Counter-Terrorism and Security Bill
Lord Carlile of Berriew Excerpts(9 years, 3 months ago)
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Lord Carlile of Berriew (LD)
My Lords, the terrible events in Paris last week give great grief without measurable mitigation. Nevertheless, such events provoke an instructive debate in which we have an opportunity to reassess some of the beliefs we have about the way in which politics, legislation and the authorities should deal with issues such as civil liberties and terrorism. The events in Paris have led many to re-examine the crucial balance between state power and civil liberties; we do well to remember that this is not science but art, and that it must to an extent reflect the development of events.
The civil liberties effect of what happened last week was not merely the continuing results for those few suspects who are still being hunted as alleged conspirators in what occurred. The effect on civil liberties has been to demonstrate how such events can put the majority in fear of exercising their basic rights, such as: free speech; artistic impression, which I regard as very important; the right to laugh at other people’s beliefs in a democratic society; and the corresponding responsibility to absorb being laughed about—particularly if you are involved in politics.
In this House, we are fortunate to have such a wide expertise of all the relevant disciplines and issues that can inform a Bill which is going to have considerable debate before your Lordships’ House, as the noble Lord, Lord Hannay, said, and will be fully considered. In this debate we have been particularly fortunate to hear two skilled maiden speeches from people who understand the security services and how they act. I look forward to hearing future contributions from the noble Lords, Lord Evans and Lord Green, on these issues. Indeed, I believe it behoves those who govern this country, and the two Houses of this Parliament, to listen to the advice of people such as those two noble Lords; to the advice of the predecessor of the noble Lord, Lord Evans, the noble Baroness, Lady Manningham-Buller, from whom we shall hear later; and to the advice of his successor, Mr Parker, who gave an unusual and not quite unprecedented but very well informed and important speech last week.
I say to my noble friend Lord Thomas of Gresford that to caricature a group of officials at the Home Office as a cadre, in the way in which I think he intended, does little justice to people who—in my experience—agonise over every issue that affects civil liberties well before they ever reach the point of advising Ministers. As others have said, we must remember that the people who police terrorism— whether they are police officers, the Security Service, the Secret Intelligence Service, or those officials in the Home Office and others—are brave and thoughtful people who play a very important part in the life of this country, and who have been extraordinarily successful. One of the reasons why there have been so few terrorism events in this country is because of the rate of attrition which has been caused by those services, and we should not forget that for one moment.
This Bill takes a few necessary steps. Some of them do not go quite as far as one would wish, others a little further, but it takes some important steps which are a responsible act by this Government. There are other issues to which we will return after the election, such as the whole picture of communications data. The canard “snoopers’ charter” is a brilliant piece of branding, but it is grossly misleading. We must allow the authorities of course to have a proportionate, reviewable, and judicially scrutinised set of powers, but a set of powers that will enable them to catch terrorists and putative terrorists. When the media naively said that there had been 50 telephone calls between the wives of the two terrorist brothers in France last week, what they should have said was that the wives’ telephones were used for communications which may well have been relevant. The authorities need to be able to take an interest in such communications. Those people who really believe that the authorities spend their time looking at the Amazon or Tesco Direct communications, or the idle chatter of your Lordships and other more ordinary citizens, are simply not looking at reality. As I am sure the noble Lord, Lord Evans, would confirm, MI5 does not have the time to intervene in the communications of ordinary citizens unless there is a reason; occasionally it happens by mistake.
Subject to proper control by legislation, and subject to proper review, these measures are broadly necessary. One of the most effective forms of review is scrutiny. As I was David Anderson’s predecessor, my noble friend Lady Hamwee wanted to be courteous to me, so I will say what she wanted to say: one of those scrutineers is David Anderson and I can state, with uncharacteristic modesty, that the present Independent Reviewer of Terrorism Legislation is matchless and incomparable in his role. We are very lucky to have him doing that job. In my comments on this Bill, I merely reflect what has been said by David Anderson, with whom I agree in all respects, and indeed the cogent summary that was given in a relatively short intervention by the noble and learned Lord, Lord Goldsmith, earlier in this debate.
