for that considered response. I am perhaps even more grateful to all those who spoke in support of this amendment. I say to the noble Baroness, Lady Hamwee, that I will, of course, look afresh at the correct matching of my wording with that of the amended paragraph 1 of Schedule 1 to the 2011 Act when we come back to that.

The noble Baroness, Lady Smith of Basildon, asked whether there is a higher test involved in balance of probabilities than that in reasonable belief. This runs parallel to a point made by the Minister just now. When we come back to that, I would be very grateful if the Minister could give us an illustration of where, on the facts, you could reach a different conclusion on reasonable belief from that on the balance of probabilities. I maintain that there is no distinction.

However, that is, frankly, almost an irrelevance. Regarding my amendment, I do not in the least mind—I am completely agnostic on this—whether one leaves in Clause 16(1) as it stands and adds the wording suggested in my amendment after it, or, as the amendment proposes, leaves out the subsection and inserts my wording in its place. I do not mind whether the Secretary of State makes a decision—as initially she is bound to do—by way of reasonable belief or as a conclusion on the balance of probabilities. What matters is that the decision of hers should then be subject to review or appeal by the court, not on the basis of judicial review but on the different basis of her having to establish to the satisfaction of the court, on the balance of probabilities, that the person concerned has been engaged in terrorism-related activity. That is a real difference, and I will say, with the greatest respect to the Minister, that if he looks back at Mr Anderson’s 2013 and 2014 reports on TPIMs he will see that that was the position that was going to be arrived at regarding enhanced TPIMs; it was going to be for the court—whatever the Minister decided—then to reach its own conclusion on the balance of probabilities.

The noble Lord, Lord Carlile, who brings huge expertise, having been a distinguished independent reviewer, suggested that actually there is not all that much distinction between the judicial review standard that a court is presently required to adopt and an appeal by which the court would have to be persuaded on this issue and reach its own decision. The court does its best by way of judicial review and, in an area as sensitive and relevant to human rights as this, the court will of course go out of its way to adopt as intrusive a standard of judicial review as it feels it can. However, it simply cannot—it would be disobeying the statute if it tried to—substitute its own decision for that of the Secretary of State.

I hope that that meets most of the points that were raised. Of course I am prepared—and am grateful for the offer—to talk to the Minister. We have only a week between now and Report on this part of the Bill. Of course I am not going to press the amendment today, but it may well become necessary to do so a week today, unless the Minister sees the light—if I may put it that way—and is prepared to shift the Government’s position. In the mean time, I beg leave to withdraw the amendment.

Amendment 75 withdrawn.

Counter-Terrorism and Security Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 13th January 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, this is a complex Bill, not least because it amends and interacts with a number of other difficult statutes in the field and presupposes a full understanding of them. Although I have done quite a lot of reading in this area, I confess at once that I have not as yet formed any clear and final view on some—perhaps most—of the many difficult issues that it raises. Today, I propose to confine myself to one or two general, perhaps rather bland remarks and then focus more particularly on Part 2, which deals with changes to the TPIMs scheme.

My preliminary comments are these. Like my noble and learned friend Lord Lloyd of Berwick, although not for as long as him, I have been concerned with the legal aspects of national security over many years, first as Treasury counsel acting in such cases for the Government. Indeed, my very last case at the Bar was in 1984, the de-unionisation on security grounds of GCHQ. The noble Lord, Lord Armstrong of Ilminster, who I am delighted will be speaking in this debate, was our chief witness. Then, overlapping with many—perhaps too many—long years on the Bench, I was, also successively from the mid-1980s chairman of two tribunals which investigated complaints into our various intelligence agencies. Then for six years up to 2006 I was the Intelligence Services Commissioner with, effectively, retrospective judicial oversight into the operation of the various intelligence agencies, most particularly compliance with the requirements of the Regulation of Investigatory Powers Act 2000, which was introduced to secure Article 8 privacy rights conferred by the Human Rights Act. In those days, I was able to give only a month a year to that task. As I understand it, my successors as both the Intelligence Services Commissioner and the Interception of Communications Commissioner have to deal with that on an almost full-time basis.

