Justice and Security Bill [HL]
Lord Carlile of Berriew Excerpts(13 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Carlile of Berriew
My Lords, I welcome the opportunity to say a few words on this amendment, mainly because I always listen with great respect to the noble Lord, Lord Campbell-Savours. His knowledge of parliamentary procedure is second to none and he is probably the most skilful of anyone I have observed in what one might call the parliamentary maze. However, I disagree with his proposal that there should be a Select Committee for the following and other reasons.
First, intelligence is not created in a vacuum but for a reason. Sometimes it is found to be created for a reason that proves to be suspect but not necessarily to be followed. It is not completely free of scrutiny; far from it. A little later in the Bill there are references to the Intelligence Services Commissioner. I am bound to say—I said this before when I was independent reviewer of terrorism legislation—that the Government and the security services could give a more coherent and fuller narrative of what they do. I pay tribute to the noble Baroness, Lady Manningham-Buller. She started the process in a convincing way of giving at least some narrative that enabled not only the public but, perhaps more importantly, parliamentarians in the first instance to understand why certain things were being done and certain actions taken. It is subject to oversight and it is necessarily subject to confidentiality. Accountability is very important but we have to face up to the fact that full transparency can never be achieved, and indeed should never be achieved for it runs the risk of exposing those who do very difficult tasks for our intelligence service to risks to which we would not wish them to be exposed.
Furthermore, a Select Committee of either the other place or both Houses involves the normal Select Committee procedures. It is very difficult to limit those procedures because Parliament makes its own rules. Those of us such as the noble Lord, Lord Campbell-Savours, a number of others present and me—derided as we are by some for having been in the House of Commons before coming here—know something that possibly not everyone else knows, which is that Erskine May is not like a legal textbook. The rules of parliamentary procedure are often made up as you go along and one cannot anticipate clearly what they will be. Sometimes the mood of the nation changes those rules. Think back to what happened in London on 7 July 2005 to see the emotion that followed those events and how easy it would have been for parliamentary procedure to have been changed, either to make a Select Committee much more secretive in its approach— inappropriately so perhaps—or to go the other way and open up everything to public scrutiny.
If Members of this House or another place are appointed to Select Committees by the normal route, it exposes much of what is given to them to their staff. The Government should be entitled to look at the ability of the proposed members of a committee to retain and hold to confidential material and the reliability of their staff. The one thing one cannot afford in this area is inadvertent leaks or the innocently meant, but foolish, acts of the unwise.
What the Government propose in this Bill is, in my judgment, appropriate. We have a committee that is accountable but not wholly transparent for perfectly good reasons. It has the capacity to look at secrets in detail but within an appropriate context—as limited, for example, by Clause 2(3), which means that the Prime Minister and the ISC must be satisfied as to the part that anything that might be inquired into plays in any ongoing national security operation.
My judgment, for what it is worth, is that what the Government propose in this Bill creates a prudent and carefully thought-out structure for the proper and rigorous scrutiny of how secret material is dealt with by Her Majesty’s Government. There is a danger that we play into the hands of those who believe that because something is secret there is some kind of ghastly Executive conspiracy going on. That is completely untrue. Of course, mistakes are made; there are people in the secret services who have to delve into the most difficult things that face our society, and they are bound to make mistakes. I hope that occasionally they do make the odd mistake in the protection of the public, because overcaution is not a bad thing if it saves lives—sometimes large numbers of lives. But the menu provided in this Bill allows the proper balance, and I shall, if necessary, not support the noble Lord’s amendment.
Lord King of Bridgwater
The noble Lord has great experience in these areas, and I take it from the tenor of his argument that he is not advocating a Select Committee approach. He said that he was in favour of what the Government have in the Bill, but since then the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, have produced amendments. What is his view on those?
Lord Carlile of Berriew
At the moment I am dealing with the amendment proposed by the noble Lord, Lord Campbell-Savours. I listened with great care to my noble friend Lord Henley from the Front Bench, and I am very content with the approach that he has taken. We should wait and see what the Government come up with in answer to the noble Lord, Lord Butler, who has great wisdom and experience in these things—I am completely open-minded about that. But I am not happy with the idea that we should have a conventional Select Committee or, even worse, a Select Committee whose rules have been fiddled with for this purpose.
Lord Elystan-Morgan
My Lords, like many Members I have been greatly impressed by the contribution made by the noble Lords, Lord Campbell-Savours and Lord Carlile. Both have the gift of being able to articulate their views with awesome clarity and very great force. If one had to, I should find it somewhat difficult to decide which one is correct in this matter. However, in respect of this debate and the earlier Amendments 1 and 2, it seems that everybody’s objectives point very much in the same direction.
In the first instance is the desire for sovereignty and independence for this particular body. By sovereignty one means that it is an organ, extension and delegation of Parliament, to such a degree that, as far as the Bill of Rights is concerned, it would be unchallengeable in the courts. I think that we are all agreed on that matter. At the same time, it has to be independent of the Executive and Prime Minister, which means that it should be, to use a canine expression, the watchdog of Parliament rather than the poodle of the Prime Minister. It is much easier to enunciate that principle than to work it out exactly because, by definition, the Prime Minister and to a large extent the Home Secretary has a constant flow of intelligence information, which will simply not be disseminated generally.
My other point relates to Select Committees. I listened carefully to the noble Marquess, Lord Lothian, and believe that the concept of a Select Committee is sufficiently broad and flexible to allow a great deal to be done of the nature suggested by the noble Lord, Lord Campbell-Savours. I would have thought that a Select Committee could always decide whether to sit in public or not and, if so, on exactly what terms. A Select Committee can decide whether a single word of its report is to be published or whether there is to be general publication, subject to sidelining. Sidelining, of course, can be a severe sanction. I will never forget the day, in about 1967, when I was a Member of the House of Commons and that flamboyant and splendid Member of Parliament Tam Dalyell was hauled before the House to answer a serious charge of contempt. It related to a Select Committee that was looking into the affairs of Porton Down, a most delicate situation as we all appreciate. There was an awesome hush; it was almost like a public flogging. There was the miscreant standing ashen-faced at the Bar of the House. It taught me a lesson about the tremendous and terrible jurisdiction that the House of Commons has, if it wishes to use it in a situation like that.
Where do we arrive? First, at a body that is not appointed by the Prime Minister; secondly, a body that is unchallengeable in the courts; and thirdly, a body—possibly a Select Committee—that is able to do its work with the confidence of the public, and yet able to maintain an absolute confidentiality which is so important to its very function.
Justice: Evidence
Lord Carlile of Berriew Excerpts(13 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Henley
My Lords, I am sure that the group will want to reflect on the implications of the judgment to which the noble and learned Lord referred in the European Court of Human Rights and to reflect on the remarks of the Lord Chief Justice when he said that the United Kingdom courts should give due weight to decisions from the European Court of Human Rights. However, the noble and learned Lord should recognise that experience in other countries, whether they are bound by the European Court of Human Rights or not, is that using intercept as evidence involves significant operational burdens, and that the review is helping to address those issues by trying to find the right balance between advantage, costs and risks.
Lord Carlile of Berriew
Will my noble friend the Minister confirm that the Privy Council review has been looking at a very small number of possible models for admissibility and that the key issues, as the noble and learned Lord, Lord Lloyd, said, concern the ECHR, upon which the review might perhaps take note of the recent and very helpful public comments of the noble and learned Lord, Lord Irvine? Will the Minister try to ensure that, given that all the legwork has actually been done now, an announcement is made within weeks rather than months?
Lord Henley
My Lords, it is not for me to decide when the Privy Council group should make its decisions. That must be a matter for the group itself. As I stressed at the beginning, there have been changes to the membership of that group, which has complicated matters and slowed things down somewhat. As I said, I am sure that the group will take account of the implications of the judgment in the European Court of Human Rights and of the views expressed by the noble and learned Lord, Lord Irvine.
Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011
Lord Carlile of Berriew Excerpts(13 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Anderson of Swansea
My Lords, this has been a remarkable debate. I only wish that there had been a similar debate in the other place, but there was not. We have heard two former Lord Chancellors taking different views, and two members of the Bishop’s Bench taking opposite views, in the same debate. The remarkable fact is that there has also been substantial common ground in almost all the speeches that have been made. First, this is clearly a highly sensitive issue involving deep matters of principle. Secondly, churches that do not wish to register civil partnerships should not be obliged to do so, but conversely churches that do wish to do so should be allowed to do so. The Government have made a serious attempt in these regulations to put these matters into law. Today’s decision clearly depends on a judgment as to whether, after the proper consultation by the Government, they have succeeded in that aim.
I shall briefly give my own explanation of this. It is clear that, because of the exemption to the Roman Catholic Church, the Church of England and the church in Wales, they have been largely satisfied that the safeguards are sufficient for them. It is also clear that there have been learned and weighty opinions on both sides of the argument. Professor Hill has been mentioned, as have Mr O’Neill and Mr Goulding. The advice of the noble Lord, Lord Henley, in his letter of 13 December, states that the lawyers appear to contradict one another.
For me the question is this: is there a doubt that the regulations have properly put into effect the views of the Government? If there is a doubt, is it a fanciful doubt or is it a serious doubt? Is there at the very least an arguable case that the Government have failed to provide adequate safeguards? The lawyers’ different views and the views expressed today suggest that there is a real, not a fanciful, doubt and the churches should not have to defend themselves against possible well resourced litigants.
I note the undertaking given by the Minister in his letter, which I have cited, that if, contrary to his view, there were to be a successful legal challenge, if one were to be brought, there would be an immediate review by government. That is welcome as far it goes, and I hope that in replying the Minister will put in his speech similar, or perhaps even stronger, undertakings. No Government can bind their successors and it is surely far better for the Government to end any possible doubt by taking these regulations back and by showing that there are amendments that close a possible loophole, thus preventing a serious legal challenge being made to them. The noble and learned Lord, Lord Mackay, has suggested one way in which this should be done. Mr O’Neill has suggested another way. That is the reasonable response which the House should make today.
Baroness Verma
My Lords, if the noble Lord, Lord Carlile, could speak, we could then hear from the Labour Benches.
Lord Lester of Herne Hill
I should say that I am not a learned Lord. Whether I am a noble Lord is another matter.
Lord Lester of Herne Hill
If there is vexatious litigation, it should be struck out by the court as vexatious and nothing more should be done about it. What I am endeavouring to say—I am not doing very well because I am quoting from a detailed opinion, but I thought the House deserved to have that opinion before it because of the authority that it gives—is that the clarity provision was not necessary because a proper construction of the provisions of the Equality Act makes it absolutely clear that any discrimination claim, either about the provision of services or about the public sector duty, would be doomed to failure.
There is one further point. In the case of Pepper v Hart, the House of Lords in its judicial capacity held that, were there any ambiguity in legislation, one could have regard to the parliamentary record to resolve the ambiguity. Quite apart from Section 13 of the Human Rights Act 1998, which the noble Lord, Lord Pannick, referred to, I have no doubt that, were there any ambiguity—in my view, there is none whatever—then the Supreme Court and the lower courts would have regard to statements made by the noble Baroness, Lady Royall, when she was leading for the previous Government, to the assurances given by the former Solicitor-General Vera Baird QC and to the statements that will be given shortly by my noble friend the Minister today. Those statements will all be one way. They will all indicate the true intention of the legislation. Therefore, were there to be any ambiguity, it would be resolved, if it had to be, judicially.
In my view, which is the same as that of the noble and learned Lord, Lord Falconer, the noble Lord, Lord Pannick, others who have spoken, the Church of England’s legal advisers and others, there is no conceivable doubt that a challenge would be hopeless. If, as a discrimination lawyer with 40 years’ experience, I were asked what my views would be about this, I would say, “You have not got a snowball’s chance in hell”.
Baroness Anelay of St Johns
My Lords, perhaps I might at this stage respond to some of the comments made around the House. I know that there is a feeling that we have had a learned and full debate and that, after my noble friend Lord Carlile of Berriew has spoken—I understand he will speak just briefly—at that stage we might invite the Leader of the Opposition to make her winding-up speech.
