Terrorism Prevention and Investigation Measures Bill

Lord Goodhart Excerpts

Wednesday 19th October 2011 Lords Chamber

I should say a word in conclusion on Amendment 44, also in this group—but no more than a word, given that it speaks for itself. There is much more that I might say but most of it is contained in the excellent report of the Joint Committee on Human Rights, published only this morning in the nick of time. No doubt, the Minister will have that report and will take it well to heart. I beg to move.

[Lord Goodhart]

My Lords, this country has for centuries—going back 800 years to Magna Carta—recognised the rule of law. Part of the rule of law is that those who are tried for crime must be convicted in court by a judge. For a criminal conviction, there must be evidence beyond reasonable doubt that a defendant who is charged with terrorist action cannot be convicted of it if there is reasonable doubt as to his involvement. Under the rule of law, those who are convicted of misconduct short of crime may be subject to civil penalties. I know that terrorism is a terrible crime. I accept that someone who is found to be guilty of terrorism on the balance of probabilities but cannot be held to be guilty beyond reasonable doubt should be subject to civil penalties such as TPIM notices, even though those penalties are very serious.

What I do not accept is that penalties as serious as those imposed under the Prevention of Terrorism Act 2005, or those that are to be imposed under the TPIM Bill, can be imposed by a Secretary of State, who is the prosecutor, without the prior approval of a judge. It is an absolute principle of British law that trials must be fair. I refer to chapter 9 of the late Tom Bingham’s classic book, The Rule of Law. A case where the prosecutor is also the judge cannot be fair, even if a court has a power subsequently to quash the measure if the court finds the application to be obviously flawed—whatever that may mean. It is very far from obvious.

This is doubly the case if, as in this Bill, the defendant does not know what the evidence is against him and cannot therefore provide any evidence to be heard in the process against him. It cannot be fair for someone who is not found by a court to be guilty on the balance of probabilities to have TPIM notices imposed on him. Before a notice can be imposed, there has to be at least a probability of terrorist action. If there is a possibility short of probability, it is surely a matter only for surveillance and not for TPIM notices.

I note with great interest the extremely powerful report of the Joint Committee on Human Rights published this morning at 11 o’clock. I refer to three extracts from that report. Paragraph 1.6 states that,

“the well-established principle is that executive restrictions on liberty are such a radical departure from our common law tradition that they always require prior judicial authorisation after proper legal process. It is for the Government to justify this Bill’s departure from that fundamental principle”.

There is a fundamental principle, and I can see no justification for the departure from it. We, as Members of the House of Lords, should recognise that. Paragraph 1.8 states:

“We also note that Lord Lloyd has tabled amendments to the Bill which have the effect that TPIMs are imposed by the court on the application of the Home Secretary. We support those amendments which in our view replace executive orders with prior judicial authorisation of the kind which both human rights law and our common law constitutional tradition require”.

Surely we all recognise that we in this country recognise as part of our common law what is spelt out in paragraph 1.8.

Finally, before I move elsewhere, paragraph 1.14 states:

“In our view, reasonable belief is too low a threshold for the imposition of such intrusive measures as are envisaged in the TPIMs Bill. The standard should be the balance of probabilities. We support the amendment to clauses 3 and 6 to be moved in Committee by Lord Lloyd, to the effect that the decision of the court as to whether the individual is, or has been involved in terrorism-related activity is to be taken on the civil standard of proof, that is, the balance of probabilities”.

Again, that is a fundamental matter. There must be a balance of probabilities. It is no good saying that this might be probable; there has to be a balance of probabilities. Those whose cases fall short of the balance of probabilities are not to be treated to orders or measures under the TPIM Bill; that is a matter only for study and surveillance.

I completely support what was said by the noble and learned Lord, Lord Lloyd of Berwick. I have known him for many years. He has been one of the outstanding judicial figures in this country in the past 20 or 30 years.