Over all the years that I have had those various forms of contact with the agencies, I have formed a clear view that they consist—save for the tiniest minority, who are speedily weeded out—of the highest quality men and women, dedicated and disciplined public servants, generally of considerable intelligence and great integrity. Many have come from academe, banking or skilled professions specifically because they wanted to make what they regarded—and which I certainly regard—as the greater contribution to national life that comes from working in those agencies, often at substantially lower salaries than they could have expected in the private sector, and always on the understanding that their particular value would never be recognised publicly. I say never; happily there are in the House this afternoon two exceptions to that non-recognition, both of whom are to speak in this debate, and we look forward to hearing them. The noble Baroness, Lady Manningham-Buller, is to speak later and very shortly we shall welcome enormously the maiden speech from the noble Lord, Lord Evans of Weardale. We shall listen with particular attentiveness to what they have to say.

Of course it does not follow from the undoubted excellence of our intelligence officers that we in Parliament should uncritically grant them ever wider powers. Far from it, but it certainly follows that I, for my part—like the noble and learned Lord, Lord Goldsmith—am readily inclined to listen to their views and to treat with particular respect any arguments and evidence that they advance as to the existence of gaps in the capabilities of the agencies that need to be filled. I would also value their judgment on—for example—the damage caused by people such as Mr Snowden.

In the light of last week’s ghastly events in Paris, it may be thought that the need for this Bill in all its various aspects is more obvious than ever, but there is perhaps a risk on that account that we may be inclined to give it a fairer wind than it—or certain parts of it—strictly merit. I am quite sure that on reflection all Members of this House agree that holding the difficult balance appropriately between freedom on the one hand and security on the other remains just as important as it always has.

So much for preliminary comments—perhaps they were rather tiresomely platitudinous; there it is. I come to the second part of this Bill, which deals with TPIMs. I begin by briefly reminding the House of the gradual evolution of this system of control over those we suspect of terror-related activities but do not have the evidence to actually put through court for prosecution. After 9/11 we began, as we can all too easily remember, with the Belmarsh detention scheme, which in retrospect can be seen as a really shocking form of open-ended preventive detention of foreign suspects. It was ultimately struck down in a seminal judgment of the Appeal Committee of this House, chaired by the late and much respected Lord Bingham of Cornhill, in the famous case of A. Of course, shortly after that this House rightly determined that that scheme should be given its quietus. It was immediately then replaced—and there was, one recalls, a heady night of toing and froing between the Houses—by the control order regime under the Prevention of Terrorism Act 2005, which lasted for six years until its repeal by the TPIM Act in 2011. Control orders were of course highly contentious and much litigated. I myself heard a number of appeals against various aspects of such orders, both in the Appeal Committee of this House and then, after October 2009 when we were banished across the square, in the Supreme Court.

The TPIM Act represents, if you like, stage 3 of this evolving picture, and introduced major changes from the altogether more draconian control order regime which it replaced. It is no longer possible to make TPIMs on an indefinite basis—they are now limited to two years; curfews, which were originally permissible up to 16 or perhaps even 18 hours under TPIMs, are now down to 10 hours; there is now the right to a computer and a mobile phone; the test for imposing these orders was sharpened and raised: “reasonable suspicion” has given way to “reasonable belief”. Most importantly for present purposes, there is no scope under TPIMs for relocation, for what the right reverend Prelate the Bishop of Durham called—as it has been called by others—“internal exile” and the many problems associated with all that. The courts long ago acknowledged that—we discussed it at length in 2010 in our Supreme Court judgments in the Home Secretary v AP.

Clause 12 would amend the TPIM Act to reintroduce the possibility of relocation. As has already been remarked by the noble Lord, Lord Paddick, the independent reviewer, Mr Anderson QC—truly a most estimable and able man—recommended that himself, although, as he put it in his evidence to the Joint Committee on Human Rights on 26 November last, he did so,

“with a heavy heart, but none the less with decisiveness”.

Despite the fearsome disruption to family life and the resentment it causes and the disaffection of the families—which again, the right reverend Prelate spoke of—I, too, support it. Frankly, it is the only effective way to prevent people meeting up with their associates and from absconding. However, it must be recognised that it is a hugely invasive, disruptive power; infinitely more so, for example, than telephone tapping, data recording, or any of the several other such powers available or proposed to be available to the agencies. Those powers merely—I use that word advisedly and rather in the same sense as the noble and learned Lord, Lord Goldsmith, would—interfere with people’s right to privacy, which is a valuable right, but nothing like the right that is removed by relocation.

