Protection of Freedoms Bill

Lord Goodhart Excerpts

Tuesday 6th December 2011 Lords Chamber

Moved by

[Lord Goodhart]

71A: Before Clause 79, insert the following new Clause—
“Restriction on information provided about rehabilitated offenders
Section 9(3) of the Rehabilitation of Offenders Act 1974 is amended as follows—(a) in paragraph (a) omit “or to another person at the express request of the rehabilitated person”, and(b) in paragraph (b) omit from “or to another person” to “the rehabilitated person””

[Lord Goodhart]

My Lords, we have just heard one of the most remarkable statements that has been made in your Lordships’ House that I can remember since being here. Now it is time to move to much more ordinary amendments.

The amendments in this group are concerned with rehabilitation of offenders. The Rehabilitation of Offenders Act was enacted back in 1974. I have had an interest in this subject because I am, and was in 1974, a member of JUSTICE, the law reform and human rights organisation. JUSTICE supported the Rehabilitation of Offenders Act, particularly through the work of Paul Sieghart, who was then its executive chairman. It managed, after a great deal of effort, to get the Act through the Houses of Parliament.

The Rehabilitation of Offenders Act gives a new chance to people who have been convicted of minor or moderate offences and have not repeated other offences during a reasonable period after their release. This gives them a better chance of getting a decent working job than if they were required to admit their offences to their prospective employers. The Rehabilitation of Offenders Act has been a very obvious success in the 37 years since it was enacted. It can benefit not only potential employers but also other people as well, because ex-prisoners who are unable to obtain a decent job are more likely to revert to crime than those who can get such a job.

Unfortunately, some employers have found a way of getting access to the past record of a rehabilitated person which is technically legal but plainly contrary to the purposes of the Act. The main way in which this happens is through Section 9(3) of the Act, which allows official documents containing full records of the offence to be provided to rehabilitated criminals and also to anyone else at the specific request of the rehabilitated offender. That means that any prospective employer can ask the prospective employee to authorise the official disclosure of his or her record. If the prospective employee authorises the disclosure of the criminal record, he or she is very unlikely to be appointed by the new employer. If the prospective employee refuses to disclose his or her record, then he or she is equally unlikely to be appointed.

This was plainly not what was intended when the Rehabilitation of Offenders Act was introduced, nor was it intended at any time since. The correction of this defect is the purpose of my Amendment 71A. In the course of drafting this amendment, I have consulted the Information Commissioner’s office; I have had a good deal of assistance from that office both in relation to Amendment 71A and to the other amendments in this group. I believe that an amendment to the Protection of Freedoms Bill with the aim of my Amendment 71A would help the Rehabilitation of Offenders Act to continue its work which has, as I said, been very successful.

Turning to the other amendments in my name, I can quickly get away from Amendment 76B, which turns out to be out of date. I believe its objective has already been dealt with and it would not, in any event, have furthered my objective. My aim in Amendment 84, as in Amendment 71A, is to protect rehabilitated offenders from other circumstances in which their criminal record might be disclosed in circumstances which do not require disclosure. The legislation involved in Amendment 84 involves not only this Bill and the Rehabilitation of Offenders Act but also significant amendments to the Police Act 1997 and the Data Protection Act 1998.

Clause 84, which accidentally has the same number as my Amendment 84, changes the numbering but not the operation of the Data Protection Act. It is fair to say that Chapter 2 of Part 5, which will improve Clause 84, improves the situation of rehabilitated persons. However, there is one matter in which further improvement should be made, which concerns Section 112 of the Police Act 1997. The Police Act contains provisions that might make possible delay in the commencement of Section 112 of that Act. This possibility continues under Clause 84 as it now stands. It would however be for the benefit of rehabilitation to bring Section 112 of the Police Act into action. This is made clear in a document published by the Information Commissioner’s Office on the same subject as that of Clause 84, which was circulated since the Bill has come to the House of Lords.