I want to comment first on Clause 1, which relates to the seizure of passports. We heard some criticism of Clause 1, but I say to your Lordships that they have got to get real about what Clause 1 is dealing with. Let me give you an example. It is hypothetical but not unrealistic. Suppose a suspicious travel agent who is public spirited telephones the police and says, “I have just sold an air ticket in suspicious circumstances”, and the authorities decide it is worth following the person who has bought the air ticket. That kind of incident can occur within an hour, and it does not leave the time to go off to a judge to get permission to seize that passport. We have to allow the authorities to deal with the urgent provisions made in Clause 1 and Schedule 1.
Secondly, I turn to temporary exclusion orders. I absolutely welcome what my noble friend the Minister said in response to the representations by Mr Anderson. I agree with the independent reviewer that judicial intervention at the appropriate stage and in the appropriate way is desirable, and I look forward to seeing the Government tabling amendments which may not exactly reflect what Mr Anderson says but reflect the spirit of his representations.
The third thing I want to say is about Prevent. As someone said earlier, Prevent is a really difficult part of counterterrorism policy. I say that with feeling, because I played a part in the formation of the current Prevent strategy. The first thing to say about Prevent is that it cannot actually be done by the police. It is best done at ward level, at community level. It is better administered by local authorities, and by far and away in many areas the most successful participants come from the third sector and are not officials at all. Prevent needs imagination; it needs originality. I went to see one Prevent programme in which a young Muslim man was teaching young people about the dangers of being radicalised on the internet in the boxing club he was running, when they had had their bouts, were tired, and were drinking Lucozade or Red Bull by the side of the ring. The evidence was that that kind of activity is very successful. However, it is quite difficult to bottle that activity, so it needs a great deal of work and that means resources. Prevent has not had sufficient resources. Resources have been removed from some good programmes. It also needs better oversight. The Prevent Oversight Board, of which I am a member, actually does very little. It does not need control, but it either needs to be replaced by something that exercises a much more imaginative oversight over Prevent or it needs to be given more to do.
The fourth issue I want to mention is the Privacy and Civil Liberties Board. I am intensely suspicious when I open a tin that says “chocolate biscuits” and it contains cheese biscuits. I prefer what is in the tin to be reflected by what is on the tin. This is not a Privacy and Civil Liberties Board; this is a counterterrorism legislation review board, so if we are going to have that kind of board let us call it that. Let us be honest about what it is. I believe that reflects a view held by David Anderson. More importantly, it is vital that the independent reviewer has the capacity to see secret material, to act quickly in real time if necessary, and to communicate with the security services without having to consult a whole range of people, although he or she should be able to consult whom he or she wishes. My understanding—and I look forward to hearing from the Minister on this in due course—is that the board is being postponed in its operability at least for further reflection and consultation. It is inevitable that we will return to this after the general election has taken place, and through clear policy which will be subject to affirmative resolution if it is to be brought into force. I hope that the Government will agree that this provision, while welcome in principle, is not quite ready to be fully enacted at present. That is a perfectly respectable position for any Government to take, and I hope and trust that my Government will take it.
Those are my reflections on the Bill. I give one coda, which returns to where I started. It is about religion. I am not a religious person; indeed, I suspect that if I were provoked I would say that I believe that religion is responsible for quite a lot of ills in the world. But one thing that struck me when I looked at that parade in Paris on Saturday was that behind the phalanx of European leaders with their arms linked there was no phalanx of world religious leaders—although there were some. But among those religious leaders, there were four men from Albania, a small country which has desires to be part of mainstream Europe but which has quite a long way to go. They were the four leaders of the religious communities in Albania—two Muslims and two Christians arm in arm in declared solidarity that religion should never be used for the ends that were claimed last week. My call would be to the religious leaders of the world to link arms, as the European political leaders did, to draw to the world’s attention that, if there is a God, and if there are blessings from that God, one of them is peace and not a ghastly, asymmetrical conflict that threatens to visit us for another generation.