Lord Carlile of Berriew
My Lords, if the opinion of the House is tested on this Motion to annul I shall be voting against the proposition of my noble friend Lady O’Cathain. I want to say at the outset of what I hope will be brief remarks that I am sure she knows that I have enormous respect for her. She and I have stood shoulder to shoulder on issues of conscience in this House and will do so again. However, I am bound to say that, in my view, this is about as far from an issue of conscience as we could get. This is a matter of law, essentially.
We have heard from some much more balletic legal minds than mine during the debate. Indeed, your Lordships may be under the impression that the head of the pin is extremely crowded. As my noble and, in some cases, noble and learned friends—and in the case of the noble Lord, Lord Lester, my noble and very busy friend—dance on the head of that pin, you will have observed that there is barely room for the legal books they are using.
All I will say as one of the QCs in your Lordships’ House is that I think the arguments have been very powerfully put before your Lordships by the noble and learned Lord, Lord Falconer, the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Lester of Herne Hill, and I agree with them. I hope that your Lordships are not going to fall into the trap of deciding how to vote if there is a Division on the basis that, because some lawyers disagree, we are all going to throw our hands up in the air and leave it to someone else to decide. Let us never forget that we are in the high court of Parliament. With all the knowledge in this Chamber, I venture that your Lordships are well able to reach a decision on the basis of the arguments that have been presented—and the arguments are absolutely overwhelming.
During my 40-odd years at the Bar I have advised on issues and gone into, for example, the Court of Appeal with what I had thought was a very arguable case, and found myself metaphorically blood-spattered on the floor within minutes, if not seconds. The legal analyses that we have heard in your Lordships’ House have plainly left us with the opinion—the only responsible opinion—that there is no realistic possibility whatever of religious organisations or priests being forced in any way to do anything in this context which is against their conscience.
Lord Framlingham
The noble Lord will appreciate that the debate today has been legalistic—because this is obviously what this Chamber does—but the ramifications outside the Chamber may not be legalistic. On the point that the noble Lord is making about allowing, will he agree that to allow, although it is not to encourage or force on people, can sometimes have that effect. That is my concern having seen that many Acts of Parliament have had effects that we were not aware of. I believe that if we are not careful, this one will bring the kind of pressure to bear on Church of England priests that the right reverend Prelate the Bishop of Blackburn has indicated.
Lord Carlile of Berriew
I respectfully but absolutely reject the contention that has just been made. Indeed, it is somewhat similar to the contention made by my noble friend Lord Cormack, who spent a great number of years as a very distinguished Member of another place. He often had to wrestle between his principles and his interests, as all Members of Parliament do, and I doubt that he found it more difficult than any Church of England or other priest or other religious official would find it to stick to his conscience when his conscience told him what was right, particularly when supported by the institution to which he belongs.
Finally, my noble friend Lord Lester mentioned the decision of the House of Lords as a court in Pepper v Hart. That is the one matter that was omitted earlier and is of very great importance. In the event of somebody being prepared to take the financial risk of bringing what in reality would be a completely hopeless case before the courts, it is beyond peradventure that the statement that we know will be made by my noble friend Lord Henley from the Front Bench today, because we have been given a trail of it, would be cited in court and would be extremely influential in the determination of any ambiguity. I therefore respectfully suggest to your Lordships that we have actually taken a great deal of time today, albeit in a very interesting debate, in discussing something that is really not a problem at all.
Baroness Royall of Blaisdon
My Lords, we have heard today some extraordinarily powerful and important speeches. When we were in government, one measure that we were most proud of, rightly I believe, was the Equality Act 2010, which we managed to pass through Parliament just before the general election. We did so with the support of the Conservative Party and the Liberal Democrats, then both in opposition. The parties opposite were consistent in their support for the legislation; I thanked them for it then and I thank them for it now, although I am concerned about a few aspects of the Act that are being chipped away. But that is not an issue for today.
When my noble friend Lord Alli moved his amendment and it was adopted by this House during the passage of the Bill, I was not able to fully support him. But I am delighted that his amendment was adopted and has resulted in the regulations before us today. The overriding point about the regulations and the legislative clause in the Act to which they refer is that, as so many noble Lords have said, they are permissive. They permit churches and any other religious premises to enable two people to register as civil partners of each other under the terms of Section 6(3A)(a) of the 2004 Act.
I warmly welcome so many speeches today, but especially the contribution from the noble Baroness, Lady Richardson of Calow, who was absolutely right to point out very forcefully that the provisions are permissive. They do not in any way require churches to provide civil partnerships to take place. They do not order them to do so or compel them to do so; they simply make it possible for them to do so should they so wish.
The noble Baroness, Lady O’Cathain, argues that the proposals are not sufficient to protect faith groups from being compelled to register civil partnerships when it is against their beliefs. The noble Baroness is supported by a number of legal opinions. However, we believe that the legislation itself is clear. Section 202(4) of the Equality Act 2010 provides that the following should be inserted after Section 6(3) of the Civil Partnership Act 2004:
“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so”.
That expressly states the point—the wording is clear and the meaning is clear, and we believe that the effect is clear—and so do the regulations in front of us today, which state, in Regulation 2(3), that the following should be inserted into the Marriages and Civil Partnerships (Approved Premises) Regulations 2005:
“Nothing in these Regulations places an obligation on a proprietor or trustee of religious premises to make an application for approval of those premises as a place at which two people may register as civil partners of each other in pursuance of section 6(3A)(a) of the 2004 Act”.
Again, there is clear wording, clear meaning and clear effect.
The noble Baroness, Lady O’Cathain, has deployed legal opinions that support her view, quite properly, primarily those from Professor Mark Hill QC and Aidan O’Neill QC. But many noble Lords from all Benches have cited a number of different opinions today, and the speech from my noble and learned friend Lord Falconer of Thoroton was masterful and gave a very clear opinion. His responsible views were unequivocal and were supported by many noble Lords throughout the Chamber today.
It was useful and heartening to hear the views expressed by the right reverend Prelate the Bishop of Oxford, who confirmed that the necessary safeguards are in place according to the Legal Office of the General Synod of the Church of England. I hear of course the differing views expressed by the right reverend Prelate the Bishop of Blackburn, but I believe that many of the issues raised by the right revered Prelate the Bishop of Blackburn are matters for the General Synod itself, and not for this House or the Houses of Parliament. It is also important to consider a statement from the Catholic Bishops’ Conference of England and Wales, which takes a similar view to the Church of England:
“As the regulations require prior consent, the measure can have no impact on Catholic premises. The church welcomes the fact that the Government has made an explicit statement in the draft regulations that nothing in them creates any obligation to make an application for approval. This will help rebut any attempt to mount spurious cases of unlawful discrimination against churches which do not host civil partnerships”.
The Government’s clear view is set out in their summary of responses to their consultation on civil partnerships on religious premises, published last month, and I agree with the view expressed. The noble Lord, Lord Henley, Minister of State at the Home Office, says in a letter this week to Members of your Lordships’ House:
“I must stress that this provision is entirely permissive. We are entirely confident that faith groups will not be forced to host civil partnership registrations if they do not wish to do so”.
He goes further, by indicating further legislation if necessary. The Government’s clarity and confidence, which we as an Opposition share, is supported by the statutory body on discrimination, the Equality and Human Rights Commission, which states in its response to the consultation:
“The Commission is also pleased that this provision is voluntary, placing no obligation on religious communities to conduct such ceremonies where this would be against their conscience or religious beliefs”.
We have heard a plethora of legal opinions in this debate, but also the important views of many noble Lords who do not have legal experience. Most importantly, we have heard the views of my noble friend Lord Alli. When he moved the original amendment in your Lordships’ House, he could not have been clearer:
“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so”.
He has been equally clear today. These are compelling arguments, and I believe that they are conclusive arguments. There is nothing in the legislation or in these regulations which requires churches to host civil partnerships. The legislation and the regulations associated with it were designed to be permissive and not compulsory; they are written to be permissive and not compulsory; and they are best interpreted as being permissive and not compulsory. Some noble Lords have mentioned fear. Like the right reverend Prelate the Bishop of Oxford, I believe that we must act in a spirit of mutual respect and generosity.
If the noble Baroness, Lady O’Cathain, should test the opinion of the House today, we on these Benches will be opposing the noble Baroness and supporting the regulations. And yes, we have a Whip on, because we believe it is right to do so. I believe the record of my party, the Labour Party, on equality issues, is second to none, and we intend to maintain it in the Lobbies today if this matter does go to a Division.
The provision to allow, if they so wish, churches to host civil partnerships, is a good provision. The regulations are good regulations, and the original legislation—our own—was good legislation. I urge the House to support the regulations, and to sustain legislation of which this House should be proud in having played its part to get on to the statute book of this country.
Children: Secure Children’s Homes
Lord Carlile of Berriew Excerpts(13 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Carlile of Berriew
My Lords, I congratulate my noble friend Lady Linklater on her ability in presenting, and on securing, this debate on an important and valuable subject. I also congratulate my noble friend Lady Shackleton on her excellent maiden speech. I found it quite moving, coming from the same parental and grandparental background that she does. She may find that that background is a real driver towards contributions on matters on which one feels strongly in this House—where good argument is heard with patience and respect, and where bad argument is rejected with mere politeness. I am sure that she will make a great contribution to our affairs.
I recognise in the speeches that have been made so far, and in some of the briefings that heralded this debate, the statistical soup that can surround this subject about offending children and young people. It points in many different directions but always produces the same unpalatable reduction, which is that we are not succeeding in reforming the activities of children in custody and sending them out quickly into society as people who will not go through the revolving door of custody, time after time. Unfortunately, the picture is of a very fast-revolving door.
The cohort of residents in custody has multiple issues to face up to. They are troubled and we do nothing to deal with that trouble constructively, except in a relatively small number of cases. We have one of the lowest ages of criminal responsibility in the world, yet we have a higher recidivism rate among children than almost anywhere else in the world and, despite having spent many years looking at this subject, I do not quite understand what we are doing wrong. However, I believe that the kind of regime provided in local authority secure children’s homes has been far better designed to reform than anything provided in secure training centres or young offender institutions.
Five and a half years ago I chaired an inquiry for the Howard League for Penal Reform, of which I am currently the president, on the use of restraint, strip-searching and isolation among children in custody. It was not happening in local authority secure children’s homes. It was happening in other institutions. It is still happening in other institutions. The Howard League this year conducted a two-day evidence hearing that I chaired to see what had happened in the five years since the report was produced in 2006. Some good progress had been made; the provisions made for young people in custody have improved the situation, and I share the view that it is good news that far fewer young people are in custody—particularly those between 14 and 16 years of age—than before. Nevertheless, far too much restraint is still being used.
What is it that secure children's homes provided that enabled us to avoid those pitfalls of restraint, strip-searching and isolation? It was a number of qualities. First, they were small; they are small. It is within something that is much more like home that children learn the habits of a home. One of my observations, having visited secure children's homes and other custodial institutions for children and young people, is that most of the young people in them have never enjoyed the sort of home to which my noble friend Lady Shackleton referred movingly in her maiden speech. Putting them into an animalised, brutalised structure contributes to that feeling of dissociation.
Next, secure children's homes have high ratios of well trained staff, specialist staff who understand children. It is self-evident that we should deal with children as children, not as criminals, if we are to succeed in reforming them and turning them from children into adults, rather than from child criminals into recidivists. Next, they have education. Secure children's homes, in my view, have a very high standard of education. With that, they combine therapeutic and behavioural provision tailored to children's needs. That provision is not being made adequately in the other parts of the child and youth custodial setting. Therefore, the Government should be looking at more, smaller units, far more like secure children's homes, rather than going in the opposite direction, towards larger institutions, which appears to be policy at present.