That consideration takes one—or at any rate takes me—to Clause 16(1), which provides that:

“In section 3 of the Terrorism Prevention and Investigation Measures Act 2011 … in subsection (1), for ‘reasonably believes’ substitute ‘is satisfied, on the balance of probabilities,’”.

The result of that is that in the TPIM Act itself, which provides by Section 2(1) that:

“The Secretary of State may by … a ‘TPIM notice’ … impose specified terrorism prevention and investigation measures on an individual if conditions A to E in section 3 are met”,

the relevant condition A, which is in Section 3(1), is,

“that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity (the ‘relevant activity’)”.

That would become, “that the Secretary of State is satisfied, on the balance of probabilities”, that the person concerned has been involved in terrorism-related activity.

In his evidence both to the Joint Committee on Human Rights, and later, on 3 December, to the House of Commons Home Affairs Committee, Mr Anderson explained that Clause 16 did not give full effect to one of the recommendations he made to the Government about TPIMs. His third recommendation was essentially that the Home Secretary would have to persuade a court on the balance of probabilities that the person in question was or had been involved in terrorism. As now proposed by Clause 16(1), the question will be merely whether the Home Secretary herself is satisfied on the balance of probabilities. Frankly, as a matter of language and logic, I find it difficult to see that there is any material distinction whatever between the present position of the Home Secretary reasonably believing something, and—as now proposed—of her being satisfied of something on the balance of probabilities.

There is, of course, a real difference between reasonably suspecting something—which was the old test for imposing control orders—and reasonably believing something, which is the existing TPIM test. As I said in another criminal context in some earlier reported case, “to suspect something to be so is by no means to believe it to be so; it is to believe only that it may be so.” I am sure everybody here readily sees the logic of that. Belief necessarily denotes that the person thinks the fact in question has been established. I therefore question whether Clause 16(1) as it stands in practice does what it purports to do; namely. to raise the standard of proof required in these cases. I note that there was a Court of Appeal case in 2012 when, in the course of some lengthy judgments, somebody was able to suggest that they found some distinction between the two, but I confess it eludes me. Either way, Mr Anderson’s original recommendation for the court to be satisfied on the balance of probabilities was the correct one, certainly with regard to any future TPIM which is to deploy this new power of ordering relocation, significantly the most burdensome and invasive of the obligations which it will now be possible to impose. I strongly urge the Minister to re-examine this question, and to ask himself whether—after all—Mr Anderson’s recommendation should not be properly accepted rather than fudged and diluted to the point of negligibility in the existing draft. That may have been actually what the noble Marquess, Lord Lothian, was referring to in that early intervention he made during the Minister’s speech, although it was understood—and understandably understood—to be an intervention relating to Part 1 of the Bill.

That is my main present concern with Part 2. I welcome the other proposed changes to the existing TPIM regime, subject always to some persuasive contrary argument that may later emerge from others. Before I sit down I should mention that there are plainly problems with other provisions, most notably both provisions in Part 1. We will see what the Government propose hereafter by way of allowing judicial control of these proposed new powers. Today I merely reserve my position on all these other matters. But overall I am optimistic that we can reshape this Bill to improve national security without significantly compromising our civil liberties. I would certainly give it a Second Reading.

Serious Crime Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Monday 16th June 2014 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I confess to having had some doubts as to whether I was justified in speaking on this Bill, given that I am so clear as to its essential merit and, indeed, so bereft of any constructive and useful criticisms. But given, too, how critical I suspect that I, and no doubt many others, am going to have to be when we shortly debate the Criminal Justice and Courts Bill, which we understand will be leaving the other House tomorrow, I thought it perhaps appropriate to express my support for the Government in what they are doing at least in the present Bill. My doubts arose afresh when I saw that the noble and learned Lord, Lord Hope of Craighead, was down to speak before me. Indeed, I passed him a note saying, “Will you leave me anything to say?”. It may be that your Lordships shortly come to doubt the correctness of his response.