Data Retention Regulations 2014
Lord Carlile of Berriew Excerpts(9 years, 9 months ago)
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Lord Paddick (LD)
My Lords, as a Liberal Democrat and a former senior police officer I am acutely aware of the need to balance privacy and security. In these regulations, as my noble friend the Minister said, the Government appear to be maintaining the status quo with some additional safeguards, going a little further for example in enshrining what has been best practice to date into the new regulations. Pending the wholesale review of the Regulation of Investigatory Powers Act and related legislation, which we successfully negotiated with the Government and the Labour Party in the other place managed to get into the primary legislation, it is the best that we can do in the circumstances. On that basis we support the passing of these regulations.
Lord Carlile of Berriew (LD)
My Lords, I have been through these regulations and the Explanatory Memorandum with some care and I have also taken the trouble of ascertaining the views of David Anderson QC, the independent reviewer to these regulations. There were a number of unanswered questions during Second Reading recently, particularly relating to the future role of the independent reviewer of terrorism legislation. I look forward to receiving a response from my noble friend the Minister to those questions in due course, I suspect when the answers are clearer than they were at Second Reading. However, I am totally satisfied that these regulations do the absolute minimum to give effect to the minimum requirements of the Government. The regulations provide every possible safeguard there could be in all the circumstances and I, too, hope that the House will support them.
Baroness Smith of Basildon (Lab)
My Lords, I am grateful to the Minister for the care he has taken in going through the detail today and to other noble Lords who have added their comments. I do not think it is necessary to repeat the arguments and debate we had during the passage of the Bill. We recognise, of course, the necessity for retaining data information and when tackling serious and organised crime. We made that clear. The noble Lord, Lord Paddick, referred to our amendments in the other place. We think they improved the legislation and safeguards for the future. A complete review of RIPA was extremely important. We are very grateful that the Government accepted those.
As always, we have to be certain why and how we are collecting information. I think it is also clear that not only is that needed but these regulations were needed. When we had the debates in your Lordships’ House, the Constitution Committee recommended that these regulations did not wait until after the Summer Recess and I am grateful that the Government took that on board. We agreed with the committee and I am glad that the Government did. It makes sense and it is entirely appropriate that we have these regulations before us prior to the Summer Recess.
I have a couple of points that need clarification, if the Minister can help me. I think I am getting slightly confused on the six-monthly review about the roles of the Information Commissioner and the Interception of Communications Commissioner. Can he clarify what the relationship will be between them in undertaking the six-monthly review? Can he also confirm that when they review the legislation, because we have not had the time that we would normally have for consultation on these regulations, they will have the opportunity to review the operation of the regulations as well?
I am grateful to the Minister for making it clear and I think other noble Lords have added their expertise to that. Nothing in these regulations goes beyond the status quo and it is clear the Government have done the minimum necessary in the legislation. However, as he said, there will be further regulations required that extend the safeguards. Something we debated and discussed at some length—with differing views—was access to information. The Minister will recall the comments of the noble Lord, Lord Blencathra, and my noble friend Lord Rooker on this and how important it is that information is used appropriately, as well as the value of it. I know there are further regulations to come. Could the noble Lord say something about when we will see those regulations and what opportunity there will be for consultation on them? Can he also confirm that they will be approved by the affirmative procedure?
We are grateful to the Minister for bringing these regulations before us today before the Summer Recess. They have our support.