Terrorism Prevention and Investigation Measures Bill
Lord Carlile of Berriew Excerpts(13 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Carlile of Berriew
My Lords, in this context, unlike my noble friends and other noble Lords who have spoken, I propose to speak in support of the Government and of the proposals in this part of the Bill. I hesitate to dice with a great historian on matters of history, but I say to the noble Lord, Lord Morgan, that he was a little selective in his expression of the historical context. First, in describing Regulation 18B, perhaps he should have told the House that it was of a completely different character. The way in which it was made meant that the victim or subject knew nothing at all of the reasons why the order was made. The so-called tribunal that heard Regulation 18B cases was completely lacking in transparency of any kind. The great dissenting judgment of that wonderful Welsh judge, Lord Atkin, in Liversidge v Anderson took decades to be accepted as the norm for judicial review. Although Churchill described Regulation 18B and its procedures as,
“in the highest degree odious”,
a phrase that has become celebrated, the fact remains that during Churchill’s prime ministership numerous people—indeed, hundreds of people—were imprisoned as a result of it, and he did not take steps to legislate in favour of that dissenting judgment. Indeed, it was long after he had ceased to be Prime Minister that that happened. I think that the lessons of history as described by the noble Lord are not terribly helpful.
One should also bear in mind that whether we are talking about control orders or the diluted version in TPIMs—admittedly only slightly diluted, apart from the matter that we are going to consider in the next group—they do not involve the incarceration of the individual. They involve some restrictions on the individual’s freedom which I understand most in this House regard as proportionate and reasonable given the requirements of national security.
My noble friend looks as though he wants to intervene, but then he always does. Does he want to?
Lord Phillips of Sudbury
He does. It seems to me that my noble friend’s historic account of Regulation 18B omits to mention that it was prevalent during wartime and that, as soon as that was over, it was repealed.
Lord Carlile of Berriew
Which was one of the reasons why it was so unjust, because a very large number of people were made the subject of Regulation 18B and almost none of them had any evidence of any kind whatever against them. When we are dealing with TPIMs or control orders, we have individuals against whom there is very robust intelligence. I do not think my noble friend has had the opportunity to read that intelligence, but had he done so he would undoubtedly be so satisfied, being a reasonable person.
Lord Morgan
I do not propose to review the noble Lord’s review of my version of history, but I think it worth pointing out that the ignorance of the evidence against them is precisely one of the problems in this case. The noble Lord rightly says that there is intercept evidence, but it is evidence denied to the person. I agree that the person is not incarcerated but he is seriously restricted.
Lord Carlile of Berriew
I do not know whether the noble Lord has studied the effect of the case of AF (No. 3), but if he were so to do, he would find that there is a requirement for the court. Successive Home Secretaries, close to whose department I have worked, have always been assiduous to ensure that there was sufficient material—particularly since AF (No. 3)—so that the individual concerned knew the case he had to meet, at least in gisting terms. I urge the noble Lord to read the Green Paper published today by the Ministry of Justice, Justice and Security, which deals in part with these matters.
I would like to move on to the substance of these amendments. The noble and learned Lord, Lord Lloyd of Berwick, called into his argument the requirement for a court to approve a derogating control order under the 2005 Act. In deploying that argument, surely we should remember that, first, there have been no derogating control orders under the 2005 Act; and secondly, had there been a derogating control order, it would have been so dramatic that we would have had to derogate from part of the European Convention on Human Rights. This would have required, in effect, a change to our constitution which plainly ought to be passed through the courts at the earliest possible phase. I am afraid that, with real respect, I reject that argument.
In dismissing deportation applications and deportation decisions that are made daily by Home Secretaries, the noble and learned Lord said that they are made against foreigners so it is less significant, but if he thinks back to the Belmarsh case that was decided at the end of 2004, he will recall that the Judicial Committee of this House, of which he was a most distinguished member at one time, held that discriminating in that way against foreigners was unlawful. Indeed, the so-called Belmarsh provisions were struck down because they were disproportionate and discriminated against foreigners by treating them differently from United Kingdom citizens.
Lord Carlile of Berriew
Perhaps I might finish this point before, predictably, the noble and learned Lord stands up. I do understand the distinction he is making. It seems to me, with great respect, somewhat casuistic.
Lord Lloyd of Berwick
Surely the noble Lord must accept and understand the difference between deporting a British subject and deporting an immigrant. It is obvious.
Lord Carlile of Berriew
What I understand is that a deportation decision can be made by the Home Secretary. The administrative court is considering these cases hour by hour, let alone day by day, often as matters of great urgency. It is considering cases in which people have been imprisoned. Sometimes, very young people are imprisoned in unpleasant circumstances in this country. I do not hear the noble and learned Lord saying that this is an act that should be the subject of approval by a judge. In any event, it would be a practical impossibility because the Upper Tribunal and the administrative court are swamped by more than 10,000 of these cases at present.
I also reflect on much simpler situations. It is suggested that taking a citizen’s freedom away is something that should be determined by a judge in every circumstance. But we even let police constables do it every day of the week. When a police constable arrests a citizen for something as “minor” as, for example, shoplifting, the person may be taken into custody on the fiat of a police constable. When people are charged with serious offences and not bailed, although they are brought before a judge quickly, as is envisaged in this Bill, they are taken off to such unpleasant places as Strangeways or Belmarsh and find themselves in custody until they are brought up fairly summarily before a judge. Although it goes without saying that judges in every instance are very careful in considering such cases, the care they take does not bear comparison with the care that High Court judges give to controlees in control order cases.
We have already mentioned deportation cases. Organisations are proscribed by the Secretary of State, taking the precious freedom of association and membership of groups away from citizens of this country and foreigners without discriminating between them. Decisions are made to invade people’s privacy in what may be an outrageous way by warrants to intercept their telephones as a result of administrative acts. They are not brought before a court. Certainly, retired judges are involved in these decisions but these are not transparent hearings with evidence and tribunals. The subject does not even know that it is happening. In addition, covert surveillance, which can be an appalling invasion of people’s privacy, is performed as an executive act.
It seems to me that there is some confusion here among my noble friends and other noble Lords in their analysis of the roles of different parts of the state apparatus in the conduct of state business. In my judgment, for what little it is worth, the act of making a TPIM or a control order has exactly the character of ministerial responsibility that successive Home Secretaries, some of whom are noted Members of your Lordships’ House, are able to carry out. What follows has exactly the character of judicial scrutiny which judges are extremely well able to carry out and are experienced in carrying out. It seems to me to be a clear part of our constitutional settlement and to fit within it very clearly.
The standard of proof is not an easy question and I do not pretend that there is a perfect answer to it. If one reads through the open judgments in control order cases, one sees that the reasoning of judges in those cases has been very strong. In almost every case, I would venture that in reality the judgment has been made on the balance of probabilities and I would not have a particular difficulty if that was the standard set.
However, there is a danger of underestimating the difference between reasonable grounds to suspect and reasonable grounds to believe. As a judge on the Judicial Committee of this House put it on one occasion: “Reasonable grounds to suspect means I suspect that it may be so, while reasonable grounds to believe means I believe that it is so”. It seems to me that the executive act of a Minister asking the question “Do I believe it to be so?” is a proper standard to set and can be scrutinised carefully by the courts. If the proof of the pudding is ever in the eating in court, that is what has happened with control orders.
So far as a one-year TPIM with a two-year limit is concerned, when I was the independent reviewer of terrorism legislation I always supported a two-year limit, and I still do. I see no reason why there should not be a one-year limit with an extension available. That seems to accord with the purpose of control orders or TPIMs. One can reasonably expect that during a one or two-year period, the potential of the individual concerned to be a terrorist is much reduced as a result of the order. However, I do have to say to noble Lords that there are cases where that has not been so, and there would have to be some exceptional provision so that those who, despite a TPIM, continue to be active in terrorism should be subject to a new order if the evidence is available at the end of a two-year period.
“Residence measureA1 (1) The Secretary of State may impose restrictions on the individual in relation to the residence in which the individual resides.
(2) The Secretary of State may, in particular, impose any of the following—
(a) a requirement to reside at a specified residence;(b) a requirement not to allow others to reside at that residence without the permission of the Secretary of State;(c) a requirement, applicable between such hours as are specified, to remain at the specified residence.(3) The specified residence—
(a) may be in any locality in the United Kingdom that appears to the Secretary of State to be appropriate;(b) may be a residence provided by or on behalf of the Secretary of State(4) If the specified residence is provided to the individual by or on behalf of the Secretary of State, the Secretary of State may require the individual to comply with any specified terms of occupancy of that residence (which may be specified by reference to a lease or other document).
(5) A requirement of the kind mentioned in sub-paragraph (2)(c) must include provision to enable the individual to apply for the permission of the Secretary of State to be away from the specified residence, for the whole or part of any applicable period, on one or more occasions.
(6) The Secretary of State may grant such permission subject to either or both of the following conditions—
(a) the condition that the individual remains overnight at other agreed premises between such hours as the Secretary of State may require;(b) the condition that the individual complies with such other restrictions in relation to the individual’s movements whilst away from the specified residence as may be so required.(7) “Agreed premises” are premises in the United Kingdom which are agreed by the Secretary of State and the individual.
(8) Sub-paragraph (6) is not to be read as limiting—
(a) the generality of sub-paragraph (7) of paragraph 14 (power to impose conditions when granting permission), or(b) the power to impose further conditions under that sub-paragraph in connection with permission granted by virtue of sub-paragraph (5) of this paragraph.(9) In sub-paragraph (7) “applicable period” means a period for which the individual is required to remain at the specified residence by virtue of a restriction imposed under this paragraph.”
Lord Carlile of Berriew
My Lords, in tabling this amendment, I am grateful for the support of the noble Lord, Lord Hunt of Kings Heath, who has put his name to it. This group of amendments is about relocation, an issue we discussed at Second Reading. The first sentence of the executive summary of the Justice and Security Green Paper, published today by the Ministry of Justice, is:
“The first duty of government is to safeguard our national security. In delivering this duty, the Government produces and receives sensitive information”.
I do not want to repeat at great length the arguments on relocation presented at Second Reading. I simply want to reiterate that the sensitive information, the security that the Government have received, points to the need, for the time being at least, to continue as part of the main legislation the power to order relocation, used sparingly as it is and subject to the scrutiny of the courts.
I have drafted the amendment so as to keep the existing control order provisions for relocation until after the Olympic Games, choosing a date after 1 January 2013. At that point, it would be open—and I am completely open-minded about this—to the Government to come back to Parliament and to replace the relocation provisions with what is in the Bill, which would remove relocation subject to emergency legislation. All that would be required would be an affirmative resolution of both Houses. There would therefore be a debate in which the Government would pass to each House of Parliament the advice that they have received from the security services, including the sensitive information to which I referred earlier.
I can best make my argument for this group of amendments by asking the Minister a series of questions. First, is it correct that the National Security Council, which is made up of Ministers only, has been advised against the removal of relocation from the list of available powers? If the NSC was so advised, I suspect that the Minister will be driven to confirm that the removal of relocation is not as a result of a debate on the merits but as a result of political considerations founded on the manifestos of the two partners in the coalition. I am as enthusiastic about the coalition as most Liberal Democrats—well, nearly—but I am not enthusiastic about political considerations trumping national security, which is what I fear may have happened.
My second question is: have Her Majesty's Government received any advice from those who are currently operational in MI5, MI6, GCHQ or SO15, the counterterrorism command, that the relocation power has become an unnecessary component of national security for the time being? If they have, perhaps they will tell us what it is and whence it came, because my belief is that the advice will be eccentric and not in the mainstream.
My third question is: does any part of the informed security bodies—those with the information—support the removal of the relocation power before the Olympics and Paralympics, as opposed to after them? In other words, what consideration has been given to the pinch point that will be created by the Games? We should remember in this context that we are talking about the security not only of the Olympic Park and the other venues where Olympic and Paralympic events will take place. One effect of the Games on policing in this country will be that a large number of police officers will be removed from their normal duties up and down the country—dare I say to the Minister, in Cumbria for example? Those officers will find themselves in unfamiliar places in east London, protecting the Olympic Park. Perhaps not in Cumbria but in some of our bigger and more populous resorts during the summer, there will be an increased risk of terrorism events going undetected.
My fourth question, which is connected, is really a rhetorical question. Surely on the basis of the evidence the Government must accept that they would be fulfilling what the Green Paper describes as the first duty of government by retaining relocation until after the Olympics and Paralympics are over.