I should like to read a brief paragraph from the circulated document. It states:

“The commencement of section 112 of the Police Act 1997 would be welcome. The Commissioner would also continue to stress the importance of introducing an offence of Enforced Subject Access under section 56 of the Data Protection Act as a matter of urgency. The opportunity to introduce these important and long over due measures should not be missed”.

The form of Amendment 84 may need alteration. Certainly, it would require reconsideration because I had to deal with my amendments extremely quickly and they may not yet be correctly worded. But it is my belief that the desirability of the purpose of my amendments is plain. I hope that the Government will be able to consider including them in their amendments. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend Lord Goodhart for providing the context and thinking behind his amendments. First, I will focus on Amendment 84, which would require that Section 56 of the Data Protection Act 1998 be commenced at most six months after this Bill becomes law, rather than, as now, no earlier than the commencement of various sections of the Police Act 1997.

As my noble friend has indicated, Section 56 of the Data Protection Act makes illegal what is referred to as “enforced subject access”; that is, when someone, in connection with employment or the provision of goods and services, requires a person or a third party to provide them with information about that person’s convictions, which they will have obtained through a subject access request. This means that if the subject of the request has convictions, they are able to obtain all the information that is held by the police themselves, thus making them the subject of the request. This would be made most likely to the police under Section 7 of the Data Protection Act. This loophole allows employers to circumvent the safeguards in the Rehabilitation of Offenders Act and in the criminal records regime to find out details of somebody’s spent convictions.

I agree with my noble friend that enforced subject access is wrong because it allows employers potentially to coerce employees and hinders the rehabilitation of offenders. Section 75 of the Data Protection Act provides that Section 56 of that Act is commenced only once certain sections of the Police Act, including Section 112, are in force. Section 112 of the Police Act makes provision for “basic” criminal record checks which provide details of any unspent convictions. If the section in the Data Protection Act, if it was commenced, would make it illegal for an employer to make an enforced subject access request, Section 112 of the Police Act makes provision for a basic criminal record check. An employer has another legal and legitimate route to find out information about unspent convictions only. He would be provided with information of unspent convictions and not full access to information which may not be relevant.

While Section 112 is in force in Scotland and Northern Ireland, it has not been commenced in England and Wales. The issue is when we introduce basic checks. Noble Lords may have seen the Written Ministerial Statement published this morning in relation to the Government’s response to Mrs Sunita Mason’s review of the criminal records regime. Mrs Mason recommended the introduction of basic checks by the Criminal Records Bureau in England and Wales. As our response to her makes clear, we accept the principle that basic checks should be introduced in England and Wales, but we do not plan to do so through the Criminal Records Bureau at the present time. We are, however, minded to introduce basic certificates in step with the establishment of the Disclosure and Barring Service, but further work is needed on the implications of doing so.

Meanwhile, some individuals already approach Disclosure Scotland for basic certificates and we are discussing the provision of a full service for all those working in England and Wales through Disclosure Scotland while the long-term position is considered. For these reasons it would not be feasible to introduce basic checks through the Criminal Records Bureau to the timetable set out in Amendment 84 in the name of my noble friend. That said, the question of enforced subject access and the commencement of Section 56 is one to which we will return in the context of our discussions with Disclosure Scotland flowing from Sunita Mason’s review. I hope that what I have said provides some reassurance to my noble friend and encourages him not to press his Amendment 84.

As my noble friend has explained, Amendment 71A would amend Section 9 of the Rehabilitation of Offenders Act. Section 9 makes it an offence for a public official to disclose information on spent convictions other than in the course of their public duties. They may do so only to the rehabilitated person or someone whom they reasonably believe to be the rehabilitated person, or to a third party to whom that person expressly requests them to make that disclosure. The noble Lord’s amendments would remove the capacity to disclose the information to a third party. From his explanation today, I understand that the intention behind the amendment is further to safeguard against enforced subject access. However, there are likely to be situations where a person may, quite legitimately and consensually, ask that details of their spent convictions be passed to a third party; for example, a minor requesting disclosure to their parent or guardian or an elderly person requesting disclosure to their carer. We therefore believe that the better approach is simply to commence Section 56 of the Data Protection Act at the appropriate time.