In all events, I confine myself to brief comments on just four aspects of the Bill. The first is the proceeds of crime provisions, which of course are at the very heart of the Bill and indeed form the largest part of it. These provisions I certainly applaud. Indeed, anything that strengthens our legislation, designed to strip criminals of their ill gotten gains, is greatly to be welcomed, and Part 1 of the Bill should undoubtedly plug a number of gaps that have been found in the present confiscatory scheme. I particularly welcome Clause 11, which will enable restraint orders—that is to say, orders freezing assets and preventing their dissipation pending any eventual confiscation—in future to be made as soon as there are reasonable grounds to suspect that the person is guilty of an offence, rather than, which is presently the position, only when there is reasonable cause to believe. Of course, belief is the higher test. The future test is the lower test: reasonable grounds to suspect that a person has benefited from his criminal conduct. I add only that, for my part, the essential value of all this confiscatory scheme is impoverishing and therefore deterring the criminal rather than enriching the state, so I am perhaps less worried than the noble Baroness, Lady Smith, as to the comparatively high cost of enforcement.

Secondly, I also welcome Clause 41, the clause to which the noble Lord, Lord Richard, spoke at a very early stage during the Minister’s opening of this debate. Clause 41 creates an offence of participating in the criminal activities of an organised crime group, and thereby gives wider effect than the United Kingdom has hitherto given to Article 5 of the United Nations Convention against Transnational Organised Crime. Up to now, as has been explained, we have relied largely on the law of conspiracy in order to target those involved in some shape or form in organised crime groups, but this of course requires proof of the person’s agreement to carry out the criminal scheme.

This new offence is designed to target those who merely support organised crime—in other words, those who provide, in one way or other, services that facilitate criminal capability and activity but without those assisters being directly, so to speak, involved in the criminal plan itself. Henceforth, such people are going to be guilty of an offence if they turn a blind eye when, in the language of Clause 41(2), they know or have reasonable grounds to suspect—again, the lower test and not, as I think the noble Lord, Lord Sherbourne, suggested a moment ago, the higher test of belief—that they are in fact helping,

“an organised crime group to carry on criminal activities”.

This is designed not least to discourage corrupt and complicit professionals who provide services to organised crime groups. I do not for a moment suggest that more than a very tiny minority of professionals lend themselves to this, and it is therefore perhaps unsurprising that the representative bodies for both solicitors and accountants, to which I think the noble Baroness, Lady Hamwee, referred, have expressed certain concerns about this new provision. For my part, however, these concerns are misplaced. Rather, it seems to me that this new provision may be expected to reinforce the integrity of these professionals.

Thirdly, I want to say a word about Clause 62, about which many others have spoken. It amends Section 1 of the Children and Young Persons Act 1933, which criminalises cruelty to those under 16. The amendment expressly provides that is an offence to cause suffering or injury to health whether that,

“is of a physical or a psychological nature”.

Personally, and I think in common with the Minister, I doubt whether it is strictly necessary. Even under the existing wording, it seems to me reasonably clear that causing a child unnecessary psychological suffering would constitute an offence, but plainly it makes sense to update this now rather archaic language and to spell out in terms that causing psychological harm is also explicitly criminalised. Indeed, it has come to be recognised that, as the noble Lord, Lord Elystan-Morgan, made plain, these sorts of cases can indeed be some of the very worst cases of child cruelty.

As the noble and learned Lord, Lord Hope, has already observed, this proposed amendment is entirely consonant with a decision that we came to in the Supreme Court in a case called Yemshaw some three years ago, in which we held that the term “domestic violence” is indeed apt to include not merely physical and intimidatory behaviour but other forms of abuse, including, above all, psychological abuse that gives rise to the risk of harm. One wonders perhaps whether the noble Lord, Lord Paddick, might have overlooked that case in what he said as to how domestic violence is not currently apt to include it. It is true that in that particular statutory context—the urgent need to be rehoused as homeless—I doubted the correctness of the view of the majority, although I did not in the event dissent from it. In the context of outlawing child cruelty, however, it seems to me unarguably the right approach.