My fifth question relates to something that was raised at Second Reading: the case of CD and the judgment of Mr Justice Simon. When the CD case was heard earlier this year, did Her Majesty's Government consider it proportionate and in the interests of national security to request a relocation component in CD’s control order? If they did, I come to my final question: have they changed their mind about CD? If they have, why have they done so?
The decision in the case of CD was taken on the basis of arguments presented on behalf of the Government, with special counsel present, after the publication of the counterterrorism review that was independently and very capably scrutinised by my noble friend Lord Macdonald of River Glaven. If the Government had decided that relocation was no longer necessary, it is surprising that they bothered to make the argument against CD. One should, after all, contrast it with the decision made in relation to Section 44 stop and search, which remained on the statute book long after the Home Secretary made the welcome announcement that it was in effect no longer to be used. I am driven to the conclusion that there was a merits argument in the Home Office about both these issues and that the decision that was taken on the merits was that Section 44 should no longer be used because we did not need it, but the decision that was taken on the merits in relation to relocation and CD was that it should continue to be used because we do need it. All that leads me very reluctantly to the conclusion that the removal of relocation has far less to do with the Government’s first duty than with meeting some arguments that have been made before this Government were formed and in a political context, including a very powerful argument made in a Times article by my noble friend Lord Macdonald before he was a Member of this House.
What I would ask the Minister to do is merely to confirm at this stage, because we will return to this later, that the Government are considering this matter and are now considering it on its merits. I beg to move.
Lord Hunt of Kings Heath
My Lords, I rise to support the noble Lord, Lord Carlile, and have added my name to his amendment. I really hope that the Minister will give this earnest consideration. He will know that I am highly critical of the Bill that he brings before us. It is clear that the exclusion provisions within control orders have proved to be highly effective. The evidence given by the deputy assistant commissioner to the Public Bill Committee in the other place was quite persuasive on that point. The noble Lord, Lord Carlile, has already referred to the case that the Home Secretary herself brought forward and argued for the use of such provisions. It is clear that the Government know that they may need these provisions in the future. That is why we have the enhanced TPIMs draft Bill for use if it were ever to be required.
We have the quite extraordinary provision in this Bill that if the enhanced provisions were to be required, and were to be required in the period between the Dissolution of Parliament and the first Queen’s Speech in the next Parliament, the Home Secretary is to be empowered by this Bill to use those provisions. If ever there were an admission that the Government know in their heart that they may need those provisions and, indeed, have used them in their period of office, there is the evidence.
We then come to the second issue that the noble Lord, Lord Carlile, has alluded to. It is whether it is right or sensible to remove those relocation provisions at the current time. We have the Olympics, and we also have the issue that, in lieu of the exclusion provisions, additional surveillance will have to be undertaken by the police at additional cost, with additional resources and using more people. The noble Lord will know that in the Public Bill Committee in the other place the deputy assistant commissioner expressed some concerns about the length of time that will be required by the police to put those measures into place.
The amendment moved by the noble Lord, Lord Carlile, quite brilliantly in my view, gets the Government off the hook for the period between the end of the Olympics and the beginning of 2013. It also says to the Government that, if at that time or beyond it they reach a conclusion that they do not need the exclusion provisions, they can simply bring an order before Parliament. No doubt Parliament would assent to that order, as it does assent to government orders. However, if the Government at that time are not so assured, they already have the provisions on the statute book with the benefit of them having gone through Parliament and being effectively scrutinised rather than using the very unsatisfactory approach of having an emergency Bill in the stocks ready for use.
I hope that the noble Lord, Lord Henley, might be sympathetic to the amendment in the name of the noble Lord, Lord Carlile. It is meant to be a constructive response to current circumstances. I certainly think that it warrants due consideration.
Lord Pannick
I am coming to that, but let us at the outset recognise the impact of a relocation measure. If one is going to adopt a measure or power of this sort, one needs to recognise the striking impact that it has on the spouse and the children. A measure that amounts to internal exile of a person needs a compelling justification.
Lord Carlile of Berriew
I know that the noble Lord eats legal authorities for breakfast, probably literally sometimes. I would just like him to give his comments on the cogent judgment and reasoning of Mr Justice Simon in CD, the case to which I referred, in which the judge took the matters the noble Lord has just mentioned into account and reached a considered conclusion. Does he say that the judge reached the wrong conclusion, giving undue proportion to some of the factors he was weighing?
Lord Pannick
Of course, the learned judge was considering the exercise of the powers that are contained under the control order regime. The Committee and the House have to consider what is a fair balance—this is the test that the Minister rightly has repeatedly propounded—between national security and the liberty of the individual.
Lord Carlile of Berriew
I promise not to intervene on the noble Lord’s speech again but he is ducking the question. Does he not accept that Mr Justice Simon in that case, having weighed up the facts, came to the conclusion that the safety of the state and of the public was better protected by relocation and that it was proportionate to the interests of CD? If so, should we not keep the situation as it was then?
Lord Pannick
The noble Lord can intervene as many times as he likes. I welcome his interventions. My answer to his point is twofold. We can always add more and more intrusive measures and protect ourselves more effectively from the perspective of national security. The question is: what is a fair balance? I am assuming that the Government, not just concerned about a particular individual case but looking at these issues as a whole, have concluded that relocation would undermine the fair balance because of its particularly intrusive nature and that the combination of the measures contained in the TPIM and the surveillance measures that can always be imposed on an individual who is not relocated will effectively protect the public. It is true that there is a financial cost, which is the point made by the noble Lord, Lord Hunt. Does the noble Lord wish to add to that?
Lord Henley
My Lords, one is always very careful when one speaks on these matters with a Treasury Minister sitting at one’s side. However, I can give an assurance to my noble friend that we have agreed extra resources for the Security Service over the next four-year period.
Lord Carlile of Berriew
My Lords, I am grateful to the Minister for his careful answer to this short debate. I regret that he has not answered any of my six questions and I invite him to write to me with answers to each of those quite specific questions. I regard the emergency legislation model provided in the Bill as a deeply dysfunctional form of legislation. It will be very difficult to bring into force, involving parliamentary debates that are almost impossible to construct in a way that is neither in contempt of court nor breaks the sub judice rule.
I of course welcome surveillance, whether over a short or long period, being enhanced by the provision of extra personnel and additional technical facilities. However, I say to the Minister, to my noble friend Lady Hamwee and to the House that it is much more easily said than done operationally. Many of the individuals against whom this kind of surveillance is deployed are very intuitive about surveillance provisions and often live in places where it is virtually impossible for the police to deploy the full range of surveillance facilities. That is one of the reasons why relocation has been a useful and proportionate measure.
However, at this stage it would not be right to press the matter to a Division—I have the perhaps over-optimistic feeling that common sense at some stage will prevail—and therefore I beg leave to withdraw the amendment, with the purpose of returning to this matter at a later stage.
Lord Carlile of Berriew
I speak in support of the amendment moved by the noble Lord, Lord Pannick. As the lawyers here who are familiar with disclosure issues involving national security will be aware, there are a number of areas in which there has been a great deal of satellite litigation in cases on the issue of disclosure. I suggest to the Minister that a sound principle could be established here.
I suspect that the noble Lord, Lord Pannick, might agree that it is a principle that could be extended to resolve some of the other issues on disclosure that have arisen in cases such as Norwich Pharmacal, Carnduff v Rock—another civil case—the Tariq case and, of course, that of Binyam Mohamed, in which different issues about the level of disclosure that should be permitted have arisen in different contexts. One of those issues relates to the control principle: the control that a foreign intelligence agency exerts over intelligence material available in the United Kingdom. I hope that the noble Lord, Lord Pannick, agrees that reducing all those principles to statutory form would be of great assistance and would provide something that gets us lawyers out of work but increases certainty—that is, legal certainty.
Baroness Hamwee
The issue is that to this individual, being in prison is more acceptable than being in his place of residence under a control order, with the restrictions imposed by the system. I am sure that the noble Lord has heard, from people who had been under control orders that were quashed, the impact they had on them and their families. The interference with anything that any of us would recognise as a normal life has been literally intolerable. That is the point I make to the Committee. I beg to move.
Lord Carlile of Berriew
My Lords, I applaud and support the sentiment behind my noble friend's amendment, but I suggest that it is not only unnecessary but would replace a considerable amount of flexibility with something rather less. On the case history that she has just recounted, I say that nobody has been arrested and charged with breach of a control order for failing to turn up at a police station once, an hour late. In every case, there has been an immense degree of tolerance before anyone has been charged. It is only after a very serious breach, or persistent and repeated breaches, that people are charged.
Nor do I recognise the credibility of the account my noble friend was given. When I was the independent reviewer of terrorism legislation, on a relatively small number of occasions—but several—I was able to visit controlees in their own homes, alone, one to one. On some occasions I visited them in homes to which they had been relocated. The notion of a state-appointed psychiatrist, however independent, turning up unsolicited at their home would have been no more comforting than One Day in the Life of Ivan Denisovich. It is a pretty bad idea.
I ask the Minister to confirm that the following occurs and will occur. First, where there is any suspicion or indication of the poor mental health of the controlee or of any member of his or her family, medical facilities will be put in place, including, if necessary, psychiatrists and psychologists, to deal with the problem; and that such facilities will be flexible and will be provided at the cost of the Home Office. Secondly, will the Minister confirm that the Control Order Review Group has met regularly ever since control orders were brought in, that it includes various people involved in scrutinising and observing the person concerned, and that it has always discussed such issues where they have arisen? Will he further confirm that under TPIMs, some kind of review group—I hope it will not be called TPIMsORG —will continue to meet and carry out that function? There is no evidence whatever that controlees have been treated improperly in the way that my noble friend set out.
On one occasion I suggested to the Home Office that there were some difficulties from time to time in giving controlees a single point of contact—perhaps a local police officer—who was aware of the situation and whom they could telephone if they had a problem. I believe that that has been put right, that they do all have someone to contact, and that sympathetic consideration is given to all difficulties of the kind that my noble friend has in mind.
Lord Henley
My Lords, my noble friend has been consistent over the years in her concern about the impact of control order obligations on individuals and on their health, in particular on their mental health. My first point is that TPIM notices are intentionally more limited in nature than those that can be imposed under control orders. We will no longer have lengthy curfews, compulsory relocation to another part of the country and total bans on communication equipment. Therefore, whatever the result, one would hope that the effect on individuals would be less than under control orders.
Despite the limitations that should significantly reduce the impact on individuals subject to TPIMs, I appreciate that my noble friend remains concerned about these issues. I agree with my noble friend Lord Carlile that the amendment does not achieve what it sets out to do. The noble Lord put a series of questions to me about the current position and about what will be the position. He asked whether medical facilities would be provided by the Home Office for those with poor mental health. He then asked about the Control Order Review Group, and about whether something would follow it. He could not quite bring himself to work out the acronym, but no doubt something can be put in place that will have a similar role. I am sure that my noble friend asked those questions in a rhetorical manner and that he knows the answer certainly to the first two questions. Such things will be provided by the Home Office: CORG exists; and we will certainly consider something suitable to replace it in due course.
Although I cannot accept my noble friend’s amendments, I say that the Bill, together with the relevant control order case law and the duty of the Secretary of State to act within convention rights, already ensures that the Secretary of State will give the appropriate consideration to the impact of the measures on the individual and on their family, including the impact on their mental health, both before imposing a TPIM notice and during the year or however long it remains in force. With that, I hope that my noble friend will withdraw her amendment.
Terrorism Prevention and Investigation Measures Bill
Lord Carlile of Berriew Excerpts(13 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Carlile of Berriew
In answering the question asked by the noble and learned Lord, Lord Lloyd, perhaps my noble friend would be mindful of the power in the United States to impose executive witness detention, never mind executive suspect detention. He might also be mindful of the arbitrary powers used in a number of other countries, for example, Pakistan and Sri Lanka, to detain people without any proper legal process and of the power, for example, in France, to charge people with association de malfaiteurs, something we are probably all doing in this House this afternoon, and then hold them in custody for months and months, quietly releasing them without charge.
Lord Howard of Lympne
I hope that my noble friend in that intervention has not exhausted the number of examples of that kind that I am sure he is able to give to illuminate the House. The truth is, I suspect, that if one conducted an extensive examination of the way in which other countries have faced up to this dilemma, one would find that the measures contained in the Bill are less draconian than those that exist virtually anywhere else in the world.