Data Retention and Investigatory Powers Bill
Lord Carlile of Berriew Excerpts(9 years, 9 months ago)
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Lord Howard of Lympne (Con)
My Lords, I rise with some temerity to disagree with the views expressed from the Benches opposite, but it seems to me, as a matter of principle, that when the Government and the Parliament of the United Kingdom consider how to introduce legislation consistent with a decision of the European Court of Justice, it is the substance of what the Government and the Parliament of the United Kingdom are providing which is important. It should not be necessary, and it would not be a healthy precedent, if Parliament took the view that every time we had to amend our legislation in order to comply with a judgment of the European Court of Justice, it was incumbent upon us to adopt language identical to that found in the judgment. So there is at least the vestige of a point of principle here, and that point of principle leads me to support the view expressed by the Minister.
Lord Carlile of Berriew (LD)
My Lords, I support what has just been said by my noble friend Lord Howard of Lympne. I speak not as a judge but as someone who has drafted many skeleton arguments to take before senior courts, and given a phrase such as “strictly necessary”, I would spend my time in preparing a case by looking for authorities decided by the courts in which there was a difference between the terms “necessary” and “strictly necessary”. I have spent some time doing so this morning, and I have failed to find such a case so far—although of course I will defer to the noble and learned Lord, Lord Hope, if he can find one for me. Judges are often so much better informed than those who appear before them, and I feel a little as if I am in that situation now.
However, speaking for those of us who are paid, sometimes a great deal of money, to create a difference where none exists between a phrase such as “strictly necessary” and the mere word “necessary”, I would say to the Minister: please avoid tautology. It is expensive, and not terribly helpful.
Lord West of Spithead
My Lords, the point made by the noble Lord, Lord Howard, is important, and I accept it. There is a danger of raising a precedent here. On a point of clarity for a simple sailor, may I ask: if an amendment is taken today, is there a mechanism within this urgent high-speed way in which we are doing things to get the change back to the Commons to get it sorted out, or are we talking in a vacuum, because nothing has been organised to achieve that?
Lord Carlile of Berriew
My Lords, I join those who urge my noble friend not to be attracted by the arguments presented this afternoon for reducing the time available for the full consideration of these matters. I also join those who thank him for the assistance we have been given in the letter that was sent this morning to some, and possibly all, of us who are present. I also thank his officials who put up with some pestering telephone calls this morning, certainly from me.
I remind your Lordships that the sunset provision does not provide for revival of this legislation by statutory instrument. The sunset provision ensures that the legislation falls completely on 31 December 2016. We therefore have to allow due and proper time for consideration of these matters.
I join the noble Lord, Lord Rooker, in what he said. I am sure that the House was very pleased to hear that he is a member of the RUSI panel that has been put together with some difficulty and over considerable time at the behest of the Deputy Prime Minister. As I understand it, the panel will consider a substantial amount of evidence, not just from within the United Kingdom. It will be making comparisons with other jurisdictions, and the range of talents on the panel goes right across the disciplines that deal with this issue. We have to allow time for the RUSI panel to do its work.
A number of other reviews are also taking place. Shortening the timescale for the new legislation would undermine the extremely important review of RIPA, which will be a thorough and systematic review of the Act. Let us not forget that completely new legislation has to be in place before the end of 2016. We know in this House that, very properly, that legislation will be the subject of detailed debate. We know that some of my noble friends—I am looking at my noble friend Lord Strasburger who quite properly will be one of those—will put down amendments that will challenge some of the thinking behind the legislation that will be presented. That legislation will take some months to go through this House and we must be ready for it with reviews that have really looked at every issue.
Perhaps I can be forgiven for using a couple of words of Latin, which would probably be deprecated by the noble and learned Lord, Lord Hope, if he were sitting in court. I am pleased to see that he is shaking his head. Perhaps this is the time when we should—
Lord Hope of Craighead
I come from Scotland where Latin is still spoken by lawyers. We did not adopt the approach of the noble and learned Lord, Lord Woolf. I am very happy to listen to Latin words—and perhaps I will understand them as well.
Lord Carlile of Berriew
Not so long ago, I went to Cranston’s tea rooms in Glasgow and tried to order some lunch. Plainly it was because Latin was being spoken that I had such difficulty. What I was going to say, using two words of Latin, was that perhaps this is a time when we should festina lente.