On the basis of that information, I hope that my noble friend has the assurance he is looking for and that he will feel able to withdraw the amendment.

[Lord Goodhart]

My Lords, what the noble Baroness has said is certainly a move in the right direction and that pleases me considerably. I hope that developments of the kind she has suggested will be brought about and that that will be done without undue delay. This is a serious problem, as the statement made by the Information Commission has shown, so I hope that things will go forward. I will withdraw the amendment but I will bring it back again at the Report stage if there is any reason to believe that there is undue delay or a backward movement in what is proposed.

Amendment 71A withdrawn.

Terrorism Prevention and Investigation Measures Bill

Lord Goodhart Excerpts

Tuesday 15th November 2011 Lords Chamber

[Lord Goodhart]

My Lords, I have supported the statements of the noble and learned Lord, Lord Lloyd of Berwick, at Second Reading and in Committee. I will take the same position yet again on Report.

I agree that terrorism is a great threat to the United Kingdom and that steps must be taken to prevent it. I agree that those steps may include civil penalties that restrict the activities of those who are probably involved in terrorism. But there are conditions that should be applied to those requirements and included in this Bill. The most important of those conditions is that the rule of law must be applied and observed. A fundamental rule of the rule of law is that penalties must be imposed only by people who are independent—either judges or, in the case of serious criminal proceedings, by a jury. In particular, the prosecutor should not also be the judge. Under this Bill, that is exactly what happens. The Secretary of State is both the prosecutor and the judge. That is doubly objectionable, not only because the Secretary of State imposes the penalty but because the defendant cannot give his own story in defence of the prosecution being brought against him.

It is true that under Clause 6 the court must give permission to the Secretary of State to impose measures that she has decided to apply. But as is stated by Clause 6(6), the court is applying a judicial review, which is not the same thing as a trial of the evidence. This means that the court cannot, in effect, question evidence supplied by the Secretary of State; it must refuse permission to impose the measures that the Secretary of State proposes, if, as is said in Clause 6(3),

“relevant decisions of the Secretary of State are obviously flawed”.

But what on earth does that mean? To whom must the flaw be obvious? I question the whole concept of something being obviously flawed, when more than one person may well be applied to in deciding whether the flaw is obvious or not. As I said, to whom must the flaw be obvious? Can counsel for a defendant argue that the flaws are obvious? I think probably not but one does not know. The fact is that the court has only a limited power over the imposition proposed by the Secretary of State. It is pretty clear that the court has no power to examine the facts of the case as presented by the Secretary of State.

This simply does not satisfy the rule of law. The rule of law is not wholly inflexible. We accept that, in certain circumstances, it is necessary in the interest of the nation to exclude relevant evidence from the presence of the defendant. But there is no justification for denying the court the right to consider the adequacy of that evidence. If it deals with this matter simply by a review process, that cannot happen.

I refer again to the report of the Joint Committee on Human Rights, published on 19 October. Paragraph 1.6 of the report, which I quoted in Committee on that date, 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”.

That is a statement with which I entirely agree and which I think those who were responsible for drafting this Bill should have taken into account. It does nothing to prevent procedures being taken up against the person who is understood to be involved in terrorism. It does not make the matter seriously more difficult for the Government. I do not think it does at all. The Secretary of State will clearly have come to a view that this person is liable to be prosecuted and made the subject of an order. I believe it is really a matter for the Secretary of State not to impose the measure herself but to present the evidence that she has to the member of the court who is in charge of this. It is for the member, or the members of the court, to take this up.