Britain has a great tradition of recognising the rule of law. We are failing that tradition if the proposals made by the Secretary of State do not have to have the full support of a court and may be imposed on people whose actions fall short of the balance of probabilities. In March 2005, during the final stages of the passing of the Prevention of Terrorism Act of that year, the greatly missed Lord Kingsland, leading for the Conservatives, and my noble friend Lord Thomas of Gresford and I, leading for the Liberal Democrats, tried to ensure that control orders could be imposed only by a court. We failed. Six and a half years later, we have a chance to achieve what we failed to achieve then. Let us, in these difficult times, not lose that.

[Lord Morgan]

My Lords, I have attached my name to the amendments and shall speak briefly about them. I am not a lawyer; there are distinguished and learned lawyers in this House. To me it is a simple matter of justice. That is why I support the amendments. That is why I am in the Labour Party. The Labour Party I thought of believes in justice. That is why I am still a member of it, and I look forward to the Labour Party reflecting that outlook in our discussions and votes on this measure. It just seems to me profoundly unjust that someone who is innocent under the law, who is shown to have committed no offence, should be treated procedurally and in his mode of life in this way. It is basically unjust.

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[The Minister of State, Home Office (Lord Henley)]

My Lords, this is a very big group of amendments before the Committee. I thank all noble Lords for their co-operation in agreeing that we should group together such a large number of amendments. However, I am afraid this means—I start with an apology—that I will have to answer this debate at some length because it is important to deal with the various points that have been raised.

The 20th report of the Joint Committee on Human Rights came out at 11 o’clock today, as the noble Lord, Lord Goodhart, reminded us. Obviously, the Government have not had time to consider it in detail. I will respond to a number of the points because the points it makes are similar to those put forward by the noble and learned Lord, Lord Lloyd, in his amendments, which have been supported by others. However, in due course—I hope that will be before we get to Report—the Government will want to make their formal response in the usual way. At this stage I will respond in part but noble Lords will understand that we are keen to give a fuller response in due course. I will endeavour to ensure that that appears before Report but I can give no guarantee at this stage.

I simply do not accept that the TPIM regime is outside the rule of law, as the noble Lord, Lord Goodhart, suggested. This Bill and its predecessor are and have been through the parliamentary process and are subject to review by the courts. To argue that this is beyond the rule of law is unfair and excessive. This large group—

[Lord Goodhart]

My Lords, I am grateful to my noble friend for giving way. That is a misapplication of what I was trying to say. I said that you cannot achieve a rule of law without law, and that involves the right of the law of those who are concerned with it. It is necessary to have law by lawyers in the courts. It does not mean that the decision of the Secretary of State or someone else is therefore to be disregarded; they are both different factors of the same situation.

[Lord Henley]

My Lords, I am sorry if I misunderstood my noble friend; I am a simple soul in these matters. However, my understanding was that he had suggested that this measure was outside the rule of law. What I was trying to get over is that I do not accept that point. The Bill is going through a proper process and after it has been enacted, by the will of Parliament, it will be subject to review by the courts. That is the important point to remember.

The group of amendments before us deal with four major points which I will deal with in order. The first one concerns the very simple point of whether the courts should make these orders rather than the Home Secretary. Secondly, we heard the arguments about where the standard of proof should be. A subsidiary part of that was in the amendments of the noble Lord, Lord Pannick, who said that even if we did not accept the first part—that is, shifting the argument to the courts—the standard of proof for the Home Secretary’s decision should be changed. Thirdly, we heard the arguments of the noble Lord, Lord Pannick, set out in Amendments 42 and 43, dealing with the full merits review. Fourthly, there were arguments about the time limit and how long the TPIM orders should last—whether one year, two years or beyond. I should like to deal at some length with all four points and I hope that I can get them in the right order. Perhaps my notes can assist me in that. It is important that I set out my points.

I should deal first with the proposal for court-paid TPIM notices. I do not agree, as I made clear at Second Reading, that judge-imposed TPIMs represent the right approach for the new regime. I am grateful that on this at least, I have the support of the Opposition Front Bench. They might not like other parts of the Bill but I got the distinct impression that the noble Lord, Lord Rosser, agreed with me on that issue. Our view is that it is appropriate that TPIM notices should be imposed by the Home Secretary. As the noble Lord, Lord Rosser, put it, she is responsible for national security and is best placed to determine what is necessary in the interests of national security, with the benefit of the broader knowledge of the threat picture that sits with her role as Home Secretary.

