Terrorism Prevention and Investigation Measures Bill

Lord Carlile of Berriew Excerpts

Wednesday 19th October 2011 Lords Chamber

My final point is to emphasise that we are calling on our fellow citizens, whether they be the Home Secretary or judges, to undertake as difficult a judging task as exists in the panoply of judging. I hope that the Government will concur with the amendments.

[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 Lloyd of Berwick]

My Lords—

[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.

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Moved by

[Lord Carlile of Berriew]

6: Schedule 1, page 22, line 5, at end insert—
“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.”

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[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.

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[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?

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[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.

Amendment 6 withdrawn.

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[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.

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[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

Wednesday 5th October 2011 Lords Chamber

[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.

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[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.

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[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.

--- Later in debate ---

[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

Wednesday 5th October 2011 Lords Chamber

[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

Thursday 14th July 2011 Lords Chamber

[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—

--- Later in debate ---

[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.

--- Later in debate ---

[Lord Carlile of Berriew]

Order! Order!

[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—

Motion agreed.

[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 Campbell-Savours]

I am sorry to press the noble Lord—

[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

Wednesday 13th July 2011 Lords Chamber

[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.

--- Later in debate ---

[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

Wednesday 29th June 2011 Lords Chamber

Moved by

[Lord Carlile of Berriew]

1: Clause 1, page 1, line 10, at end insert—
“( ) 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.

--- Later in debate ---

[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.

Amendment 1 withdrawn.

Police Reform and Social Responsibility Bill

Lord Carlile of Berriew Excerpts

Thursday 16th June 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, this amendment obviously concerns the Advisory Council on the Misuse of Drugs, and I must declare an interest, having been a member of the technical committee of the ACMD until last month.

This committee, as everyone knows, has gone through some turbulent times. One can, in some ways, see why the Government’s proposed wording to amend the Misuse of Drugs Act is as it is, because it aims to provide greater flexibility and to avoid situations where the council could not meet if the constitution was too rigid.

I understand that the Government have said that they will publish a working protocol governing their relationship with the ACMD, but that has not, as yet, been produced. It is likely to include a list of areas of expertise to which the Home Secretary will have regard when making appointments to the ACMD, and the protocol will be placed in the Library. Unfortunately, my understanding is that the protocol will not be available until after the Bill has received Royal Assent, which is why the amendment is important. We need to know what is to happen. The protocol may not be a sufficient safeguard in the longer term to ensure that there is a well-balanced ACMD. A future Home Secretary would be under no obligation to follow the principles of the working protocol. If it was guidance, they could simply decide to ignore it.

The reason for specifying the groups in the amendment is to try to be broadbrush, without being too prescriptive. Having been a member of the technical committee, I became acutely aware of how important the scientists, the drug control people and the behavioural scientists were to that committee. They brought a dimension and understanding to some things that the rest of us did not have, however much we tried to read around the subject. One of the people from whom I learnt the most was a member of the police force on the technical committee, who brought a degree of insight into the functioning of the outputs of the committee that I found most helpful, as, I think, did others. We invited experts to give us evidence, but the collective memory that formed around the table was important.

I question the Minister about exactly how the process of appointing new members to the council will be conducted. The experience of appointments made in January this year and the subsequent cancellation of one of those appointments, that of Doctor Hans-Christian Raabe, suggests that improvements could be made to the appointments process. When non-scientific appointments are being made, will the Government ensure the expertise available to the appointment panels to assess the competencies of those who are applying? They might look good on paper, but if the appointment panel cannot ask the appropriate questions, it may miss out on the person who could contribute most to the panel.

Under the amendment, I seek assurance about the present safeguards to ensure that appointees have the appropriate level of experience, and about how they will be transferred when the Bill comes into force, to avoid a repetition of some of the unfortunate incidents that have occurred recently, and the bad publicity that goes with that, which undermines the credibility not only of the committee but, more importantly, of its decisions. I beg to move.

[Lord Carlile of Berriew]

My Lords, although not wanting to repeat the eloquent and informed moving of the amendment by the noble Baroness, I shall speak briefly in support of it. I can well understand why the Government want to be rid of the six specified disciplines in existing law. They are too prescriptive. However, the noble Baroness in her amendment has set out in a much broader way the activities and experience of people who should be members of the advisory council.