The final clause that I would mention, again with total approval, is Clause 64, which widens our extraterritorial jurisdiction under the Female Genital Mutilation Act 2003. Someone who, even outside the United Kingdom, mutilates a girl’s genitalia or aids, abets, counsels or procures a girl to do so herself commits an offence that is triable here, but under the present law only if they are UK nationals or permanent UK residents. The proposed amendment will extend such extraterritorial jurisdiction to those who are habitually resident here—in other words, even those who are not permanently resident here. Parenthetically, in Section 2, there is an offence of aiding and abetting the girl or woman to mutilate herself. I believe this is the only offence, apart from that of assisting suicide, which we shall no doubt discuss later, where the act of assisting and not the substantive act itself is criminalised.

I add my voice to those of the large number of noble Lords who have already spoken to express how appalling the continuing operation of this vile practice is among certain communities and how astonishing the failure of effective law enforcement procedures to stamp it out. Eight years ago, sitting with the noble and learned Lord, Lord Hope, in the Appellate Committee of this House in a case called Fornah v Secretary of State for the Home Department, we granted asylum to a 15 year-old girl from Sierra Leone because of her fear that, if returned, she would be subject to FGM. There are plainly still communities here who, as in Sierra Leone, regard FGM as an acceptable, and indeed desirable, initiation rite into adulthood. How dreadful that is. If a victim were to arrive at, say, a school or hospital with gunshot wounds, the police would be speedily alerted. So it should be with those who on examination can be seen to have been the victims of this abhorrent practice.

I wish to make a final comment on the Bill as a whole. So plain does it seem that the provisions of this Bill are essentially well directed that I find it difficult to understand why no fewer than four days have been allotted to it in Committee. As other noble Lords have already made clear, certain provisions are going to need careful, detailed consideration, but if this Bill needs four days, goodness knows how many days the Criminal Justice and Courts Bill is going to need when it comes. That, however, is for the future. As far as this Bill is concerned, so far, so good.

Immigration Bill

Lord Brown of Eaton-under-Heywood Excerpts

Monday 12th May 2014 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, I am a member of the Joint Committee on Human Rights and I should declare an interest because, like the noble Lord, Lord Pannick, I am a member of Blackstone Chambers, the same chambers as Professor Goodwin-Gill. As the House will understand, barristers are not like solicitors: we are not in a firm and are perfectly capable of taking completely different views from some of our colleagues. I have of course read Guy Goodwin-Gill’s opinion and his supplementary opinions but I do not think that they focus on the particular issues, practical and otherwise, with which we are concerned in this debate.

As the noble Lord, Lord Pannick, indicated, the Joint Committee on Human Rights welcomes the concession that has been made. I was one of the rebels—in the words of the noble Lord, Lord Pannick—and am personally satisfied, for the reasons that the noble Lord gave, that the concessions obtained in the other House ought to be acceptable and are in accordance both with international law and with the principles of our own constitutional system of government and law. However, I also agree with the noble Lord, Lord Pannick, that the questions that he has raised are the right ones, and my support for the Government’s position is dependent on satisfactory assurances being given. It is very important that they are given, because one of the advantages of the Pepper v Hart doctrine is that what is said by the Minister in reply will give guidance about how this important provision is to be interpreted.

I very much welcome the shift that has occurred and the fact that it has occurred because of pressure from across the whole House and not simply from one party. I do not agree with the position now being taken by Her Majesty’s Opposition—unless it is a probing position. If they were to press their difference of opinion to a vote, I would support the Government.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, on Report, I added my name to those of the noble Lord, Lord Pannick, and the noble Baroness, Lady Smith, in proposing what is now Amendment 18. I did so because, consistently with what I had previously said in Committee, I was so strongly opposed to the United Kingdom lending itself to what has been called the evil of statelessness, with all the reputational damage which that would have occasioned to this country. It seemed to me at that stage imperative that there should be pre-legislative scrutiny, as Amendment 18 essentially proposes, before any such extreme position should be adopted.