I emphasise that this is consistent with the approach taken to other executive actions in national security cases, and decisions based on sensitive material. This includes—an example given by my noble friend Lord Carlile—decisions to exclude, deport or deprive people of citizenship on the basis of national security considerations. It is also consistent with the approach taken on decisions to freeze terrorists’ assets—the new legislation which this House approved only last year. It is also consistent with the current provisions under which all control orders have been made.

Noble Lords will appreciate that this is the view not just of the Executive; it is also consistent with views expressed by the courts on the roles properly played by the Home Secretary and the courts in national security matters. The Court of Appeal explicitly recognised in its 2006 judgment, in the case of the Secretary of State for the Home Department and MB, that,

“the Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect”.

In the same judgment, the Court of Appeal also noted that the principle that the courts should pay deference to the Executive on matters relating to state security has long been recognised by the courts in this country, including the Law Lords, and the European Court of Human Rights. This supports the argument that the proper division of responsibilities in the field of national security is for the Home Secretary to make the decisions but for the judiciary to review those decisions, and to review them rigorously, as it always does.

The TPIM Bill provides for extensive, multi-layered court oversight and review of the Home Secretary’s decisions. This includes a requirement for court permission before imposing a TPIM notice, an automatic full review of every case in which a TPIM notice is imposed, and the right of appeal against the Secretary of State’s decisions in relation to, for example, requests to vary the measures imposed or revoke the notice. We think that this apportionment of roles best serves the interests of national security while ensuring that the civil liberties of those who are made subject to TPIM notices are properly protected.

I turn now to the question of the standard of proof. Again, the noble Lord has suggested that his judge-made TPIM notices should be made on the balance of probabilities. The noble Lord, Lord Pannick, offered his alternative in Amendments 42 and 43 by suggesting that the same should be imposed on the Secretary of State, were she to be the one making that decision. Although the approaches are different, the question that we need to raise is the appropriate test for imposing a TPIM notice.

The issue of a proper test for the preventive powers now included in the Bill was carefully considered as part of the counterterrorism review conducted by the Home Secretary and the Home Office. The conclusion reached was that it was right to raise the threshold for imposing a TPIM notice to “reasonable belief” from the test of “reasonable suspicion” required to make a non-derogating control order—which is the only kind that has ever been made. I am grateful to my noble friend Lord Carlile for reminding the House that no derogating orders have been made.

The decision was made as part of that review that the standard should be raised to reasonable belief from the test of reasonable suspicion. We believe that raising the threshold to reasonable belief provides an additional safeguard in the new regime compared to the current control order regime. As we made clear when we announced the outcome of the review in January, it is also consistent with the approach that we have taken to the provisions relating to terrorist asset freezing in the Terrorist Asset-Freezing etc. Act 2010.

The TPIM regime is a preventive regime intended to protect the public from the risk of terrorism. In reaching the decision to move to reasonable belief, we therefore considered whether changing the threshold in that way could put the public at risk. Our conclusion was that it would be unlikely that any of the cases where we would want to impose a TPIM notice would fail to meet the higher test of reasonable belief.

We are therefore satisfied that the change to reasonable belief is unlikely to be prejudicial to national security. At the same time, that represents an increase in the protection for the civil liberties of the individuals concerned. Those favouring the amendment take the view that the threshold should be further raised to “the balance of probabilities”. In that review, we considered that option. However, we concluded that a move to the balance of probabilities for the main TPIM regime would not give us the right balance to ensure that the public will be protected. Again, I stress that it is a question of getting the balance between ensuring the protection of the public and protecting the liberties of individuals.

--- Later in debate ---

[Baroness Hamwee]

My Lords, my noble friend Lord Goodhart has put his name to Amendment 23, partly through his connection with Justice, which he will no doubt mention—the organisation Justice; I am not suggesting that other noble Lords do not have a connection with justice—and because of the intrinsic value of the amendment, which is one that Justice has suggested should be raised.