I find it difficult to understand why the protocol has not yet been published. It cannot be too long a document and it cannot take too great a time to prepare. I hope that we will hear something positive from the Minister about the future of the council. In particular, it would be very helpful if my noble friend could tell the House that at least the spirit of the noble Baroness’s amendment will be incorporated in the protocol. Above all, perhaps she could assure the House that the prediction that the protocol will not be produced until after Royal Assent is quite wrong and that it will in fact be produced quickly, we hope, so that it is available to Members of this House by Report.

[Lord Stevenson of Balmacara]

My Lords, close readers of the Marshalled List will realise that the amendments in my name are very similar to those tabled by the noble Baroness, Lady Finlay. Indeed, I read them three or four times and I still cannot quite see the difference between them. I am not sure why they appear twice. In fact, it is impossible to read things at this stage, because having been through the alphabet soup of the amendment list, you get so confused about what is or is not there. The noble Lords who have occupied the Chair have done a fantastic job in guiding us through without too many mistakes, so that we have arrived at a Bill that will contain most of the things that it should.

That aside, I simply want to make the point that has been very well made by the noble Baroness, Lady Finlay, and echoed by the noble Lord, Lord Carlile. In her response to the previous group, the Minister mentioned the ACMD about eight times, reflecting the importance that the Government place on that. At the same time, in the name of flexibility, they are seeking to make rather more opaque exactly how those members will be appointed and what their specialisms will be and they have not given us a sense through the protocol of how they intend to do this. This is not a satisfactory basis for proceeding and I hope that the Minister will be able to respond positively to us. We remain in some doubt as to why appointments to the ACMD have been made so flexible; nor are we able to know what they will be looking for in the future.

--- Later in debate ---

[Lord Thomas of Gresford]

I do not propose to ask the House to agree to this amendment tonight. This is the Committee stage. We shall consider the issue further. As I have already said, the criticisms so gently advanced to me by my noble friend have led me to believe that we might consider how to rephrase it in a way that would be more acceptable to the House.

[Lord Carlile of Berriew]

My Lords, we are proceeding in the usual orderly way of your Lordships’ House and there remain two amendments that have not yet been spoken to. The first of those is the new clause proposed in Amendment 246, which is in my name and those of other noble Lords, who have been very helpful in our approach to it. Then there is an amendment to that new clause in the name of my noble friend Lady Tonge. I say at the outset that I accept entirely her amendment to my proposed new clause. It seems eminently sensible. The proposed new clause is about giving an account to Parliament of the progress in war crimes cases. I hope the House will indulge me for a few minutes in speaking to this. I shall then say a few words about the matters that have been discussed hitherto. However, unlike my noble friend Lord Thomas of Gresford, I shall not give further details of what was designated by him to be a private conversation that took place earlier in the Bishops’ Bar.

There is a specialist war crimes team within the UK Border Agency, which is a very good thing. However, unlike many European and other countries, there is no specialist war crimes unit in either the police or the prosecution services. Other noble Lords and I were involved in all-party and non-party negotiations with the previous Government to expand the universal jurisdiction. Those negotiations were successful. However, they were successful subject to the insistence of the previous Government that what is in Clause 154 should be inserted into the law. All those involved in those negotiations accepted that at the time as being a realistic argument.

As I have said, there is no specialist war crimes unit in either the police or the prosecution service in any part of the United Kingdom. Instead, in England and Wales responsibility for war crimes is shared by SO15—Counter Terrorism Command in the Metropolitan Police—and the equivalent section, headed by Sue Hemming OBE, in the Crown Prosecution Service. The police team responsible for war crimes is also tasked with counterterrorism policing relating to dissident republican groups from Ireland. It therefore has an enormous amount of work to do and deals with a fast-moving scene, irrespective of war crimes.

What does the proposed new clause seek to do? It requires the Government to report annually on all legal action taken against suspected war criminals in the United Kingdom, and on the assistance given to other states and international criminal tribunals. I should argue to your Lordships that it is entirely reasonable and proper that the public and Parliament should be able to take stock of progress in war crimes on a regular basis. Taking stock in that way—having accountability of that kind—will ensure that the Government bestow on the relevant police section the resources that are needed to prosecute war crimes. There have been no prosecutions for war crimes since the prosecution in 2005 of an Afghan warlord who was found living in south London. However, a Peruvian was arrested in Tiverton in Devon in March 2011. He is accused of torture and crimes against humanity for his alleged role in more than 100 killings as a member of a death squad, and is currently on police bail. We hope to see some progress in that case within, of course, the usual legal proceedings.