I will add one reason which might actually encourage the Government to accept the amendments. Having the judgment made by the court on the basis of an application by the Secretary of State—if the judgment is actually made by the court in all respects—would make the situation simpler or cheaper. In particular, since the court would not need to give itself permission to make the order which it wishes to make, the need for a directions hearing under Clause 8 would simply disappear. It would not only be a more justified and proper treatment of the evidence, it would also make it a simpler system for the Government.

[Baroness Hayman]

My Lords, I have added my name to these amendments and, given the speeches of the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Goodhart, I can be relatively brief. I certainly will not challenge them in terms of legal expertise, having ended my legal career with a first degree in 1969, but I feel strongly on this issue because of my own experience as a parliamentarian. I had the honour to be a member of the Privy Council committee chaired by the noble Lord, Lord Newton of Braintree, who I am glad to see in his place, which reviewed the provisions of the Anti-terrorism, Crime and Security Act 2001, particularly Part 4 of that Act, which was considered by us and by many others to be unsatisfactory. The Government paid little heed to the results of that committee’s deliberations until the courts made them do so. We ended up with the 2005 Act, in which I played some part on the duration of control orders, an issue to which we will return, mutatis mutandis, later in today’s Report stage.

I came out of that experience, particularly the experience of the Privy Council review committee, with two clear views. One was that there was a problem that needed to be addressed and that there was some justification for going beyond the normal criminal legal procedures in terms of the threat of terrorism. Some of that was in terms of creating new offences—we saw the offence of “acts preparatory to terrorism” that came out of that review, which I believe has been helpful—but even that was not enough and there was the need, as I think the noble Lord, Lord Goodhart, has just said, for measures that were extraordinary. I do not need convincing on that score.

The other thing that became clear to me was that we should, as legislators, try to make those extraordinary measures deviate as little as humanly possible from the fundamental principles that we normally apply, through the criminal justice system and the whole of our legal processes, to the deprivation of liberty and to constraints upon movement and actions—the fundamental human rights of those living within our country, particularly our citizens. I look at the provisions of the Bill, which I believe are an improvement on control orders—limited but an improvement—and ask myself whether we are deviating as little as humanly possible.

I believe there would be a great improvement, without a balanced increase in risk to security, if we transferred that initial decision on the imposition of such measures from the Secretary of State—the Home Secretary—to the courts. That is the fundamental and simple reason why I support these measures. I was emboldened to do so partly because of the comments made by the chairman of the Privy Council committee, the noble Lord, Lord Newton of Braintree, as I always pay great respect to those who have been my chairs on committees. Perhaps we will hear from him later. However, I remember that, when we were discussing the 2005 Act and talking about analogous issues and the role of the judiciary, one of my colleagues who was not in sympathy with the position that I was taking turned on me and asked, “What’s so special about the judges?”, to which I replied, “They’re not the politicians”. That fundamentally remains my position today, and it is why I added my name and give my support to this group of amendments.

Protection of Freedoms Bill

Lord Goodhart Excerpts

Tuesday 8th November 2011 Lords Chamber

[Lord Goodhart]

My Lords, in recent years we have had a series of Bills that could be described properly as prevention of freedom Bills. We now have a Protection of Freedoms Bill. The Bill is rightly so named. It is an excellent Bill which I strongly support.

Some people—perhaps particularly some leaders of the Labour Party—argue that the Bill goes in the wrong direction or goes too far. Others say that it does not go far enough. I think that the Bill gets it about right. There are undoubtedly matters of detail that can be corrected but broadly it is about right. There are, of course, some simple and obvious provisions that very few people could possibly challenge—for example, Clause 108 which now allows marriages and civic partnerships to be entered into at any time of night or day, although that might meet with the objection of neighbours who did not like a wedding being conducted at midnight.

A number of people claim that parts of the Bill should go further. Examples include, among others, Part 1 on biometric data, Part 3 on powers of entry and vehicles left on land, and Part 4 on counterterrorism. I do not want at this stage to express my own views on matters where I have had little professional experience. This rules out, for example, Part 1 on biometric data. But there are two matters that I want to speak on tonight: some aspects of Chapter 1 of Part 3 on powers of entry and Part 4 dealing with counterterrorism.