As I said, I believe that the Government have struck the right balance, with one not insignificant exception. When I gave evidence to the Public Bill Committee, I said that in my personal view the Bill would be better if it contained the relocation provisions, and I do not resile from that view. I believe that the relocation provisions would make it easier for the Security Service to carry out its responsibilities and would enhance the protection of the public. On that single point, I agree with the noble Lord, Lord Hunt, but for the rest of it, I believe that the Government have struck the right balance and that the Bill should be supported.
Lord Macdonald of River Glaven
If my noble friend does not mind my saying so, I am not sure that the example that he posits is one that I recollect from my period as DPP. Let us imagine the situation that would exist here: presumably the police or the Security Service would have in their possession something like an intercept that could not be used—for example, a suspect having a conversation with another individual about a plan to place a bomb on the Tube. With respect, that is not the end of an investigation; it is the beginning of one. The investigation that then takes place is into that individual, into the plan as described in the phone call, into the individual he has spoken to and into the associates of all.
The noble Lord will know from his time as Home Secretary that the sorts of powers and abilities that the law enforcement authorities in this country have, which we will not go into here, are considerable and significant. I do not recognise a situation in which a law enforcement investigation stops simply because the deeply incriminating material that you have until that time is the only material that you have and you do not anticipate discovering more.
Lord Carlile of Berriew
But my noble friend Lord Howard did not suggest that. Does not my noble friend Lord Macdonald, from his distinguished period of service as Director of Public Prosecutions, not recollect that cases were brought to him in which at that time there was no further prospect of a successful investigation? That is the question that my noble friend Lord Howard is asking. If that is the case, perhaps my noble friend Lord Macdonald would just tell us that the consequence of his view is that, if a TPIM exists after that time, it should cease.
Lord Macdonald of River Glaven
Of course one recognises that if an investigation, using all the powers available to the investigating authorities, has continued for a period of time and turned up nothing, under this scheme the TPIM will come to an end—but TPIMs are intended to be time-limited in any event. Under the terms of the Bill, TPIMs will come to an end after two years, so we are not talking about an open-ended system of restrictions. My point is that a system of restrictions applied to criminal investigations is not only more likely to be constitutional and develop broader public support than the system that is currently proposed, but such a system would have attached to it conditions that actively encourage and assist investigation.
Lord Carlile of Berriew
My Lords, it is always interesting to follow the noble Lord, Lord Desai, in debate. He has not disappointed us; he has used his usual capacity to place a cat among the pigeons.
I should start by declaring an interest. Although I ceased to be the independent reviewer of terrorism legislation in February this year, I still hold two positions relating to security in Northern Ireland.
I, too, welcome my noble friend Lord Henley to his ministerial place. I look forward to working with him on this important Bill and other significant issues. I know that he will agree with everyone who has said that we shall all miss his predecessor, my noble friend Lady Browning. She will be a hard act to follow, and we wish her the fullest of health as soon as possible.
I approach this debate by reiterating the Burkean party conference mantra of the Deputy Prime Minister, Mr Clegg: we should do not what is merely easy; we should do what is right. That mantra has a particular resonance in relation to at least one aspect of this Bill: the question of relocation. I listened with interest to the noble Lord, Lord Reid, who was a distinguished Home Secretary, talking about representations from constituents. I can tell the House that in my nine and a quarter years as independent reviewer, I received but a handful of letters or e-mails from private citizens about control orders. They did not appear to raise particular public interest.
I believe that the Government were absolutely right as a new Government to carry out a review of counterterrorism law, practice and policy. I congratulate them on many of the conclusions reached in the counterterrorism review. The two-year limit on TPIMs is something for which I long argued in relation to control orders. Raising the standard of proof is the right thing to do. Indeed, if we look at all the judgments in the cases, they all reached the highest standard of proof which is now to be included. Giving people who are subject to these orders mobile phones and some form of electronic media is the correct recognition of their rights.
I listened to the comments of the noble Lord, Lord Pannick, and my noble friend Lord Goodhart with enormous respect. I think that my view is with the noble Lord, Lord Hunt: the nature of an order such as this is an executive act and the nature of review or appeal is a judicial act. If I may cite the example of deportation orders, there are at least two people in the House today who have made large numbers of deportation orders as an executive act and they have been robustly reviewed and appealed before the courts. That is a perfectly conventional and correct procedure.
I am a little worried by the fact that my party entered government with an almost visceral opposition to any specialty legislation in connection with terrorism if there was any suspicion of an adjustment of human rights assumptions and norms against the interests of any individuals that might affect their freedom of action. Of course, since entering government, Ministers have seen the evidence, and the result of that evidence is seen to a great extent in the Bill.
Nobody has yet mentioned the context in which this matter is being debated, and I remind the House of the threat level that was changed downwards by the Joint Terrorism Analysis Centre—JTAC, which is an independent body for this purpose—on 11 July this year. The threat level was changed on that day from severe to substantial. What does “substantial” mean? I do not believe this to be in dispute between any parties in this House. The threat level “substantial” means that a terrorist attack remains a strong possibility and may occur without warning. It means what it says. Further, the impending and very welcome Olympic and Paralympic Games mean that the threat level is most unlikely to be reduced until after those great festivals are over.
What does the threat mean to the public whom the Government have a first duty to represent and protect? It means that there is a strong possibility—remember those words—of a single or multiple suicide bombing attack occurring entirely unpredictably, with consequent death and injury on at least the scale of the events in London in July 2005. I remind your Lordships that in the 7/7 attacks, not only were 52 people murdered by terrorists, but more than 770 people were injured, some extremely seriously. Further, it is worrying that violent jihadist terrorism techniques have become more varied since 2005, including the technique—if that be the right word—of massacre by the use of automatic weapons, as in Mumbai on 26 November 2008 and as elsewhere more recently.
I have heard, and I think we have heard in this House, repeated suggestions that control orders breach the Human Rights Act 1998 and the European Convention on Human Rights. I invite the Minister to confirm that that issue has been litigated and that control orders have been held to be compliant with the European Convention on Human Rights. I ask the House to lay to rest what I regard as the canard of non-compliance. What we have in this Bill is close to control orders, with one material element removed: the power to order relocation of the individual in question.
I am a little puzzled by the title of the Bill and the emphasis on investigation. There is an implication that this is something new, and it has been perpetuated by my noble friend Lord Macdonald. It is not. Investigation and prosecution have always been the aim before a control order was issued and as it continued. I have attended on a number of occasions a committee called the control orders review group—CORG—which is a multidisciplinary committee that sits in the Home Office and considers every control order in detail, regularly, person by person, with the police officers and others dealing with that controlee present at the meeting. Investigation is continuous. A control order or a TPIM is a tool to be used when for the time being investigation and prosecution can go no further. I apprehend that my noble friend, during his distinguished period as DPP, will have been consulted about such cases and on that basis. The whole basis was that at that time investigation could not be brought to fruition. Of course, the CORG process means that at a further time it will be considered, and it is. The Crown Prosecution Service’s admirable terrorism group, created by my noble friend to a very high quality, does exactly that.
The noble Lord, Lord Freeman, spoke from his business perspective—I believe that he is, or was, chairman of one of the leading technology companies—about the technology that is now available. Of course we should welcome and use the technology. The Government have a responsibility that they do not always exercise—this applies not to any particular Government—to use the latest technology that will make fewer TPIMs or control orders necessary. However, technology is not necessarily the answer. Greater resources are welcome, but they are not necessarily the answer. We have been told that there will be higher levels of surveillance, but the reality is that you have to have somewhere to carry out surveillance from, and it is not always possible in relation to intelligence counterintuitive controlees.
I agree with the table issued this morning by Liberty confirming the high degree of similarity between control orders and TPIMs, and I welcome the similarities. My noble friend Lord Macdonald mentioned that there have been absconds. There have been, but perhaps he should have mentioned that there has been none in the past five years and that the techniques of securing that there are no absconds have improved dramatically, not least through the use of better technology.
With my experience from the beginning of control orders until early this year, I wonder why we are troubling to replace a functioning system with another that has almost entirely the same arms, body and legs, but I agree with my noble friend Lord Howard that, as I have already intimated, some of the changes are welcome. However, there is one leg missing from the Bill, and for now, in my view, it gives this legislation a distinct limp. It is the continuing power to order relocation, subject, of course, to the usual court procedures. On the evidence available, I am persuaded firmly—I choose my words carefully—to the view that it would be negligent to remove relocation from the main provisions. The noble Lord, Lord Harris of Haringey, and other noble Lords, have already referred to the open judgment given by Mr Justice Simon on 20 May 2011 in the case of CD and in other cases. In the CD case, a very detailed and succinct factual judgment was given by the learned judge. We have already been reminded that he said that the relocation obligation is a necessary and proportionate measure to protect the public from the real and immediate risk of a terrorist attack. I echo the words of the noble Lord, Lord Harris: who asked for that relocation provision? It was this Home Secretary. Why did she ask for it? Because she rightly judged it to be necessary. In what context did she ask for it? It was after the counterterrorism review, after my noble friend's independent scrutiny report and, presumably, after she had very carefully considered, on the advice of her extremely able officials, whether it was necessary and proportionate to do so. Why did she not say, “We’re not going to ask for relocation because we believe it is not necessary any more”? The answer is that she believed that it was necessary in that case, which is but one example of several cases where the conclusion was reached that relocation was not merely proportionate but necessary in accordance with the evidence given by Deputy Assistant Commissioner Osborne.
My conclusion from those cases is that the protection of the public will be diminished, I am afraid deliberately, by the removal of relocation from the main legislation. The current alternative proposed by the Government would allow relocation to be ordered in exceptional circumstances, subject to the enactment of a draft Bill. Generally, Parliament would be required to debate and vote on such measures before they came into force. It would therefore be required to determine whether the circumstances at the time merited such enhanced provisions. That is a clumsy proposal: it is the worst form of legislative disorder. It completely ignores the realities of operational activity against terrorism. The notion of meaningful parliamentary debate in such circumstances beggars belief and invites legal challenge. The Mad Hatter would await his invitation to any such debate with confidence that he would receive it.
I hope that relocation will not be needed at all in due course. I favour a sunset clause in the Bill that would include relocation. Relocation should continue as an element of TPIMs until the end of 2012, after the Olympic Games, and should then be repealed, subject only to affirmative resolutions of each House of Parliament. This would mean that there would be further consideration by Parliament in less than 15 months from now, following proper protection of the public in the intervening period. I hope that the Government will accept that that is a sensible course and will table amendments to that effect. If not, I am prepared to do so myself, because this is a very important lacuna in the provision.
Lord Lloyd of Berwick
My Lords, some noble Lords will remember, as I certainly do, when control orders were first introduced as an emergency measure in March 2005 after an all-night sitting. It was an emergency measure because the suspects then being detained in Belmarsh prison were due to be released within a few days as a result of a decision of the House of Lords in December 2004. The powers granted to the Home Secretary in 2005 were considered to be so extraordinary at the time that the Conservative opposition and the Liberal Democrats insisted on a sunset clause, and they carried the day in that respect. Six years later, those powers are to become in effect a permanent part of our constitution.
I had hoped that when the coalition Government took over, there would be an end to control orders. The coalition agreement promised to reverse the substantial erosion of civil liberties that had taken place under the previous Government and there was to be an extensive review of anti-terrorism measures. These were all good signs. I have not seen the evidence submitted to the review by the security services or the police, but I have seen the rest of the evidence, and I can say that with one exception, all the evidence in relation to control orders was in favour of abolition. Yet, once again, the Government have drawn back.
We are getting rid of relocation, and I am glad of that. Perhaps I may say to the noble Lord, Lord Hunt, that of course relocation is the most effective measure available, but in my view it is also the most inhumane. So there are improvements in the Bill which I welcome. But the fundamental objection is the same as it has always been: British subjects have been placed under severe restrictions so well described by the noble Baroness, Lady Stern, for lengthy periods by order of the Home Secretary, who is a member of the Executive, without ever having been convicted of an offence or, until recently, even being told what they were supposed to have done. Such powers are common enough in police states and, as the noble Lord, Lord Carlile, explained, they may be acceptable in Pakistan and India, but I never expected to see those powers exercised in England, save in time of war when the life of the nation is at stake.