Child Abuse
Lord Carlile of Berriew Excerpts(9 years, 9 months ago)
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Lord Carlile of Berriew (LD)
My Lords, given the unfortunate circumstance that the noble and learned Baroness, Lady Butler-Sloss, is no longer to chair the inquiry, is the Minister aware that there are seven extremely distinguished, female members of the Court of Appeal, Lady Justices? Is he aware that the appointment of any one of those seven would be extremely welcome to most Members of this House, and that a number of them, like the noble and learned Baroness, have special experience in dealing with issues concerning family law?
Lord Taylor of Holbeach
I have expressed the views of the Home Secretary and the disappointment that the noble and learned Baroness, Lady Butler-Sloss, will not be taking this inquiry. The House has shown its feelings on that matter. I do not doubt that we will find a competent person to take the chairmanship and that, in turn, we will find people to join that person in forming the panel that will lead the inquiry.
Data Retention and Investigatory Powers Bill
Lord Carlile of Berriew Excerpts(9 years, 9 months ago)
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Lord Carlile of Berriew (LD)
My Lords, like most noble Lords who have spoken, I support the Second Reading of the Bill on the understanding that its purpose is to preserve evidence of a kind that is currently available to the courts. Indeed, I congratulate the Government on their declared intention to increase the safeguards over the use of communications data, though I shall have something to say about safeguards a little later.
I am concerned that some near-hysterical misinformation has appeared in the media in relation to the use of the data concerned. The canard has been sold—I think that is what you do with canards—wholesale that the Bill is directed mainly, even exclusively, at terrorism. That this is not so is demonstrated by one statistic from the Crown Prosecution Service—my noble friend Lord Macdonald adverted to this—which is that 95% of its serious and organised crime cases include evidence of this kind as part of the proof against the accused, and sometimes it is the crucial proof. There is a necessity to ensure that such crucial evidence remains available and, of course, it is important that service providers know what the law is and where they stand.
All that said, I have three reservations with which I hope the Minister can assist the House. They have grown over the days since the Bill was announced, particularly on reading yesterday’s debate in another place. The first is my concern about the case for urgency. I, too, noticed the observations and reservations of the Constitution Committee, which were published this afternoon. The reasons given by the Home Secretary in the other place on 10 July and yesterday were, I am afraid, far from convincing. I have spent most of the past 15 years trying very hard to disagree with David Davis on almost everything, and he has been trying equally hard to disagree with me, but on this subject I agree with him. I also particularly agree with the noble Lord, Lord Butler, who brings to this discussion all his experience of the workings of government. I can see that a shortened period for this legislation might have been necessary, but one day in the Commons and two here just are not sufficient for legislation of this importance. Indeed, with a proper period, the new safeguards could have been included in the Bill and could therefore have been part of a holistic package, as opposed to a less than holy promise. There is absolutely no evidence that I have seen that this Bill could not have been introduced a month ago, and given that we are sitting until, I understand, 30 July, there is no reason why the Bill could not have been given some more days for proper debate in Committee. Indeed, as a veteran of dealing with the Anti-terrorism, Crime and Security Act 2001 when I was independent reviewer of terrorism legislation, I remind your Lordships that Ministers who introduce legislation in haste are later left to repent it in panic.
I now turn to my second reservation. Nothing more than a summary of the intended future safeguards is available. That is hardly a reassuring position. As I understand it, there has been precious little consultation about them outside Parliament. Will the Minister tell your Lordships who outside Parliament has been consulted formally on the safeguards? One of the things that were announced yesterday was the abolition of the independent reviewer of terrorism legislation, who is currently the brilliant David Anderson QC. We have heard much entirely justified praise of him in this debate, but he is being abolished. Can we have an explanation of why? Will the Minister please tell the House when Mr Anderson himself was first informed of the intended abolition of his post? How much earlier than yesterday was it? How long was he given to respond to the proposal? What arrangements exist for a full and proper consultation on the proposal to abolish the independent reviewer, who has the advantages just mentioned by the noble Baroness, Lady Kennedy of The Shaws? Why does the Minister believe that the replacement of the independent reviewer with a committee or board will strengthen the scrutiny of issues, subject to limitations that are necessarily dictated by national security?