It is remarkable, given the number of war criminals who are believed to be living in the United Kingdom, that there have been no other prosecutions since 2005. It suggests that insufficient resources are being given to the task. After all, one should bear in mind that, since 2005, the UK Border Agency has taken immigration action against 360 suspected war criminals, while the Metropolitan Police is currently pursuing 29 viable lines of inquiry. The 360 suspects come from a number of countries, including Iraq, Afghanistan and the former Yugoslavia. The UK has also received extradition requests for four subjects from Rwanda who won their extradition proceedings and remain in the United Kingdom.

In addition to the 360, I was visited this afternoon by a representative of an organisation in Bangladesh, which is not included in the list that I enumerated as 360 cases. It is believed that there are several Bangladeshis who have been able to take refuge in this country who committed vast atrocities during the 1971 war in that country. They, too, should be the subject of investigation.

In sum, the purpose of the proposed new clause is to ensure that the necessary progress is maintained in dealing with war crimes and crimes against humanity. I hope that my noble friend the Minister will give some encouragement to myself and others who they put their names to the amendment in the hope that we will see more action promised and in due course taken on this front.

I now turn to the amendments proposed to Clause 154. Despite the eloquence of my noble friend Lord Thomas of Gresford, I am disappointed that my noble friend Lord Macdonald of River Glaven was not here to speak to his amendment this afternoon. I know that he has a busy diary and I am sure that he is doing something very important. But I am glad that we have the wisdom of the noble and learned Lord, Lord Goldsmith, and the noble and learned Baroness, Lady Scotland, who will inform the House of their experience.

The importance of my noble friend Lord Macdonald of River Glaven and his potential contribution is that he is the immediate past Director of Public Prosecutions. I am working on the assumption that he has not consulted his successor, because what is proposed in his amendment, spoken to by my noble friend Lord Thomas, is inconsistent with what has been said very cogently to parliamentary committees by the current Director of Public Prosecutions, Keir Starmer QC.

I would say this to my noble friend if he were here, but were he still the Director of Public Prosecutions I do not believe that he would be prepared to support an amendment of this kind. It is quite simple in my view—I seem to be the only one from the Liberal Democrat Benches who is supporting our Government on this matter this evening—but the simplicity needs to be stated. The Director of Public Prosecutions and his senior staff make charging decisions every single day of the week. That is what they do a lot of the time and it is done at the most senior level. The suggestion that there would be a delay is a canard.

I do not think that I have to declare an interest—indeed, it would be sexist to do so—when I say that my wife works in a senior position for the Crown Prosecution Service, but living with a shared telephone I am well aware of the urgent decisions that are considered in great depth and taken at all kinds of unsocial hours and on all matters of urgency. The suggestion that there would be a delay is simply quite wrong. Furthermore, the Director of Public Prosecutions and his senior staff have enormous experience in making charging decisions. They make all the important charging decisions that take place in this country—or almost all; they should make all, if they are referred to them by their junior staff. In so doing, they apply the Crown Prosecution Service code.

These amendments, particularly that spoken to by my noble friend Lord Thomas of Gresford, attempt to fix in statutory stone something that is much more evolutionary—and needs to be. The Crown Prosecution Service code has gone through many changes. It is reviewed and changed regularly. Since Keir Starmer QC became DPP, it has been changed again and there may be good reasons for changing it in future. Furthermore I hope, and indeed apprehend, that the Director of Public Prosecutions would want to consult widely on the universal jurisdiction and might well wish to issue a code of practice. That might involve some changes to the current code. After all, the Crown Prosecution Service has a special code for dealing with rape cases which is non-statutory. It would be extremely foolish to make it statutory because it would be prevented from change. The same applies to the universal jurisdiction.

I say to my noble friend Lord Thomas of Gresford, in the kindest possible way, that the noble and learned Lord, Lord Goldsmith, with a single kick scored a hat trick when he demonstrated that the amendment put forward by my noble friend, and indeed by my noble friend the former Director of Public Prosecutions, is fundamentally flawed in its text. It shows exactly the danger of attempting to put into tablets of stone this sort of provision, even when it has been drafted by lawyers as distinguished as they.

