Terrorism Prevention and Investigation Measures Bill

Lord Desai Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Desai]

My Lords, as the previous two speakers have mentioned the cat, I, too, shall start with that. The cat in question was called Maya, which in Sanskrit means “illusion”. I think that the Home Secretary was under some illusion if she thought that her example of a cat would get her any sympathy for trying to mess about with the ECHR. It is quite right that this Bill is before us, because the ECHR is a problem with which we have to deal and we cannot suddenly invent things which defy it. It is because control orders have been questioned again and again in courts of law that we now have the TPIM.

I am a veteran of the battles of 2005. I slept in the Salisbury Room and was here for all 36 hours of the debate. From what I remember of that time, the problem that we faced, as noble Lords have pointed out, was not only that of discrimination between British citizens and foreigners but the fact that by the time a suicide bomber has committed his crime you cannot prosecute the criminal because he is dead. The question was: can you do something about someone who is planning, but has not committed, an act of terror? I am not a lawyer, so that is the question that I asked. I thought that we had to devise a way of doing something about someone who might be planning an act of terror or who might have a powerful association with such an act. The case for criminal prosecution was too weak but it was recognised that it was urgent that the person be prevented from going any further with his or her plans. That, I believe, was the nub of the problem. As the noble Lord, Lord Macdonald, said, ideally a suspect should be prosecuted under criminal procedures and we should see which way the court goes, but the problem is that the evidence against that person is not solid enough to secure a criminal prosecution. However, if you let him be, there is a possibility that a terrorist act will occur, by which time it will be too late to prosecute him. That is what I see as the dilemma.

In statistics, we have two types of error. One is that you may have a true hypothesis which you may reject by mistake because of the evidence that you have; the other is that you may end up accepting a false hypothesis. You cannot minimise both those possibilities. You can control one possibility and minimise the other. I believe that that is the same problem that we have here. How do you make sure that anyone who is likely to commit a terrorist act does not escape the possibility of being prevented from committing that act, while trying to ensure that someone who is perfectly innocent is not held in his house for 24 hours or whatever? Basically it is a security versus liberty dilemma. I do not believe, as the noble Lord, Lord Howard, said, that there is a definitive answer to this problem but I have always thought that control orders, and now TPIMs, are inadequate for dealing with it. There is absolutely no doubt that they offend against the pure principles of the rule of law, and all these years we have been trying to find something that is near enough to a compromise in dealing with this problem.

I can see that one or two concessions are being made in the Bill. We are going from “suspicion” to “belief”. That is a concession and it gets slightly closer to the norms of the rule of law. Perhaps we should go for the balance of probabilities—there might not be too much harm in that. At the same time, the trade-off seems to be that you not only go from suspicion to belief but you more or less retain control orders but give up the relocation right. I wonder whether there is a better trade-off than that. You keep all the details of control orders, including relocation, but you go from “belief” to “balance of probabilities”. Therefore, you are tougher in deciding to give a suspect a TPIM but you treat him in the same way as you would have treated him under a control order. Either way, the measure will be tested in courts of law and will then have to be modified. As my noble friend Lord Hunt and others have said, the relocation element gave the security services an effective weapon in controlling a likely terrorist. Therefore, perhaps we should retain that and make the test for the Home Secretary much tougher than “belief” by making it “balance of probabilities”. I would understand that trade-off.

I want to say one more thing about the effectiveness of this measure. The noble Lord, Lord Macdonald, who knows much more about this than I do, said that any such procedure is tested by prosecuting the likely terrorist. I think that there is another test of effectiveness but it is very hard to substantiate. By imposing either a control order or a TPIM, the act which the likely terrorist could have committed does not happen, and therefore the effectiveness of the control order or TPIM is very hard to prove. A lot of counterterrorism work is often effective not because it finds terrorists but because it prevents the occurrence of things which could have happened. Therefore, I think that there is an alternative route for measuring effectiveness in this case. This is not a crime like any other; it is a crime which, were it committed, could have serious consequences. We have to try to prevent someone committing a crime which could have serious consequences but, if he has not yet committed it, it might be very difficult to prosecute him. Therefore, there are all those problems.