On Report, I recognised that amending the legislation, short of leaving people stateless, could indeed well be justified. I will quote just a sentence from what I said at that point:

“By all means, let the Government reverse the decision last year of the Supreme Court in Al-Jedda and legislate, as Lord Wilson in his judgment there implicitly suggested, to allow us to deprive someone of their British citizenship, provided that they can then immediately acquire the nationality of another state, as, indeed, it was assumed in the course of the litigation in that case that Mr Al-Jedda himself could have done”.—[Official Report, 7/4/14; col. 1174.]

Noble Lords should remember that this power is to be available only in the case of someone who has gained his British citizenship by naturalisation and who then betrays the trust that we as a nation put in him and acts in a way which is seriously prejudicial to the vital interests of this country. Provided that that person can then become a national of another country so as not to be rendered stateless, as was assumed in Mr Al-Jedda’s case, I see no real objection to our depriving him of the protection that we ourselves earlier conferred upon him. The Government’s very welcome amendments seem to limit the power precisely to these circumstances. My understanding of the new paragraph that it is proposed be inserted into the nationality Act under Amendment 18A is that it is precisely the same as that of the noble Lord, Lord Pannick. I will not go into all the points again, but it is plain that it refers to a present entitlement and not simply to a right to apply. The language is “to become” a national of another country, not “to seek to become”. Provided that that is so and provided that the Minister gives—as I fully expect him to—all the assurances that the noble Lord, Lord Pannick, has invited him to give, the Government have properly given way on this critical issue and, if the matter is put to the vote, I shall support the Government.

Immigration Bill

Lord Brown of Eaton-under-Heywood Excerpts

Monday 7th April 2014 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I wish to speak to Amendments 56ZA to—

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, my name is on the amendment so I wish to speak to it.

[Baroness Lister of Burtersett]

I also have an amendment in the group. I shall speak to Amendments 56ZA to 56ZD in this group. They have been tabled with colleagues from the Joint Committee on Human Rights, which recommended them. They also reflect concerns raised in a joint briefing from the Equality and Human Rights Commission, the Northern Ireland Human Rights Commission and the Scottish Human Rights Commission. But I should make it clear first that I would prefer Amendment 56 to be successful so that these amendments would become redundant. Indeed, these amendments reinforce the case for Amendment 56 because they underline how a number of key human rights issues remain unresolved. As the commissions observed, the consequences of having and using the power proposed in Clause 64 have not been carefully and thoroughly considered in respect of the UK’s compliance with its international and domestic human rights law obligations. I fear that this remains the case despite the welcome government Amendment 56A. It should not be the responsibility of an independent reviewer to put right defective legislation once it is in operation.

Amendment 56ZA seeks to ensure that any deprivation of citizenship is consistent with the UK’s obligations under international law. There has been some confusion in our debates so far as to what is meant by this. The JCHR accepts that Clause 64 is compatible with our obligations under UN conventions on statelessness, and not surprisingly the Government have prayed this in aid. But, in doing so, they have conveniently overlooked the JCHR’s concern that exercising the power in relation to a naturalised British citizen while they are abroad carries with it a very great risk of breaching the UK’s international obligations to the state which admitted that British citizen to its territory. These two points were at times conflated during our debates in Committee.

The Government’s legal position is that subject to one very limited exception, there is no general entitlement in international law for a state to deport a non-British citizen to the UK. On the other hand, Professor Goodwin-Gill, an acknowledged authority on the subject and already cited by the noble Lord, Lord Pannick, has said that the Government’s position on general international law is “manifestly incorrect”. This is not the place to go into disputes of legal interpretation, and as a non-lawyer I am certainly not the person to do so, but the point is that if fine legal minds are in dispute about whether it is compatible with international law to denationalise a citizen while they are abroad, surely it makes sense to allow a Joint Committee of both Houses to consider the matter before the proposal goes any further.

At this point I want also to put on the record the JCHR’s disappointment that the Government continue to refuse to inform Parliament about the number of cases in which the power to deprive a person of their citizenship has been exercised while that person is abroad. How can statistics affect national security? When the JCHR put this question to the independent reviewer in a recent public session, he responded by saying:

“My sympathies are very much with your request. If they will not tell them to you, I can only assume that they would tell them at least to a security cleared reviewer, who might in turn be able to make a recommendation that they may be released more widely”.

Will the Minister give a commitment now to make those statistics available to the independent reviewer, who he has said may indeed be given the power of review proposed in Amendment 56A?