I say to noble Lords who have tabled amendments to Clause 154 that we have a responsible Crown Prosecution Service, that we have a responsible and able Director of Public Prosecutions, and that it has been decided that this should be done not by the Attorney-General but by the Director of Public Prosecutions, who is a completely apolitical figure. It seems that the Government have got this exactly right. I hope that the Minister will not budge in his determination that Clause 154 should be unamended.

[Lord Pannick]

I was a witness to the discussions in the Bishops’ Bar between the noble Lords, Lord Thomas and Lord Carlile. I will not give evidence; I claim immunity. I welcome Clause 154. It will remedy a serious anomaly in the current state of our law. The anomaly is that although a prosecution in this sensitive and important context requires the consent of the Attorney-General, a person may be arrested and detained without any consideration as to whether such consent is likely to be given. It has been suggested in this debate that there have been very few cases of that. So what is all the fuss about? Why do we need to change the law? The noble Lord, Lord Campbell-Savours, made that point in opening and the noble Baroness, Lady D’Souza, made the same point.

I declare an interest. Over the past few years, I have advised, pro bono, a number of individuals who have been deterred from visiting this country by reason of the state of our law. They have been deterred even though there was no realistic prospect whatever of the Attorney-General giving consent to a prosecution. These people would not have been protected by diplomatic immunity because that applies only to certain very senior Ministers. They were deterred from coming to this country because of the risk that material would be put before a magistrate at an urgently convened hearing which might result in them being arrested and detained for a couple of nights, with all the inconvenience and embarrassment that that would cause, until this unhappy matter could be sorted out by the Attorney-General confirming that he or she did not intend to prosecute. So it is quite wrong to suggest that the current law has no serious effect. I should also mention that I have also advised, again on a pro bono basis, Jewish community groups in this country concerned about this aspect of the law.

Police Reform and Social Responsibility Bill

Lord Carlile of Berriew Excerpts

Monday 6th June 2011 Lords Chamber

[Lord Hunt of Kings Heath]

I am grateful to the noble Baroness for her response. I do not wish to detain the Committee. Three points have been raised in this debate. The first is that the issue of the European Parliament is a red herring. We changed the law because there was a problem with a Liberal Democrat MEP who, because of European law, would have been disbarred from standing for and accepting a seat in Europe because she was also a Member of your Lordships’ House. That was why we made provision for a special leave of absence.

The second issue is that many Members of your Lordships’ House also have full-time responsibilities. We have many lawyers. Indeed, I see the noble Lord, Lord Carlile, in his place. He always strikes me as being not only a hardworking lawyer, but also an assiduous Member of the House. The noble Lord, Lord Lyell, mentioned the Lords Spiritual, and we heard from my noble friend and the noble Lord, Lord Tope. What is of concern is that the Home Office seems to be enunciating a new rule which states that the Home Office is now deciding whether it is appropriate or not for your Lordships to take on another responsibility. It is not for the Home Office to so decide. I should tell the noble Baroness that I am certain of one thing: if this is put to the vote at the Report stage, she would lose it.

[Lord Carlile of Berriew]

Before we conclude this interesting debate, I thought I might add a few words. The first thing that occurs to me is that we are introducing an entirely new principle which will deprive an existing Member of your Lordships’ House of the right that he or she has acquired by Writ of Summons and under the Royal Prerogative to attend this House of Parliament. That seems to me to be a very serious departure within our own jurisdiction. I agree with the noble Lord opposite that the position of Members of the European Parliament is quite different for European constitutional reasons.

Police Reform and Social Responsibility Bill

Lord Carlile of Berriew Excerpts

Tuesday 24th May 2011 Lords Chamber

There will be an extraordinary situation in London if the Government bring forward some of these changes early there, which means that they may occur as soon as 1 October. A set of accounts will have to be produced for the period up to 30 September and then, by 1 October, two entirely separate financial systems will have to be set up. Those will be separately audited in order to produce two completely new sets of audited accounts for the period from 1 October to 31 March. If nothing else, this seems to me a cavalier use of public money at a time when we are told that every effort should be made to economise. I suspect that this duplication is unnecessary and unintended. I hope that the Minister will take this matter back, the Home Office will look at it again and that it can be sorted out without this unnecessary duplication.