Chapter 1 of Part 3 contains many provisions which give rise to Henry VIII powers—powers for the Government to alter or repeal provisions of another Act of Parliament by order rather than by a separate statute. I am interested in these provisions because I am a former chairman of the Delegated Powers Committee which deals in particular with Henry VIII powers. The 20th report of the Delegated Powers Committee dealing with this Bill found that most Henry VIII powers in Clauses 39 to 41 are acceptable. However, it said that another Henry VIII power in Clause 51 is inadequate because the first exercise of that power should be made by the affirmative procedure and not by the negative procedure.

The report on the same subject by the Constitution Committee is critical of Clause 41. However, the validity of the Henry VIII powers is more of a matter for the Delegated Powers Committee than the Constitution Committee. I believe that no modification is needed to Clause 41. What would then be left to be dealt with by way of altering the Henry VIII clause would be a minor change to Clause 51 which would cause no problem to anybody.

Much more important issues arise over Clause 58 of the Bill which deals with a temporary extension of detention in an emergency involving threats of terrorism. The general position in the Bill as is stands is that the maximum time for detention of a terrorist suspect will be 14 days and there will no longer be a power for the Home Secretary to extend the term to 28 days. There will, however, be a power for Parliament to enact one or other of two now-existing draft Bills which will make it possible to extend the period of 14 days in an emergency.

The proposal was, at an early stage, considered by the Joint Committee on the draft Detention of Terrorist Suspects (Temporary Extension) Bills, which has already been mentioned by my noble friend Lord Freeman. I was a member of that committee and I am very glad that our chairman, the noble Lord, Lord Armstrong, will be speaking shortly on the same subject. It became apparent to us in the committee that although very quick action could be taken even when Parliament was in recess, there was a severe problem if there was no Parliament. That would happen from the time when Parliament had been dissolved until a new one had been elected and its Members had taken office. While it is very unlikely that terrorist activities will be launched at such a time, it is obviously not impossible.

Our committee therefore recommended the introduction of what is now basically Clause 58 to make it possible to deal with this problem. Clause 58 has been fiercely attacked by Liberty and less fiercely by Justice, of which I am a former chair. Liberty said:

“Under Clause 58, 28-day pre-charge could potentially be activated by the Home Secretary (with no need for parliamentary approval) whenever she considered it operationally convenient”.

That is absolutely untrue. Justice said:

“We believe extending the maximum period of pre-charge detention in terrorism cases is unlikely ever to be an appropriate response to a public emergency”.

That is true enough as it is unlikely that danger will arise during the short period that occurs only immediately before and immediately after a general election. However, the risk should not be ignored.

I finish with a broad picture of what I think should be done. This is a Bill that almost all of us can support very largely. Many of us would like, in some respects, to go further but our aim, I believe, must be to produce a good result, not necessarily an ideal one. Therefore we need to be careful about the amendments we consider when we are dealing again with the Bill.

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.

--- Later in debate ---

[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.

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.

Police (Detention and Bail) Bill

Lord Goodhart Excerpts

Tuesday 12th July 2011 Lords Chamber

[Baroness Browning]

My Lords, I am grateful to my noble friend for adding that information.

I hope that I have been able to allay some fears that the timeframe needed was a result of the Home Office—or, for that matter, anyone else—being dilatory. Had the judge’s and the initial QC’s advice not both indicated that this was not likely to be as far reaching as it subsequently turned out to be, I might accept some of the criticisms. However, the Government have acted as quickly as possible in the circumstances.

I understand that the GMP did ask the Supreme Court for an early hearing. I gather that it was initially given a date in the autumn and, when pressed, the date was brought forward to July. I will soon come on to some of the points that were made by the noble Lord, Lord Pannick.