This amendment would delete a large part of the definition of terrorism-related activity, which came from the 2005 Act, and replace it with the words in my amendment. The current definition is broad and includes the facilitation of,

“the commission, preparation or instigation of acts of terrorism”.

That could embrace, for instance, innocent activities such as selling an ordinary household chemical that, unknown to the seller, is intended for use in bomb-making, or even perhaps acting as a legal representative for a terror suspect. The suggested amendment would restrict the definition to,

“the commission, preparation or instigation of acts of terrorism”,

“conduct … intended to encourage or assist”,

such acts and conduct intended to help,

“individuals … evade … surveillance, investigation, or arrest”.

The extent of the definition of terrorism-related activity has concerned people for some time. Of course, it has to be to defined adequately and appropriately, but I wonder whether we should not now be looking again at a tighter definition, which would not involve risk—that obviously has to be assessed—but that would not be so extensive that it could go well beyond what would be appropriate. I beg to move.

[Lord Goodhart]

My Lords, my name is put to this amendment and while I do not have a great deal to add to it, there is a certain difficulty here about how the existing text of Clause 4 is drafted. Clause 4(1) (b) states:

“conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so”.

In other words, the provision covers somebody who has facilitated the commission, preparation or instigation of such acts but has not intended to do so. That is the possibility. It is perfectly possible, for instance, that someone in a shop may sell something that is, on the face of it and so far as that person knows, entirely harmless. Yet in fact it has a particular use to the person who is buying it. In Clause 4, this is conduct that facilitates the commission of an act of terrorism but that is never intended to do so.

It would be inappropriate to go ahead without some further amendment and the provision in Amendment 23 is perfectly appropriate for this purpose. It deals with,

“conduct which is intended to encourage or assist conduct falling within paragraph (a)”,

or,

“conduct which is intended to assist individuals known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) or (b)”.

That provision seems to cover the effect of Clause 4 a good deal more accurately than its present formation does. It seems to me that it is necessary to change the drafting of Clause 4 and that Amendment 23 is an appropriate way of doing it. It may be that another one can be thought of that is even better.

[Lord Henley]

My Lords, Clause 4, as my noble friends have stated, provides the definition of the phrase,

“Involvement in terrorism-related activity”,

which comes from the 2005 Act. It obviously ought to be read in conjunction with Clause 30, the interpretation clause, which also refers us back, if noble Lords will bear with me, to the Terrorism Act 2000. The starting point of our response to my noble friend’s amendment is that it is unnecessary. The definition of terrorism-related activity included in the Bill is, as I said, identical to the one in the 2005 Act. We consider that to be the appropriate definition and we see no need to change it. It is settled, it has not proved problematic or objectionable and the courts have not, for once, disagreed with the assessment of successive Secretaries of State that individuals whose activity falls under it are committed terrorists.

Moreover, the Government’s approach to this clause is underpinned by other requirements in the Bill. Not only must the Secretary of State consider that the statutory test for the imposition of a TPIM notice is met, including,

“Condition A … that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity”,

but the court must review the Secretary of State's decision. As I said, that scrutiny will be rigorous and, as a result of relevant case law, it makes a finding of fact on the limb of the test relating to involvement in terrorism-related activity. It also gives “intense scrutiny” to the necessity of the notice and individual obligations.

I have looked very carefully at the amendment as set out by my noble friends. I have even produced a copy that I could share with the House, if it was necessary, showing how the clause would look after their amendment had been produced. However, I really do not think that on this occasion it is necessary. It would probably be safer and better to stick with the well-tried words that we have from the 2005 Act, with which the courts themselves have not had any problems, as I said. From the look on the face of the noble and learned Lord, Lord Lloyd, when I first mentioned that point, I certainly noticed a degree of agreement with me. If the courts are happy, I suspect we should leave well alone. I hope, therefore, that my noble friends will feel able to withdraw this amendment.