[Lord Carlile of Berriew]

My Lords, I speak from a position of neutrality on these amendments. I wish to illustrate my remarks by recounting something that happened to me when I was a Member of the other place. A rave occurred in rural Montgomeryshire, which involved 10,000 people, loosely described as hippies, invading a couple of fields in the south of the constituency. As the local Member of Parliament, I made an arrangement with the police that I would telephone them late every evening for a report on what was going on in relation to public order around the rave and all the other issues that arose. One evening I telephoned at midnight from my then home in Berriew to the public line of the Dyfed Powys police. The telephone was answered by a man called Ray White, who was the chief constable of Dyfed Powys at the time. He was manning the public telephone line, doing his turn in the office of constable.

I tell that anecdote because in my view whether a chief officer of police is a corporation sole and however we dance on the head of a pin about the legal definition of a corporation sole, I suggest that the overwhelming purpose of a chief constable—I look forward to hearing the Minister’s response—is that he acts, albeit as chief, in the office of constable. I therefore urge the Minister to recognise that whatever grand titles are given to him, and whatever the legal technicalities of the matter—far be it from me to avoid legal technicalities; many of my learned friends make a good living from them—it should be recognised that in this legislation we are seeking to strengthen the role of the chief officer of a police force, not in the role of manager but in the office of constable at the head of his force.

Having said that and having watched at close quarters the splendid Mr White, for whom I came to have enormous admiration, running his force, I realised in our many meetings that he was also the chief executive of an organisation that covered in Dyfed Powys a huge area and, like all police forces, had a massive budget and set of responsibilities. As it happens, Mr White had some good management qualifications that he had acquired along the way through his life as a police officer, and he put them to good use. I hope that my noble friend will confirm in her response that the purpose behind the Bill and the creation of a chief constable as a corporation sole is to enable him or her more effectively to be the chief executive of what is, in effect, a large public business, and to remove from that chief officer some of the inhibitions that may currently exist in running that business.

I hope, too, that the Minister will confirm that the chief officer who is a corporation sole will have to pay extremely close attention to employment law and employment law standards as they are today. For example, it was suggested that a chief officer might surround himself or herself with chums—people who he or she likes because they happen to agree with him or her on most issues. As political party leaders learn quickly, it is actually a bad idea not to have among your top team people who are prepared to disagree with you on a daily basis and to act as devil’s advocate in any event.

However, in order to achieve a real top management team, whether or not they agree with the chief constable, I hope that the Minister will confirm that appointments standards will have to be high and that they will have to accord with the self-same standards that are required in the appointment of senior managers in companies. One can also look at the public sector for examples. The Judicial Appointments Commission has a transparent system for the appointment of judges that includes lay membership of appointment bodies. I hope that the Minister will confirm that fair interview techniques and appointment systems will conform to the very best standards in the public sector.

I know that later we will debate matters of discipline, but it would help if at this stage my noble friend also confirmed that in conduct and disciplinary matters—a difficult area for chief officers of police—the same high standards that are applied elsewhere in the public sector will apply to police forces. I hope she can also confirm that a chief officer, albeit as a corporation sole, will never be able to act as judge and jury in their own cause. I promise the Minister that my learned friends will make a real killing if that is what occurs, because every such decision would be open to immediate judicial review, and the chief officer would lose if he or she did not act in a way that was neither arbitrary nor disproportionate.

Finally, I wanted to say something about finance directors. I return to my experience of Dyfed Powys and of some other forces for which I have acted as an adviser professionally, either for the police force or for the police authority. I observed that the chief finance officer of the police force was an extremely important figure, who held a sort of honorary ACPO rank, although he or she was not a police officer. The chief finance officer of the police force and the accounting officer of the police authority seemed to carry out completely different roles. The chief finance officer of the police force was really the chief accountant of a very big business. The accounting officer of the police authority carried out a much more restricted role, because the turnover of the police authority was inevitably much smaller—at least as regards its functions, as opposed to those of the force. Duplication would be unwelcome, and I hope that my noble friend will confirm that if there are to be separate finance officers, they will not carry out duplicated roles. Perhaps she will explain to the House what their different roles will be, at least in outline.