Lord Carlile of Berriew
My Lords, with great respect to the noble and learned Lord, I really do not think he should be allowed to get away with that. The implication of what he has just said in what I take to be a rhetorical flourish is that what happens in Pakistan, for example, or what has happened in Sri Lanka, is to be equated with what has happened here. Does he not think that our judges, of whom he was one of the most distinguished in this country, have played an extremely sound and controlling role over the exercise of this jurisdiction and have ensured that in fact and in law, it was ECHR compatible?
Lord Lloyd of Berwick
I am very glad to hear what the noble Lord has said and I am happy to withdraw any implication that I may have made against what is done in Pakistan and India. However, I never expected to see these powers exercised here. The Secretary of State defends them on the ground that there is no alternative, but there is an alternative. There is another solution and the problem is not almost insoluble, as the right reverend Prelate suggested. The solution lies in covert surveillance. To my knowledge, it is the solution that has been adopted in Germany, for example, and has not been found wanting. Indeed, I believe it to have been adopted in every other western country and it has proved to be successful; control orders have not been relied on. Why should covert surveillance not prove equally successful here?
It may be said that surveillance is more expensive than control orders, and I expect that that is the case. But at least we would have saved the £10 million the Government have spent so far on defending control orders in the courts. In any event, cost should surely not be a consideration when it is the freedom of British subjects which is in issue. It is not as though very large numbers are involved. So far as I know, there have not been more than 12 in any year, as few as eight recently, and not more than 48 in all. Surely we could have found the money, and could still find the money if further resources are going to be made available, to solve this undoubted problem in the way that other countries have solved it; namely, through covert surveillance.
Terrorism Act 2000 (Remedial) Order 2011
Lord Carlile of Berriew Excerpts(13 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hamwee
My Lords, it has taken a little time for this order to reach us—although it is within the 120 days—and I wonder why that is so. It would have been good to have considered it rather earlier after the order came into effect. However, it means that we have had two helpful reports from the Joint Committee on Human Rights and I have also found helpful briefing that we received within the past two or three days from the Equality and Human Rights Commission.
As the Minister said, this is a curtain-raiser for the Protection of Freedoms Bill. I declare an interest which, when I mentioned it on a previous occasion, I discovered I shared with a surprisingly large number of Members of this House—I was stopped and searched under Section 44 by, in fact, the MoD rather than the Metropolitan Police. I was driving past the Ministry of Defence at the time. That was a random stop and search, although I have to say that I thought, and still think, it is very likely that they needed a middle-aged white woman to tick that box. Actually, they bagged two Peers because I was giving a lift to another, and they found a report from the Committee on Standards in Public Life in my boot—so there was nothing much to trouble them in all this. I was more interested than offended.
I support the order but share some of the concerns expressed by the JCHR. It used the term “unease”—I thought that that was a good one—about the Government’s assertion of necessity without being prepared to provide concrete evidence in support of alleged need. I am using shorthand, but the numbers in the House have reduced and those who are here will know what I am talking about. I am also concerned about what seems to be some confusion between “reasonable suspicion” and “reasonable belief”. The JCHR could not have known that we would debate this matter on the same day as TPIMs, but it made that connection. The JCHR made the point that “reasonable” does not appear regarding the authorising officer’s consideration of necessity for and proportionality of authorisation. When we come to the Bill, which will be amendable, perhaps we can look at the precise terms of the new Section 47.
I take the point that has also been made that placing elements of the code of practice into the legislation—the elements that restrict the use of the powers—would be desirable. It would mean greater clarity, enable breaches to be challenged and make checks on the use of the powers legally binding. There is also the point that we may need to consider further the relationship between these powers and the right to peaceful protest.
Of course I welcome the code and I note—particularly given my personal history—that the selection of individuals and vehicles at random must be within the parameters set out within the authorisation. Can the Minister give a reaction on behalf of the Government to the recommendation made by the independent reviewer of terrorism in his report of last July, at paragraph 8.39, on the revision of the code of practice to introduce full and proper guidance on the exercise of the officer’s discretion to stop and search? It is a longer paragraph than that but I am sure that the Minister will be familiar with it. The JCHR recommended prior judicial authorisation of the power to stop and search without reasonable suspicion. The Minister will not be surprised, as I said in the previous debate, that I am with the committee on that. However, I support the order.
Lord Carlile of Berriew
My Lords, on this occasion I feel able to support the Government’s proposals unequivocally and without demur. During my time as independent reviewer of terrorism legislation I saw—and I mean saw with my own eyes—Section 44 being overused, misused and occasionally abused. It produced very few, if any, results in terms of counterterrorism intelligence or information, and its passing is not mourned.
The problem was that there was no requirement for reasonable suspicion and it was treated as a random power to stop and search. I had not heard before this evening that my noble friend Lady Hamwee had been stopped and searched. I recall the noble Lord, Lord West, revealing that he had been stopped and searched, and he told me colourfully of the incident.
The passing of Section 44, and the Government’s speedy action in preventing its use, has been welcome, but there was always a gap to be filled as a result. There are going to be events—the Olympic Games are an obvious example but there may be many others—in which there will be reasonably robust intelligence that gives rise to a reasonable suspicion that a terrorism act will take place. It is important to allow the police to protect the public at such events by giving them a power to stop and search. It is not a random power and it is not expressed in this order as a random power. I agree with my noble friend that it is desirable that police officers who find this kind of power quite difficult to exercise, particularly if they have come from a different part of the country to carry out crowd control duty, should have as much guidance and as good briefings as possible before they are placed on duty with this power in their hands.
I have some experience of the reviewing of the authorisations which, as the Minister reminded us, used to be for 28 days under Section 44 in geographical areas. During my time as independent reviewer a new look was taken at these authorisations, and greater demands were rightly placed on chief officers to ensure that the authorisations were not simply pro formas but that reasons were given. I hope that the same sort of discipline will apply to authorisations following approval of this order.
I know that the civil servants in the Office for Security and Counter-Terrorism who scrutinise the applications now have a great deal of experience, which they apply very well in that scrutiny. I therefore believe that as a result of this order we have replaced Section 44 with something that is better, necessary and properly limited in scope.
Lord Dubs
My Lords, we all know about the sensitivity of stop and search, and any improvement in the way that it is carried out—as is represented by this remedial order—is all to the good. However, I have one or two questions based upon my membership of the Joint Committee on Human Rights. The noble Lord, Lord Carlile, said that the searches would not be random. Am I right in thinking that in the code of practice there are references to random searches? The JCHR was anxious that those references be removed and that the code of practice be devised so that the stop could be,
“justified by the precise nature of the intelligence about the threat”.
Rather than the searches being random there would have to be some intelligence because the order would clearly not be applied unless there was some background knowledge of this sort. It would be desirable to remove the word “random” from the code of practice.
In another report of the JCHR, we suggested that the code of practice be modified to:
“Require the authorising officer to have a reasonable basis for his belief as to the necessity of the authorisation and to provide an explanation of those reasons”.
These would not be large changes, but I wonder whether we might urge that the code of practice be looked at again. Police officers need all the guidance that they possibly can have in dealing with very sensitive situations. We all know that certain communities will feel that they are more targeted than others—notwithstanding the experience of the noble Baroness—and I should have thought that we ought to look again at the code of practice to make sure that it reflects exactly what we want it to reflect and gives our police officers on the street the maximum support for the way they behave.
Police Reform and Social Responsibility Bill
Lord Carlile of Berriew Excerpts(13 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Thomas of Gresford
My Lords, I beg leave to move this amendment standing in my name and that of my noble friend Lord Macdonald, who like so many of us was here until late last night but is unavoidably abroad today.
Clause 155 is of importance as it ousts a long-held and apparently unfettered right of the private citizen to seek an arrest warrant, particularly in relation to offences of universal jurisdiction. For our part, we agree with the thrust of the change that has been made. As the prosecution of offences of universal jurisdiction—for example, war crimes—has always required law officer consent before a plea is entered in the court, why not require the Director of Public Prosecutions to consent on the same test before the process may be commenced at all? The alternative is the possibility that a case may proceed in the absence of any likelihood of law officer consent being forthcoming. It is a hopeless case. In that case, the prosecution will inevitably and quickly collapse when the consent of the law officers is withheld. It will have been nonsense from the start. That is most undesirable in such cases, which may have sensitive international connotations.
It seems to me that to require the prior consent of the Director of Public Prosecutions, as the clause does, merely creates an additional safeguard at no markedly adverse cost to justice. It has to be recognised that the proposal represents an inroad into the right of the citizen, unrestricted and unfettered, to seek arrest warrants, so it is particularly important, if this is an inroad, that the tests that the Director of Public Prosecutions will apply in considering the grant or the withholding of consent are crystal clear to the public, who to an extent are losing a right of unfettered access to the court. The purpose of the amendment is to achieve that clarity by putting those tests into the Bill.
What are the tests set out in the amendment? They are the tests that are used by Crown prosecutors in considering whether to charge individuals with criminal offences. This is appropriate because in a private prosecution the issuing of a warrant is analogous to the charging process in a conventional state prosecution. It is the actual issuing of the warrant that sets the ball rolling and puts the defendant under the jurisdiction of the court.
The full code test requires the prosecutor to consider whether the evidence before him raises a realistic prospect of conviction—in other words, that a reasonable tribunal would be more likely than not to convict upon that evidence. If the answer to that question is yes, there is a reasonable prospect of conviction and the prosecution would be in the public interest, a charge must follow.
The second test that is set out in the amendment is known as the threshold test. That is to be used in circumstances in which a prosecutor has enough material to suspect an individual of an offence and a real expectation that material satisfying the full code test will become available within a reasonable period. Noble Lords who were in Committee will recall that the former Attorney-General, the noble and learned Lord, Lord Goldsmith, suggested that the public interest test should come in at that stage. In fact, that is not the case in ordinary prosecutions in this country.
The Director of Public Prosecutions, Mr Keir Starmer, has said in evidence to the Public Bill Committee that he believes these tests, which are normally used in this country for granting consent to the issue of a warrant where universal jurisdiction offences are alleged, to be the appropriate tests. There was some issue in Committee about what he had actually said on this topic in the evidence that he gave to the Public Bill Committee. I quote a paragraph from that evidence:
“Quite rightly, a number of groups and individuals have said to us, ‘We may have practically everything. We just need to change the nature of the evidence and it won’t take long. You surely wouldn’t refuse us consent on that basis?’ So we have an exception that allows us to apply the threshold test—is there enough for reasonable suspicion and do we anticipate that, within a reasonable period, the evidential gap, as it were, could be plugged? There would then be sufficient evidence for a realistic prospect of conviction. That prompts the question, what is a reasonable period? It seems to us that it is probably best measured in the period between the application for arrest and the likely time that the Attorney-General will consider consent, because that is the existing window. That is the only period that can sensibly be used for that purpose”.—[Official Report, Commons, Police Reform and Social Responsibility Bill Committee, 20/1/11; col. 125.]
In Committee, my noble friend Lord Carlile of Berriew asked whether my noble friend Lord Macdonald had consulted Mr Starmer before he put down this amendment. The answer is yes, he had. Since the proceedings in Committee, my noble friend Lord Macdonald has spoken further to Mr Starmer about the matter and has received an indication from the Director of Public Prosecutions that he may convey to the House that the position he expressed in his evidence remains his position. Those are the tests, as set out in the amendment, that he would apply in considering consent to any application for a warrant in a case of universal jurisdiction.
Lord Carlile of Berriew
Will my noble friend be kind enough to confirm that the Director of Public Prosecutions has not indicated his assent to this amendment?
Lord Thomas of Gresford
If my learned noble friend will control himself for a moment, I shall come to that question in due course. Mr Starmer has indicated that he would wish to apply a public interest filter to both the tests that are set out in the amendment. Unlike an ordinary prosecution, Mr Starmer would wish to consider the public interest question on the threshold test as well as the full code test. His view is, of course, accepted.