The Government should make up their mind whether they want to be tough about the effectiveness of TPIMs or control orders. However, they should also be quite demanding about the proof that a Home Secretary has to give in order to make TPIMs admissible, and that is where the idea of balance of probabilities comes in. I think that that would strike a better balance in relation to effectiveness than has been the case so far.

--- Later in debate ---

[Lord Henley]

I will make no guarantee at this stage. I noted that my noble friend Lord Carlile suggested a delay for the Olympics. We will certainly look at that. It is something that I am sure will be argued in Committee. I give no guarantees but it is something that can be looked at. Obviously, it is important to get these things right.

[Lord Desai]

I was in India when the London riots took place. The one fear that everybody expressed was, “What will happen at the Olympics?”. It is very important that, whatever the Government do, they take care over the global anxiety about security in London during the Olympics, and do nothing to give the impression that we are lowering our guard.

[Lord Henley]

My Lords, I can give an assurance to the House, to the noble Lord and to anyone else who reads our debates that the Government take security for the Olympics very seriously indeed. Again, this is a point that we will have to consider further when we get to Committee stage but I note what the noble Lord had to say.

The noble Lords, Lord Goodhart and Lord Pannick, asked whether the TPIMs system should not be made by a judge rather than just judge reviewed. The noble Lord recalled the passage of the 2005 Act, which we all remember. He recalled my late noble friend Lord Kingsland, who at that stage wanted control orders to be made by the judge. I think that I was probably sitting next to him as he made those arguments but I cannot remember the exact outcome other than the fact that the Government got their way in the end and we have all moved on and changed our views on these things. However, we believe that this is a matter of national security and is properly a matter for the Secretary of State. While there obviously should be the appropriate extensive judicial oversight of the Secretary of State’s decision, it should none the less be the responsibility of the Home Secretary and not the High Court to impose these notices. We believe this is consistent with the approach that we have taken in other areas such as in decisions to exclude, deport or deprive citizenship on the basis of national security considerations. However, the TPIMs regime must certainly be subject to very thorough oversight arrangements by the courts. I hope that we have set out just how thorough those will be. As I said, we will continue to argue that case during the passage of the Bill.

As regards the renewal and the review by Parliament, as all noble Lords have reminded us, control orders have been subject to review every year. It was proposed that they should be reviewed every five years. That concession was brought in in another place. We believe that five years strikes the right balance. It will recognise the competence of Parliament—each Parliament will be five years from now on—to scrutinise the Bill and to arrive at a settled position on proportionate and effective powers that are needed to protect the public. It will also allow each new Parliament to review the situation and to consider whether the powers are still needed, and will mirror the length of Parliaments that we now have provided for in the Fixed-term Parliaments Bill. Ending annual renewal will allow the system to operate in a stable and considered way, focusing on protecting the public and striking the right balance with liberty rather than on merely political bickering. If we have the annual debate, I wonder whether, as with some other annual debates that we have, there will be a gradual diminishing in the interest taken in that and whether this is not something that should be left for each new Parliament to decide in due course. As I said, this matter has been raised by a large number of noble Lords on all sides of the House and I am more than happy to consider it again when we get to Committee stage.

My noble friend Lord Howard talked about being a member of the committee of privy counsellors looking at intercept and how he would have liked to use intercept if it were possible but that he was beginning to see the difficulties in so doing. I looked back to the debates in 2005 that the noble and learned Lord, Lord Lloyd, will remember. In those debates it was not Lord Kingsland arguing the point from the opposition Benches but myself. The noble and learned Lord will remember that we had considerable discussions on this matter. I think we all accept that views can change. We are committed to seeking a practical way that will allow the use of intercept evidence in court. That work is under way. My noble friend Lord Howard and others are involved in that. We will report to Parliament in due course. However, as my noble friend made perfectly clear, the issues are difficult and complex. None the less, we believe that a workable scheme could offer clear benefits in terms of enhanced scope to bring the guilty to justice and increased confidence in the justice system.

I wanted to cover those brief points at this stage. I appreciate that noble Lords have raised a large number of other points. I repeat that this has been a very good and useful debate in first airing our views on the Bill. That is exactly what a Second Reading should be. I look forward very much to Committee stage. I hope that we can continue to argue the case in a civilised manner and send the Bill back to another place in as good a state as we can get it. I commend the Bill to the House. I beg to move.