[Lord Harris of Haringey]

Does the noble Lord accept that it is possible to construct a situation where you have a finance officer in the force and a finance officer in the authority, the commission, commissioner or whatever it is, with different roles, so you do not have duplication; but you have removed from the commissioner, authority or whatever the opportunity adequately to control the financial matters which, as the body to which the chief officer of police is accountable, it should control?

[Lord Carlile of Berriew]

I am always prepared to defer to the noble Lord, Lord Harris of Haringey, because he is a much greater expert than I am on how police forces are run. I see the potential for constructive tension, if it has to be tension, between two finance officers carrying out different roles. I see them as providing a check and balance on one another and their roles as being markedly different in any event. That is something we can learn from the current situation in which, as I said, the chief finance officer of a police force carries out a major managerial role and the accounting officer of the police authority a very different function.

Can the Minister confirm that the Government feel satisfied that we will not have a high degree of duplication and that the role of the finance officer in the force will be related to operational matters and that of the other finance officer to the rather different strategic matters? There, perhaps, we have the answer to the question of the noble Lord, Lord Harris, about Tasers. Tasers are the sort of thing which may well be strategic and one would expect to be discussed by the commissioner and those to whom he is accountable, whatever structure we end up with at the end of the Bill. The deployment of such Tasers as are purchased at any incident is plainly an operational matter, which must be left in the hands of the chief officer. That is an example of how different functions will deal with different aspects of police activity.

[Lord Dear]

I was going to speak at length about the points that have been very adequately covered by the noble Lord, Lord Carlile of Berriew, and, not for the first time, I find myself in complete agreement with what he said. I will just pick up one or two of the points in an effort to be brief. Let us get a sense of reality back to this. I have heard phrases such as chief officers getting their own way and blue-eyed boys—by which I assume we mean blue-eyed girls as well. As has been said, no chief officer today or in the past 15 to 20 years could get away with that sort of piratical approach to policing. They have to prefer discussion and challenge. Of course, they like winning but I think that if one gets used to winning all the time, there is an in-built problem with the management style.

As for blue-eyed boys and girls, I suppose that loosely you could say the same thing about generals, captains of industry or the judiciary. The whole point is that if, as I think will be demanded under the new regime, you have a system with independent assessment and/or a proper board structure but, above all, transparency which in the final analysis is defensible in the courts, there is nothing to lose. I, for one, would not want to see the legislation being overprescriptive on this. You have to leave some room for balance and common sense, appreciating that, if you go past a certain line, particularly in the area of appointments, you are going to be challenged, so you do not tread over that line in the first place.

I want to say a brief word about the finance officers. There are of course two in place at the moment—one in the police authority and one within the force itself. I am not sure whether I was the first but I was certainly one of the early chief constables who civilianised the old police role of assistant chief constable, admin and finance, bringing in a very well-qualified civilian. I put them on ACPO rates of pay and ranked them equal with ACPO. You would certainly find that model in many police forces up and down the country today. There is some risk of duplication but I think one has to avoid that risk. One has to recognise the two roles, as has already been said, and expect a constructive tension between them.

I close by saying once again that I agree with the noble Lord, Lord Carlile, and I am sure that this will not be the last time that I do so.

--- Later in debate ---

I turn to the question of the cost of having two finance officers. As has already been mentioned, forces already have finance directors, so this is not that great a change. I stress here that it is the Government’s intention that each chief finance officer be responsible for their corporation sole for ensuring the proper management of the corporation’s financial affairs. This is the duty that Section 151 of the Local Government Act 1972 places on a local authority, which is extended to all police authorities by Section 112 of the Local Government Finance Act 1988. Therefore, it simply cannot be appropriate for a chief officer to have a discretion as to whether to have a chief finance officer with these important statutory duties. It is necessary for a safeguard to be in place which ensures that if the chief officer were to make, or plan to make, an illegal or unlawful transaction, then the chief finance officer would be bound by the legislation to which I have referred to make a report to the chief officer informing them of their view, and copy this to the accountable authority. In this case, the authority would be the PCC. I therefore respectfully ask that noble Lords who have tabled these amendments consider not pressing them.