Lord Carlile of Berriew
I am sorry but that is not good enough. Will my noble friend now answer my question? He has left hanging in the air the possibility that the Director of Public Prosecutions has indicated his agreement to this amendment. Is that true or untrue? I believe that it is untrue. The implication should not be left hanging in the air. Perhaps my noble friend will bear in mind that I am exercising more self-control than his last few sentences possibly justify.
Lord Thomas of Gresford
I must admit, my noble friend has always been known for his self-control. We have known each other for 30 or 40 years. The simple answer to his question is that, as I explained a moment ago, the Director of Public Prosecutions wishes to include in the guidance that he proposes to give the public interest test, at the first part, in considering the threshold test. He has said that binding guidance to that effect—
Baroness Tonge
I apologise to the House, and I agree with the noble and learned Baroness. In fact, I did not make an assertion; I said that there were incidents in the past where, allegedly, that had occurred.
When we look at this issue, we begin to think—certainly, the people who lobby me in great numbers think—that the real reason for the change in the law was the incident relating to Tzipi Livni. The Foreign Secretary, for whom I have high regard, argued that in the case of Tzipi Livni, the law had been abused when an arrest warrant was issued against her. He stated that:
“She is an Israeli politician of great importance, and a strong advocate of the peace process”.—[Official Report, Commons, 24/3/11; col. 1130.]
That may be, but he did not criticise the evidence against her contained in the arrest warrant which had been obtained by a private citizen.
Lord Carlile of Berriew
I am grateful to my noble friend for allowing me to interrupt, and I am extremely surprised that we have not heard my noble friend on the Front Bench intervening in the way in which he intervened on my noble friend Lord Palmer of Childs Hill a few minutes ago. What my noble friend is saying is out of order, inappropriate and not related to the amendment. She is having a rant at Mrs Livni.
Lord Wallace of Saltaire
I was considering rising on precisely that point. This is Report, and we are intended to stick very closely to the amendment. This speech is ranging very widely, much more widely than is normal on Report.
Baroness Tonge
I am not going to give way again. I must finish. We must contrast this action with what has happened in the past couple of weeks where Raed Salah, a Palestinian—
Lord Carlile of Berriew
My Lords, I have only a few words to add. I am sorry that my noble friend Lady Tonge has chosen to disobey the normal rules of the House and has stormed out in a way which is not appropriate to noble Lords and noble Baronesses in this House. It is something that I, as a member of her party, feel very strongly about, and I hope that none of my noble friends would normally behave in that way. It is quite shocking.
I would say, and I was about to say in her presence, that she has completely misunderstood the role of the Attorney-General and the Director of Public Prosecutions. I was involved in some negotiations during the previous Government as a person who was keen to extend the cover of the universal jurisdiction. It was made clear to me as part of the package—there were other Members of your Lordships' House of all and no parties involved—that an absolute requirement to make acceptable the broadening of the universal jurisdiction was a provision of this kind.
The basic reason is that we have only one standard of prosecution in this country. It is a good standard, it is set out in the current version of the Code for Crown Prosecutors, and it is completely politically independent. There was a discussion as to whether the provision in Clause 155 should be applied to the Attorney-General—the noble and learned Baroness at the time—or the Director of Public Prosecutions. It was decided, precisely to emphasise the principle of political independence, that the Director of Public Prosecutions should be the person named.
Having said that, I absolutely agree with every word the noble and learned Baroness has said about the role of the Attorney-General. Indeed, I was fortunate enough to receive an e-mail that winged its way from sunnier climes, where the noble and learned Lord, Lord Goldsmith, is busily engaged in unavoidable other activities. I was very flattered to receive the e-mail. In it he said that he supports this clause and is opposed to the amendment, as he said with great eloquence in Committee.
Lord Carlile of Berriew
No, I am not going to give way because I think we have spent—all right, I will give way to the noble Lord because I like him.
Lord Campbell-Savours
I tried to take a very neutral position when I originally moved my amendment. However, it should be made absolutely clear whether the Attorney-General could ever be influenced by a political position taken by a Government in any decision that he or she might take, in any circumstances.
Lord Carlile of Berriew
The noble Lord knows how much I admire him, so if I say that is a really silly question I do so in a spirit of generosity. The answer is that we in this Parliament—and the noble Lord has been in this Parliament a lot longer than I have—have to make certain assumptions. Those assumptions include what the noble and learned Baroness, Lady Scotland, the former Attorney-General, said to the House a few moments ago. The sanction for people—and Governments —who behave in that way is that they will lose the confidence of Parliament. The question that the noble Lord puts is so hypothetical as to be absurd, in my experience and, I believe, in his political life too.
I do not want to delay the House too long. All I really wanted to say about the amendment is that in Committee the noble Lord, Lord Pannick, achieved a superb deconstruction of the amendment, and he has done it again today. I do not really want to add anything to what he said, together with the support that he received from the noble and learned Baroness, and indeed the very cogent summary that we received from a non-lawyer, my noble friend Lord Palmer of Childs Hill—thank God we have non-lawyers who are prepared to speak in these debates. I close by simply saying that this clause from the coalition Government, which I and my noble friends usually support, has been introduced in a continuous thread from what was agreed by the previous Government. It brings a single high standard of prosecution to this country and one that can be changed, as it has been in new versions of the Code for Crown Prosecutors test.
Police Reform and Social Responsibility Bill
Lord Carlile of Berriew Excerpts(14 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Tonge
My Lords, I, too, add my protest to what is going on here this evening. We have just spent several hours on what many people in this House considered to be a completely useless and totally unnecessary Bill. We are now faced with a Bill in which, from my point of view, the most important issue that we are yet to discuss—universal jurisdiction—is right at the end. That will probably come at something like 2 am or 3 am. That is an insult to all the people who have died by the actions of international war criminals and I am absolutely furious that the House has organised the business in this way.
Lord Carlile of Berriew
Well, my Lords, I am certainly not furious and I always listen to my noble friend the Minister with great care but I say to her that there must be a preparedness on the Government's part to stop at a reasonable hour. This House has a justified reputation for considering legislation with great care and revising it on the basis of knowledge and a solid evidence base. I fear that once we pass a very late hour today, that power of this House will be lost.
Baroness Anelay of St Johns
My Lords, it may be helpful if I remind the House that we are moving into Report and that nothing may be resolved at this moment. The noble Lord, Lord Hunt of Kings Heath, pointed out that the Opposition have always said that they would complete Report today. That is part of a firm agreement. It was also for the convenience of the Opposition Front Bench that the exchange on Lords consideration of amendments on the EU Bill was moved to today.
Lord Harris of Haringey
The Government are trying to square the circle of putting a very high priority on national security—the national security strategy, the creation of the National Security Council—and their policies on police and crime commissioners. Clearly, the potential danger with police and crime commissioners elected with a local mandate to articulate the concerns of local people is that some national priorities will not be given the same priority at local level. Now, I am sure that no sensible police and crime commissioner would say, “I am not interested in anything being done on counterterrorism”, just as no sensible police and crime commissioner would say that they did not want to see anything done on serious crime. However, when there are 41 directly elected individuals, some of whom will fight very fiercely contested local elections, or be facing fiercely contested re-election, the question of whether the same priority is given to national security matters as is given to other matters becomes a real issue.
Because of our particularly slow progress as a House on other matters before we arrived at the Bill tonight—we are making rapid progress compared to the progress earlier—I had the opportunity of listening to a presentation downstairs from Professor Dave Sloggett, a nationally known expert on counterterrorism issues. In a rather chilling 15-minute tour d’horizon, he simply spelt out the sorts of threats that we face, which are contained in the CONTEST strategy, and the context in which that is taking place at the moment. Yes, Osama bin Laden has been killed, but that does not mean that al-Qaeda goes away. We are actually seeing a fragmentation and each of the different affiliates going their own way, each presenting slightly different threats.
We have Gaddafi in Libya, who has made an explicit threat of suicide bombers in European cities; and there is the changing situation in Northern Ireland, where we have just seen two nights of sustained rioting and serious disorder. Again, the fact that that has not impinged significantly on the rest of the country makes it all the more likely that there will be an aspiration for it do so. We have the challenges of the Olympics. In moving her amendment, my noble friend Lady Henig referred to issues around cybercrime, and it is interesting that the CONTEST strategy for the first time refers to the cyberterrorist threat. These are issues in which local police forces have got to play their part; they have got to raise their game. They are not necessarily issues which will immediately emerge as the priority for the elected police and crime commissioner in every part of the country, yet every part of the country is potentially affected.
Let us consider the way in which Roshonara Choudhry self-radicalised herself, dropped out of her university course and, having listened to speeches and read material on the internet, decided that an appropriate thing for her to do to take forward the cause would be to assassinate a British Member of Parliament. She then researched Members of Parliament on TheyWorkForYou.com and purchased two kitchen knives. Fortunately for Stephen Timms, a Member of Parliament in the other place, she decided on the day that it was easier to conceal in her clothing the shorter of the knives. That is an example of the kind of threat we face.
Not so long ago an individual in the south-west of the country seriously injured himself in an attempt to blow up a restaurant in which families with young children were having meals. Again, he was an individual who, as far as we know, was not significantly connected to any of the networks.
It will be the responsibility of local policing, local special branches and local intelligence to pick up on these issues. If you get to a stage where this is seen as not the responsibility of a local police force, your ability to combat these threats will be severely weakened. That is why the strategic policing requirement is so important.
It is also important in the context of serious and organised crime because we all know that if you do not maintain consistent and strong pressure on the issues around serious and organised crime, gradually the quality of community life in all kinds of areas will begin to deteriorate—and yet this will not be an immediate priority for many police and crime commissioners.
The Government have, properly, written into the Bill a strategic policing requirement. However, they have not specified how it will be enforced and how they will make sure that it is met in every force area. My noble friend Lady Henig has tabled an amendment which would require Her Majesty’s Inspectorate to produce a report on an annual basis and lay it before Parliament to assess how the strategic policing requirement is working. My amendment has a different focus; it seeks to consider what happens in each individual force area. It does not specify that the report should be laid before Parliament because sometimes the content of that report in relation to the strength, willingness and effectiveness of local forces in combating terrorism and serious and organised crime would best not be publicly shared.
I know that the Home Office does not want to be top-down on all kinds of issues, but on these issues it needs to be top-down, which is why it has postulated a strategic policing requirement. This will give the Home Secretary a snapshot for each police force area and a national overview, if you take the position that has been put forward by my noble friend Lady Henig, of what is going on and where there may be weaknesses. Whether that will result in a formal intervention by the Home Secretary or a less formal intervention with the chief officer of police and the elected politician who leads those areas applying pressure, I do not think really matters. What is important is that the Home Secretary has that information and has it as a tool. Further, it is important that the locally elected individual—the police and crime commissioner or the MOPC in London—is aware of where they stand in terms of meeting the strategic policing requirement. They may well have a rose-tinted view of what the level of problem is or what needs to be done. This gives them that information and the opportunity to decide. I find it extraordinary that there is nothing in this Bill about monitoring how the strategic policing requirement is to be met, how it is to be achieved and what is to be done about it.
These amendments are put forward in a genuine attempt not just to assist the Government to achieve their objectives, which as you know are constantly at the forefront of our thoughts on this side of the House, but because it is critically and crucially important for the national security of this country and indeed for our ability to deal with serious and organised crime.
Lord Carlile of Berriew
My Lords, I hope I will be forgiven for making a short intervention in support of the amendment of the noble Baroness, Lady Henig, and indeed in support of the amendment of the noble Lord, Lord Harris of Haringey, as to its principle. This Bill is to a great extent about the accountability of the police. The whole purpose of the Government’s policy, which I applaud, is to make the police more accountable to the public. The noble Baroness, Lady Henig, is attempting to do precisely that—to give visible evidence of that accountability to enable the public to judge from a document how accountable the police are in terms of the strategic policing requirement.