Amendment 56ZB requires that the deprivation of citizenship is a necessary and proportionate response to an individual’s conduct. I would have thought that that was a rather basic safeguard for such a draconian power. The committee welcomed the Government’s indication that they would adopt a proportionality approach to deciding whether to exercise the power to deprive someone of their citizenship regardless of whether that would risk statelessness, but we believe that the importance of the concepts of necessity and proportionality as safeguards against arbitrariness are such that they should be in the Bill as conditions which have to be satisfied before the Secretary of State makes a deprivation order. We believe that this could make a real and practical difference in particular cases.

We also noted that it was hard to imagine the circumstances in which such a serious measure could ever be a necessary and proportionate response to a threat to the country’s economic well-being, as has been indicated by the Government. In Committee, the Minister promised to write to me with an example of when this might happen. I do not believe that I have received that example, so I should be grateful if he could provide it today on the record.

Amendment 56ZC would remove the retrospective power contained in the clause. The Government response to the Committee’s objection to this exceptional constitutional step was that a person does not have a legitimate claim of being unaware of the potential consequence of their actions because the person who would come within the scope of this new power would already be liable to being deprived of citizenship under existing powers. The only thing that prevents that now is that such a decision would leave them stateless. Is not that “only thing” rather an important thing? The Government response makes light of the fact that it is the law that currently prevents a person being deprived of citizenship if it made that person stateless. Surely a citizen should be entitled to rely on what the law said at the time of their action? Again, this is an issue that a Joint Committee could usefully address.

Finally, Amendment 56ZD requires that this decision,

“must take into account the best interests of any child affected”.

No doubt the Minister will point to the very welcome Amendment 58 that explicitly writes the Section 55 children’s duty into the Bill. However, Section 55 applies only to children who are in the UK. Thus the duty would not apply if the child affected—who may be a British citizen—happens to be abroad at the time, as is quite possible. A child is a child, wherever that child happens to be. I cannot believe that a Government who have repeatedly reiterated their belief in the best interest principle are really saying that that principle does not apply if the child happens to be out of the country.

I made it clear at the outset that the best way to resolve the issues raised by the JCHR is through the appointment of a Joint Committee as provided for by Amendment 56. Indeed the JCHR itself complained about the lack of public consultation and its detrimental impact on the parliamentary scrutiny of this clause. As the noble Lord, Lord Deben, said in Committee,

“statelessness is one of the most terrible things that can befall anyone”.—[Official Report, 19/3/14; col. 212.]

The Minister has himself spoken of the evil of statelessness. In the words of Dr Matthew Gibney of the Refugee Studies Centre at Oxford University, to be stateless,

“may be a recipe for exclusion, precariousness and general dispossession”.

This will be the first measure adopted by the UK in recent years that would give rise directly to an increase in the number of stateless people in the world condemned to be dispossessed,

“without the right to have rights”,

as Hannah Arendt so memorably put it. This House has a duty to prevent this clause going any further without the full and detailed scrutiny it warrants by a committee of both Houses.

[Lord Brown of Eaton-under-Heywood]

My Lords, that Clause 64 is highly contentious and far from obviously a good idea is perfectly plain. It is plain, indeed, from the Minister’s own recognition in Amendment 56A that a review of its operation will be required even if the provision is enacted. The critical difference between the Government’s amendment and our own is that we say that there should be no such drastic provision enacted as this without its first being subjected to full and proper consideration, and that of course would happen under our amendment. This really is a matter of fundamental principle.

It is true to say, as the Minister noted in Committee, that someone can already be made stateless if deprived of their citizenship having originally obtained naturalisation by fraud. That is perhaps understandable. The person would never have obtained British citizenship in the first place but for having committed fraud. To render stateless someone who has already properly gained citizenship by naturalisation is, I would suggest, quite another matter. Of course one must recognise that the power would arise only in respect of those who had betrayed the trust which we as a nation put in them when we granted them naturalisation and who now themselves create a risk to national security. For my part, I can readily see the temptation to say, “Well, they, too, therefore can properly be made stateless”. This is a temptation which I truly believe that, as a nation proud—and rightly proud—of our human rights record, we should resist.