[Lord Carlile of Berriew]

Before the Minister sits down—and I apologise for interrupting her—I have been slowly digesting something she said about the making of contracts. I well understand what she said about the Government reconsidering issues about whether chief constables could make contracts, but can she reassure us that there will be no inhibition on the making of contracts required for the best conduct of individual investigations? I am not citing “Cracker” as a good example of what occurs, because it does not occur; but sometimes it is true that one-off forensic science services are required for a particular investigation at short notice. Sometimes one-off accountancy services are required for investigations at short notice, and one can think of many other examples. Can she confirm that the chief officer will be able to purchase those services in such circumstances without having to go through elaborate consultation hoops on contracts?

--- Later in debate ---

[Baroness Hamwee]

My Lords, there is a long list of amendments because there are a lot of issues. I would have been considerably happier if we had been able to unpack this package somewhat. From listening to the Minister’s reply—she has been saddled with this, I accept—it seems to me that some of the provisions are straining to apply to London the model provided for the rest of England and Wales. That feels very awkward and very inappropriate. I cannot see that we will finish the debate about London tonight, so I think that we will have to come back to aspects of it.

On delegation, at one point I referred to that as “trickle-down”, but I think that the Minister’s reply vindicates that description. I have realised, a bit late in the day, that “Delegatus non potest delegare”, as we all say—

[Lord Carlile of Berriew]

We say nothing else.

[Baroness Hamwee]

That is an important principle. I am really troubled that so much of this debate is described as being about delegation, whereas actually it is about getting other people to do a job in a way that, in other businesses, would be quite natural. That is not the same as delegation.

On the term limit, had the Public Bill Office allowed my amendment, it would have addressed all the points that the Minister made. However, the Minister did not address the problem—or, perhaps it would be fairer to say, the question that I asked—which is, “Why is London different in this respect?”.

Let me mention two final issues. The first is about the arrangements that the London Assembly makes and the Government’s insistence on requiring a bespoke committee. The Minister said that this is a matter of practicality. Well, there are practical considerations, but if central government is going to keep out of these things, central government should let the London Assembly work out for itself what the best practical arrangements would be. Frankly, I think that it is a bit paternalistic for central government to say, “You 25 people won’t be able to cope, so let us tell you how best to do it”. It seems to me that certain matters could and would be best handled by a committee, whereas some issues—the budget is obviously one of them—would be matters for the whole Assembly. The Government’s proposal seems an unnecessary intervention.

Finally, on the issue of appointments, although bureaucracy has been blamed, sometimes bureaucracy is a good thing. Actually, the point made is the one raised by the noble Lord, Lord Harris of Haringey, about the lines of connection—I had better avoid words like “accountability”—which I think is the right approach. I do not think that one should be saying that, in the name of avoiding bureaucracy, we will make the process, frankly, rather dodgy.

I am sorry that it must have been quite difficult for those Members of the House who are not directly involved in these matters to have tried to follow the debate, but certain themes have come out. I think that I look forward to—I anticipate with some sort of emotion—discussing these issues further with the Minister, because there are a number of points on which we have now teased out some of the Government’s thinking, which I have found helpful to hear, that we will need to address further. For the moment, I beg leave to withdraw Amendment 51.

Police Reform and Social Responsibility Bill

Lord Carlile of Berriew Excerpts

Wednesday 18th May 2011 Lords Chamber

[Lord Soley]

My Lords, I intervene in what is a difficult situation for the House, as has been recognised on all sides. The Bill, if not holed below the water-line, certainly has a large torpedo gash marginally on the water line. It is worth saying, given some of the comments that have been made from the Government’s side, that the amendment came from a government Member and several government Members supported it in the Lobby, with a number abstaining. Therefore, it would not be wise for the House to make assumptions about what will happen in the House of Commons when it looks at this again.

I draw attention now to something that my noble friend Lady Henig said, which is very important to this debate. She made the point that the structures we are talking about now—this is possibly the point which the Minister will want to address in replying—would imply whether the police and crime commissioner is elected. That makes no difference to the structures that you need to put in place to safeguard police independence. Clause 1(4) states:

“The police and crime commissioner for a police area is to be elected, and hold office, in accordance with Chapter 6”.