The noble Baroness referred to the work of the independent reviewer of terrorism legislation, which I used to be. The independent reviewer is required to produce at least two reports every year which enable Members of both Houses, who use the reports extensively, and others to judge the performance of the authorities in relation to counterterrorism law. We have an independent reviewer of the relatively new Northern Ireland provisions for what is now public order law in Northern Ireland. This role has been carried out since it was introduced by Mr Robert Whalley. He has been very successful in ensuring that those important parts of the law he reviews in Northern Ireland, which can prove, as we have seen in the past couple of days, very controversial in the context of everyday life, are accounted for in the legislative assembly of Northern Ireland and in this Parliament.
Following the legislation in relation to the UN money-laundering provisions for named terrorist suspects, we introduced recently an independent review which is going to be carried out, as I understand it, by David Anderson QC, who succeeded me as independent reviewer of terrorism legislation. There again, we will have a report which will deal with issues relating to a part of the strategic policing requirement. Those who carry out such roles from time to time have been asked ad hoc to carry out reports which call to account those who have been involved in aspects of counterterrorism and related policing.
Her Majesty’s Inspectorate of Constabulary has a distinguished and respected record of impartiality. It has been able to secure changes in policing practice around the country by the kindly method of report, constructive criticism and engaging, sometimes, the support of those in both Houses of Parliament. It seems to me that there is nothing to be lost and potentially much to be gained from the transparency of a report by Her Majesty’s Inspectorate of Constabulary, particularly given the importance of the strategic policing requirement, which has been amply described during this short debate, particularly by the noble Lord, Lord Harris.
I take issue with the noble Lord on only one detail. He suggested that it might be difficult to write a report that would be published that engaged with matters of national security that are best left unsaid. I can tell the noble Lord that there are ways of doing this; it can be done. With the co-operation, which is always available, of the security services in particular, there are ways of writing reports that do not damage national security but deal fully with all the principles that need to be discussed.
I therefore believe that this is a constructive proposal and I hope to hear that the Minister will also allow this matter further consideration with a view to something being brought forward at Third Reading.
Police Reform and Social Responsibility Bill
Lord Carlile of Berriew Excerpts(14 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“( ) Each police area shall have a directly elected police authority.
( ) Each police authority shall number not less than seven and not more than 11 members.
( ) The number of members of each police authority shall be set by order made by statutory instrument following consultation by the Secretary of State with the authority, each local authority part of which is included in the police area, and the chief constable for the time being; and such consultation shall be completed at least three months prior to the first election of such an authority, and by the beginning of the fourth year following each subsequent election.
( ) Police authorities will be elected in accordance with section 51 of this Act.
( ) The police and crime commissioner will be the person elected by its members to chair the police authority for the time being.”
Lord Carlile of Berriew
My Lords, I, too, am grateful to the Minister for the announcement that she has just made. The revelation that Members of your Lordships’ House will be able to stand for election as police commissioners is no doubt fully in the spirit of the previous business before the House, which I noticed was the Wreck Removal Convention Bill.
In moving this amendment, I say to the House, and particularly to my noble friend, that I applaud the Government for insisting on a democratic principle behind accountability for policing. I absolutely believe that it is right that there should be police and crime commissioners; and I absolutely believe that it is right that police and crime commissioners should be elected. However, I think that we can do better than the recipe given in the Bill by the Government: we could have better election, better leadership and better accountability. Therefore, in that spirit, I raise the possibility of considering elected police authorities. I would have moved this amendment on the first day in Committee, but events meant that I was not able to, so I do not feel that I have to apologise for doing so now.
Over the past 15 years or so, barristers who have appeared in cases with me as my juniors will know that I am a strong supporter of the great Surrey philosopher, William of Occam, who lived in the 13th and early 14th centuries. He is, of course, most famous for his Occam’s razor, a famous slogan which is often expressed as,
“Do not multiply entities beyond necessity”,
or as one American presidential candidate put it, “Keep it simple, stupid”. No one wants needlessly bloated legislation or a needlessly boated set of organisations. The real question is which entities are needed and which are not. Occam’s razor never allows us to deny the existence of putative entities; it is often good to have a discussion of a wider range of possibilities in order to resolve that simplicity will work. Occam’s razor teaches us that it is best to refrain from creating complex entities, unless there are compelling reasons for doing so and, if simple entities will do the job, then they should exist. As William of Occam said—if I can be allowed one quotation from his extremely distinguished and interesting oeuvre:
“For nothing ought to be posited without a reason given, unless it is self-evident (literally, known through itself) or known by experience or proved by the authority of Sacred Scripture”.
I see a right reverend Prelate on the Bishops’ Bench and I am sure that he will confirm, if asked, that there is no authority in Sacred Scripture for police and crime commissioners. So here we are looking at the dictates of reason, practicality, accountability and good results.
I think it is understood that some police authorities have done very well and some less well. Some have been faced with extreme difficulties and, in my professional life, I have advised two or three in that situation. Those who listened to the advice resolved their problems rather quickly and easily; those who did not were less good at doing so, but that is the way of the world in the lawyer’s life. There are plenty of examples of others who have not had to take complicated and expensive—well, moderately expensive—legal advice who have done their job very well.
However, the fact that they are not directly elected would lead many members of police authorities, and especially their clerks, their chief executives, who have been a very distinguished group of people, to recognise that they lack one essential quality. The essential quality they lack is not competence, experience or knowledge of the law or of the facts that they have to face. Nor do they lack considerable experience of having to co-operate with chief officers of police. Looking around the House at what I will call the usual suspects who, of course, are not obliged to say anything unless they wish to do so, I say with some diffidence that sometimes the relationship between police authorities and their chief officers has been so outstanding that it has been recognisable in the improved policing of the area. Occasionally, excusing all those at whom I am looking now, it has been rather less successful and has led to what one might politely call dynamic tension between the two. I have to say that in most instances when that has happened, it has been the chief officer of police who has gone before the chairman of the police authority. One might find some evidence there for the success of police authorities.
The present proposals in the Bill for directly elected individual police and crime commissioners create an obvious danger. It would be invidious to cite individual examples; I think sufficient is done by referring to the general point, but there is a real risk of irremovable individual hegemony in which an elected police and crime commissioner finds him or herself at odds with the strong minded male or female chief officer of police for the police area in question. I see that as a recipe for really difficult relationships between the police and those who are in some away accountable for them. My belief is that if we were to have directly elected police authorities, a true illustration of democracy, those problems would be avoided. The suggestion I have put forward in my amendment is that the whole police authority, which is not very large, should be directly elected by the public. This is one of those elections in which I believe the public would take a lively interest. If a group of people—for example, a political party—perfectly legitimately put forward a slate for election to the police authority, the public would know who was likely to lead that group were it to form a majority on the police authority.
In any event, it is likely that there would not be one-party rule on a police authority. Whether there was or was not, the person who became the chair of the police authority would become the police and crime commissioner. He or she would have been directly elected by the public, and would be removable if he or she lost the support of the police authority. Change would be straightforward and, I would submit to your Lordships, it would assist the smooth running of the police service itself in the police area and the accountable governance thereof. I also believe that the election of police authorities would be simpler than what is proposed, would not involve the hybrid organisations that are suggested to lie under the police and crime commissioner and would give a form of accountability recognisable to the public.
Baroness Browning
My Lords, I am grateful to all noble Lords who contributed to this debate. I am particularly grateful to my noble friend Lord Carlile of Berriew, in his second attempt to provide for stronger democratic accountability within all police authorities. His amendments would provide for a police authority based on the current model to be directly elected by the public. Once elected to the authority, its members would be required to elect a chair from among themselves. I am grateful that my noble friend continues to advocate the need for stronger democracy and accountability to be inserted into the current governance regime within England and Wales. I also know that he speaks with significant authority; as we heard, he has advised both police authorities and chief constables.
I have reflected on his remarks in Committee and compared them with the Government’s proposal that the public should be represented by a single directly elected individual. Both models would provide for an election involving the public, unlike the current police commission model put forward in Clause 2 of the revised Bill before us today. The Government and my noble friend are united in our desire to empower the public and to provide for strong accountability for each force area chief constable, with constructive and challenging oversight of the police force.
While the Government's model would provide for a single directly elected PCC who would be a strong voice for the concerns of the communities that they and their local police force serve, my noble friend's model would insert an intermediate stage—namely the election of the police authority—which I would argue distances the public from the ultimate decision-maker.
Crucially for the public and the Government, the PCC must be able to turn the concerns of the general public into action by working constructively with their chief constable to ensure that the police service adapts, responds and deals effectively with the unique challenges that face each police force daily. That process would only be obstructed by the cumbersome decision-making that the committee would interpose as a result of the involvement of a police authority. Although my noble friend’s amendments seek to take a step forward, the effect would be that we retained the status quo when it came to making those crucial decisions. Accountability for those decisions would be removed from a single person and vested in an authority yet again.
A PCC selected from among the members of a police authority would be heavily constrained by the demands and interests of their fellow elected committee members. A PCC elected in that way might be swayed to side with those on the committee who have voted him or her into office, rather than having the interests of the whole force area at the forefront of their decision-making. The PCC will certainly not have the strong personal mandate that would come from direct election as an individual under the Government's model.
I referred in Committee to the Home Secretary budgeting for and negotiating the cost of this model with the Treasury. The Government are committed to ensuring that the cost of establishing a full-time, dedicated PCC within each force area does not exceed the current total cost of police authorities plus the additional cost of electing the PCC. However, to increase the cost of elections to accommodate electing not one individual to office but 17 within 41 forces outside London would be untenable.
In addition, to have to pay for a full-time PCC on top of the costs of maintaining current police authority structures and allowances incurred by the current police authority membership would not be justifiable to the general public. To tweak the current system and elect the entire membership would not solve the problem in hand.
The very reason that we are introducing police and crime commissioners is to inject much needed democratic accountability into policing, with the public having a much greater say in how their streets are policed. It is not our intention to bind the hands of the police and crime commissioner by requiring all decisions to be made through a local committee, whether elected at significant public expense or not.
My noble friend indicated in his closing remarks that he did not expect me to agree to his amendments and I am not going to disappoint him this afternoon. I cannot accept his amendment and I therefore respectfully ask him to withdraw it.
Lord Carlile of Berriew
My Lords, I am very grateful for the customarily courteous spirit in which this debate has been conducted. It has been a fine illustration of the law of unintended consequences. Sitting behind my noble friend Lord Howard of Lympne, I watched the noble Baroness, Lady Farrington, casting a halo like a frisbee across the Chamber, and I now see it metaphorically sitting above my noble friend’s pate.
Baroness Farrington of Ribbleton
My Lords, for the record, I think the noble Lord, Lord Howard of Lympne, would agree that I never ever attributed sainthood to him; I just admitted that sometimes he was right.
Lord Carlile of Berriew
I hope my noble friend will excuse me if I say that he has never been a particularly modest man, so he probably saw it as a little bit of sainthood flying across the Chamber. It takes one to know one.
I thank the Minister for the spirit in which she responded to this debate. The noble Lord, Lord Beecham, suggested that I might have shown three qualities—eloquence, wit and seduction. I will not say which one I failed on this afternoon but plainly it is at least one of them although not, I hope, all three.
As a Liberal—I use that term with a capital L and without any suffixes—I regret that the Labour Party still appears wedded to a form of democracy that I find strange; what I call the democratic principle of appointment. I do not believe there is anything in the argument that people who are directly elected will perform less independently than those who have been appointed. One of the things that elected people experience, as all my noble friends who were Members of another place know, is a great deal of pressure from their electorates. That applies to the Minister, too, who was a distinguished Member of the other place. I am dubious about that argument.
As to the likelihood of electing a mere slate of party hacks, I simply ask the noble Lord—this might not be a commendation but just a fact—to look at Middlesbrough, Hartlepool and Doncaster. He will see that elections are not always as predictable as you think if they involve a specific issue.
I simply and kindly remind my much admired friend the noble Lord, Lord Elystan-Morgan, that in the days when he was a Labour MP for a West Wales seat, the appointment of Labour councillors to police authorities had about as much to do with democracy as the popping of a champagne cork and was seen as something of a scandal from time to time throughout Wales. I therefore do not accept that the tripartite principle of which he spoke has always been an illustration of good practice.
However, I recognise when I have lost a case. I can see that it would be unhelpful to the House to press this amendment to a Division. Some valuable issues have been raised and I beg leave, on that basis, to withdraw my amendment.