Terrorism Prevention and Investigation Measures Bill

Lord Goodhart Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Hunt of Kings Heath]

Why, then, my Lords, do the Government need a draft emergency Bill? It is because they consider that there may be circumstances in which the current Bill does not meet the security threat. My argument is that if the Government have to contemplate bringing in emergency legislation, it would be better to actually legislate for those provisions and allow Parliament its proper scrutiny rather than, at the time of an emergency or enhanced threat, seek to rush legislation through.

[Lord Goodhart]

Does the noble Lord accept that this deals with a particular problem, which is what is to be done during the period when Parliament does not exist? Surely special arrangements have to be made for dealing with that particular period of time.

[Lord Hunt of Kings Heath]

Then why on earth not put it into the Bill and allow the House to scrutinise and debate it thoroughly?

[Lord Goodhart]

This is something that is supposed to arise during the period when Parliament is dissolved. That is the problem. There is an interval of time, a month or perhaps six weeks, when no Parliament is in existence to deal with these notices. This is a perfectly legitimate provision meant to deal with that situation.

[Lord Hunt of Kings Heath]

My Lords, the noble Lord is a very good debater, particularly when he is defending a really impossible situation. The point is this. We have the Government saying, “Here is our Bill. We are so confident that it will meet the circumstances that we are also preparing an emergency Bill. However, we are not going to let Parliament have full scrutiny of that emergency Bill because we are not going to bring it before Parliament, but just in case we do need it because a threat has arisen during the period of the dissolution of Parliament and the first Queen’s Speech following a general election, we are going to provide in this Bill for the Home Secretary to be able to use it simply by executive diktat”.

We see here the confusion at the heart of the Government’s policy. The reality is that, in opposition, the parties opposite did not like control orders. They have come to power, had the advice and now realise that they need them but are stuck. They have produced the Bill as a way of proving that they are getting rid of control orders but they know that they will need the full panoply of the control regime so are going to have this emergency legislation as well.

A number of Select Committees have commented on the dangers of emergency legislation. First, it is bad constitutional practice. Secondly, the amount of information that will be given to Parliament in respect of an individual case will inevitably be very limited but might have an impact if those cases ever came to court. So this is not the right way to go.

There are of course a number of other features in the Bill and I will not detain the House. No doubt, we will come to the “alternative construct” of the noble Lord, Lord Macdonald, which has been heavily debated by the Joint Committee on Human Rights. We will have a great debate on that. I would be interested in the Minister’s response to the Joint Committee on what are called the Lord Macdonald amendments, in particular on whether the judiciary has been consulted and whether there is deemed to be a risk of replacing Executive decisions—where, ultimately, the Executive is accountable to Parliament—with judicial decisions. The general view of the judiciary on whether it wishes to be drawn into such decisions would be highly relevant.

I have just one other point. Control orders legislation was heavily criticised but it had to be renewed annually by Parliament. As a result of the changes made in the other place, this legislation will only come to be renewed once every five years. This matter is important. It enables extensive Executive powers to be used. Parliament ought to be able to come to a judgment on this on an annual basis.

I hope that the Minister will be prepared to listen to these arguments. Ultimately, this is a bad Bill producing a very fudged situation. I really sympathise with those in the security and police forces who will have to operate in such a difficult and uncertain environment. I hope that the scrutiny that this House will give to the Bill will bring from the Government a willingness to listen, consider and accept constructive amendments. The Bill needs an awful lot of work.

--- Later in debate ---

[Lord Goodhart]

My Lords, as we all know, the Bill replaces the Prevention of Terrorism Act 2005. It substitutes TPIM notices for control orders. Of course, control orders are a highly contentious subject. They have led to a great deal of legislation going before the Supreme Court and before its predecessors in your Lordships' House—two of whom I see in their place this afternoon. Differences between TPIM notices in the Bill and control orders under the 2005 Act are not great. Where they exist, the Bill is in some respects an improvement. For example, under the 2005 Act it was necessary only for the Secretary of State to show reasonable grounds for suspicion that the defendant was or had been involved in terrorism. Under Clause 3 of this Bill, the Secretary of State must reasonably believe that the defendant is or has been involved in terrorism. Of course, belief is a stronger matter than suspicion. Again, under Schedule 1 to this Bill, there is a specific list of all measures that can be imposed on the defendant under the 2005 Act. It is a list of examples but it is not exclusive.