I turn to my third concern, which is about the terms of reference of the proposed, so-called independent privacy and civil liberties board. The first thing I say to my noble friend is: let us be honest about what this board is. It is the counterterrorism oversight board, and we would do well to adopt the title used in the United States so that it is what it says on the tin, as it were. I ask my noble friend to answer these questions. Was Mr Anderson consulted about the terms of reference for that board, which have been published today? If he was, were any of his comments rejected as part of the terms of reference, and if so, which ones? I am sure that the Minister will have information at his fingertips within minutes. In particular, there is the crucial question raised by the noble Baroness, Lady Kennedy. Will members of the board enjoy developed vetted access to be able fully to scrutinise counterterrorism activity by the services? It is crucial that, if his post is abolished, someone should have that access. It is important to have a positive assurance of that, otherwise what has been announced is a seriously retrograde step in terms of scrutiny.
Mr Anderson, and, indeed, I before him, spent more than 100 days a year up to now as independent reviewer. At the worst time, after 2005, in one year I spent 144 days, I think, as independent reviewer. It was certainly more than 140 days. Will the members of this board be expected to give, and will they be paid for, the 100-plus days per year that independent reviewers of terrorism legislation have given in every single year since 2001? Can we be assured—I speak here of David Anderson, not of myself—that the people on this board will be of such a quality that they are able to scrutinise such matters using their past analytical experience? It is not something you can just walk into out of some other discipline.
I notice that one of the aims is expressed in the terms of reference, rather oddly, as being to:
“Provide public assurance that the current arrangements ensure”,
satisfactory regard to, “privacy and civil liberties”. May we at least have an assurance that the words “or otherwise” will be added so that the mission is not just to ensure that the Government are doing the right thing, but to be able to state clearly when they may be doing the wrong thing?
Also, can the Minister assure us that the current requirement for an annual review of all sensitive counterterrorism legislation will be part of the terms of reference of this board if the independent reviewer is abolished? That is something that happens now and it has proved peculiarly useful. My suggestion to your Lordships would be that if the Government wish to create this board—and, as I said at the beginning of these comments, I am very much in favour of increased safeguards—alongside that they should continue to have the independent reviewer of terrorism legislation, and he can usefully chair the board as well. It might involve more than 140 days, but I am sure somebody could be found to do it because it is an extremely interesting and intellectually rewarding task.
I apologise for taking up more than the average time in this debate, but the points I have sought to make are all, in my view, important ones that we could and should include in legislative scrutiny, were we to have a more normal timeframe. In the absence of that, I invite the Minister to respond to the questions I have just raised.
Ibrahim Magag: Disappearance
Lord Carlile of Berriew Excerpts(11 years, 4 months ago)
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Lord Taylor of Holbeach
I hope that I have just given the noble Lord an indication of the way we think about these matters. It is too soon to say whether lessons can be learnt. The most important thing is to ascertain the whereabouts of this person and to apprehend him.
Lord Carlile of Berriew
Will the Minister accept that the fact that Mr Magag did not abscond while subject to a judicially approved relocation order, and that he absconded when that was removed, is in itself clear evidence of the poor decision to remove relocation orders? Will he also acknowledge that nobody absconded while subject to a relocation order, and that there were no absconds at all during the last four and a half years of control orders?
Lord Taylor of Holbeach
Again, the noble Lord speaks with a great deal of experience on this issue. I note the point that he makes, but I have given my answer and I hope that noble Lords will accept it.
Justice and Security Bill [HL]
Lord Carlile of Berriew Excerpts(11 years, 10 months ago)
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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(12 years, 4 months ago)
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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(12 years, 4 months ago)
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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(12 years, 6 months ago)
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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.