I make no secret of my desire; as I said in the previous debate, there is a strong case for separating this Bill by taking out the drugs and alcohol provisions and dealing with them as a separate Bill, and bringing this back in a form that might be more acceptable to the House. Either way, there is a problem about the control of the police. That goes to the heart of the concern on practically all sides of the House. Everybody has expressed the concern that we are in danger of creating a structure in which political control can override police control. That is the fear that underpins so many of the arguments about this. I am pleased to see the noble Lord, Lord Howard, in his place. I well remember him, many years ago in the 1980s, warning the Labour Party about the danger of elected police commissioners. His position seems to have moved considerably since then, but I suspect that underneath it all he has the same concerns.

My noble friend Lady Henig, ably supported as usual by my noble friend Lord Harris with his special knowledge, has indicated that you can build up a structure that will make that political control less likely, regardless of whether the police and crime commissioner is elected or appointed. It is important to note that the term “police and crime commissioner” is referred to throughout the Bill, not just in Part 1. It appears in some of the schedules as well. There is a problem in assuming that there will not be a police and crime commissioner. My assumption is that, whether elected or appointed, the Government want a police and crime commissioner. In that context, I say simply that the amendment moved by my noble friend Lady Henig, supported by other Members of this House who put their names to similar amendments, means that we need a structure that ensures that the police can police without political involvement. That has been an absolutely fundamental principle for this House for many years. We do not want to lose it.

[Lord Carlile of Berriew]

My Lords, the noble Baroness, Lady Henig, has done the House a great service by moving this amendment, which is about good-quality governance. I have a sense of déjà vu about this, which goes back only to yesterday. Yesterday the Government presented us with some proposals that seek to replace something rather odd, which has evolved and works quite well—namely, your Lordships’ House—with something new, the working of which is extremely uncertain. In the proposals in the mere 19 pages of that White Paper, the Government set out what looked to me, after reading it all, like the very elaborate rules of what is bound to be an unsuccessful board game.

It is to be hoped that, if we are to have elected police commissioners and police commissions, we will be able to take the best practice of police authorities and ensure that it is set out, either in statutory form or, if the Government prefer, in some form of code of practice or other clearly designated publication that ensures that good governance occurs.

As the original proposals stand—we have to be realistic and talk about the original proposals because we will certainly return to them in due course—we do not have absolute clarity about the responsibilities of the police commission. Nor do we have absolute clarity about the relationship between the commission, the police and crime panels and the commissioner, let alone the relationship with the chief constable. If we are to reform the governance of the police service so radically, it seems to me that it is the absolute responsibility of the Government and of both Houses of Parliament to provide the police service, and everyone concerned with it, with the clearest possible rules of governance. I urge my noble friend the Minister, whether or not she supports these amendments and the principle behind them, to tell this House that provisions will be introduced which will meet the aspirations of the noble Baroness’s amendments, and will therefore satisfy us that there will be good governance for the police.

--- Later in debate ---

[Lord Howard of Lympne]

My Lords, I rise only because my name was prayed in aid by the noble Lord, Lord Soley. I do not believe for a moment that these amendments are necessary to prevent the commissioner taking control of the police because the Bill in its original form makes it absolutely clear that the operational independence of the police is protected. Therefore, the point made by the noble Lord, Lord Soley, is completely wide of the mark.

However, I was intrigued—since I am on my feet I shall make a further point—by the intervention of the noble Lord, Lord Carlile, and his attempt to draw parallels between the discussions that took place in this House yesterday and the discussions that we are having today. I had assumed that the whole thrust of the proposals which were put forward yesterday emanated from the devotion of the Liberal Democrat Party in particular to the principle of democratic elections. I thought that that was at the heart of the proposals which were put before this House yesterday. However, the fact that a significant number of Liberal Democrats were not prepared to accept the principle of democratic election in respect of police commissioners has resulted in the difficulties which have also been discussed today. That is the most significant and odd lesson to be drawn from the contrast between our discussions yesterday and our discussions today.

[Lord Carlile of Berriew]

I do not want to turn this into a little contest between lawyers but I do not know from where my noble friend derives the assertion that I am in some way opposed to democratic elections. As a lawyer like him, I am in favour of tidy and comprehensible solutions—that is my concern about yesterday—but perhaps we should move on to today.

[Lord Howard of Lympne]

It was the noble Lord who brought yesterday into the discussion in the first place. I did not introduce the subject of yesterday, he did. I just thought that I would point out the beginning of a discrepancy between the approach of the Liberal Democrats to what we were discussing yesterday and the approach of at least some of them to what we are discussing today.