However, this Bill retains the controversial provision in the 2005 Act under which defendants may be excluded from information about the case and may not be allowed to attend the hearing, and must be represented by a special advocate who cannot tell them what is happening in court. Whether this is in breach of human rights is a difficult matter, taking into account decisions of courts that have interpreted the 2005 Act. I am prepared to accept that special proceedings of the kind that happen in this country are not necessarily in breach of human rights, having regard to the decision of the Supreme Court on these issues, though in some cases the Supreme Court, as in the AF case, may come to the conclusion that human rights are not satisfied.

However, there is one matter I want to concentrate on, where this Bill has not gone far enough. This matter was fought over strongly in the debate in your Lordships’ House during the 2005 Act but does not seem to have been taken up during debates on this Bill; that is, whether a control order or a TPIM notice should be imposed by the Secretary of State or by a court. Many Members of your Lordships’ House will remember a debate in March 2005, the final stage of ping-pong of the 2005 Act, which began at 11.30 am on 10 March and ended at about 7.30 pm on 11 March. Anybody who took part in that will be only too reminiscent of it. The amendment proposed by my noble friend Lord Thomas of Gresford, who I am very glad to see here now, and by myself on behalf of the Liberal Democrats, and the late and greatly regretted Lord Kingsland on behalf of the Conservatives, proposed that control orders should be made by judges, not by the Home Secretary, and that the standard of proof should be on the balance of probabilities. I point out that this was the joint view of the Conservatives and my own party and that it was opposed by the Labour Party.

That amendment eventually failed when the Conservatives surrendered, for reasons that I find understandable, but I regret that the Government are not acting now on the principles that both we and the Conservatives pressed for in 2005. The amendment contained two requirements. The second of these—that the balance of probabilities should be a basis for a control order—seems to have been, to some extent, accepted by this Bill, although I am less than satisfied that that is what is actually meant by condition A in Clause 3. The first requirement—that orders restricting activities of defendants should be made by judges and not by Ministers—was refused in 2005 and is being refused again.

The power for Ministers to make TPIM notices is, I believe, a fundamental breach of the rule of law. That is the case even if the courts can set aside, as they could under this Bill, a TPIM notice if they were satisfied, as in Clause 6(7), that the Minister’s notice is “obviously flawed”, whatever that expression may mean.

I will explain why there is a breach of the rule of law. If there is proof beyond reasonable doubt that the defendant has committed an act of terrorism, he will be charged, prosecuted by lawyers and convicted by the judge and jury. Ministers will play no part in this because prosecution and conviction of individuals is not within their duty. This is a central rule of English law but it is not limited to cases which are simply beyond reasonable doubt.

What happens under the 2005 Act, and will happen again if this Bill is passed in its present form, is that the Minister will be responsible for the prosecution and the sentence of those who are believed to be—not proved to be—involved in terrorism. Of course, a TPIM notice is not a criminal sentence but it is quite plainly a civil penalty. The penalties here are severe and are surely a matter for a court to decide and not for a Minister.

The Secretary of State may consider that a penalty should be imposed and begin proceedings for that purpose. But it must be for the court and not for the Secretary of State to decide that a penalty should be imposed. To give the courts the power to cancel the penalty only if they are satisfied that the Secretary of State’s decision to do so is obviously faulty is simply not enough. That is doubly important in a case where the defendant cannot have presented his own case before the penalty was imposed.

In the Bill as it stands, we have an intrusion of Ministers on what should be the powers only of the law and the courts. For centuries, we have been proud in this country about the rule of law. One can only recommend that everybody reads the short book The Rule of Law by the late, great Tom Bingham. This is something that goes back to Magna Carta. But this Bill, like the 2005 Act, breaches the rule of law.