I hope that I have satisfied noble Lords about the timeframe and the Government’s intentions with the wider issues that have been spoken to by noble Lords, including particularly my noble friend Lord Thomas of Gresford and the noble Lord, Lord Clinton-Davis, about the need for consultation and a fresh look at bail and its conditions. I can assure the noble Lord, Lord Clinton-Davis, that the Law Society and the Bar Council will, of course, be invited to take part in the consultation. We will make sure that all partners in this matter are fully engaged in the consultation, because I know that they will have a lot to contribute to this.

I am also very grateful to my noble friend Lady Hamwee, who, as ever, brings a very measured response to these matters. We have also heard from the noble Lords, Lord Condon and Lord Dear, who have had many years of experience in policing in this country. I was rather struck by the fact that the noble Lord, Lord Condon, in pointing out the operational difficulties that the police currently have to manage, said that no other court decision has had the scale and magnitude regarding operational policing as the one that is before the House tonight. I say to the noble Lord, Lord Dear, that, again, one of the things that always strikes me, having come from another place to your Lordships’ House in the not too distant past, is that the first-hand experience that noble Lords contribute to these debates is what not only makes them of a very high quality but helps to inform the way in which we legislate and proceed in these very difficult matters.

When the Association of Chief Police Officers presented us with clear evidence of the adverse impact of this judgment on the ability of the police to investigate offences and protect the public by enforcing bail conditions, we had a duty to act as a Government, and I believe we have quickly done so. From the debate, it was evident that your Lordships accept the need for fast-tracking this legislation, for the most part. If anything, this is one of those occasions when, notwithstanding the issues that noble Lords have raised, the House has acted and come together to make some progress and help resolve a very urgent problem.

The House would rightly have been sceptical had we sought to introduce a fast-track Bill on the back of an oral judgment, given that the judge in the Hookway case said at the time that the consequences would not be,

“as severe as might be feared in impeding police investigations in the vast majority of cases”.

We now know that assessment of the operational ramifications of the judgment to be misconceived but, as I explained, that became apparent only after the written judgment on 17 June.

Professor Michael Zander QC has been cited around the House. I understand that Michael Zander is someone whom noble Lords feel confident in citing because of his reputation in the field. I do not want to let go the opportunity to cite him myself. He said:

“The Home Office has been criticized for being a bit slow off the mark. But measured from the date when it received the transcript of the judgment, it dealt with the problem in a little over three weeks—which, as these things go, is not bad going”.

We have all prayed in aid Professor Zander; he sounds a pretty good sort of chap to me. I have not met him, but his judgment is clearly respected on all sides of the House.

[Lord Goodhart]

I have known Professor Zander for 58 years, and my view of him is very high.

[Baroness Browning]

My Lords, I do not doubt that for one moment. I shall cite him as often as possible on behalf of the Home Office.

I turn to the noble Lord, Lord Pannick, who talked about there being no precedent for the fast-track legislation in front of us. There is a precedent for this. A High Court judgment in July 2002 in the case of Hwez and Khadir held that the practice of granting temporary release, subject to restrictions, to people detained under the Immigration Acts was unlawful. The Government legislated to overturn that judgment in Section 67 of the Nationality, Immigration and Asylum Act 2002. Subsection (3) provides:

“This section shall be treated as always having had effect”.

The purpose was to avoid a situation where people subject to immigration controls who do not have leave to remain but who cannot lawfully be detained were left at large without there being any way of keeping track of them. Retrospection avoided the need to reassess the cases of persons on temporary admission on an individual basis.

As a member of the Constitution Committee, the noble Lord, Lord Pannick, has raised issues that replicate some of those that the Constitution Committee raised. I notice that the Constitution Committee may return to the issue after the Bill is enacted and the Supreme Court has heard the appeal by Greater Manchester Police. We will, naturally, consider carefully any further report that comes forward from the committee.

The noble Lord also asked what steps are now taken to ensure that police and public authorities report judgments to central government as soon as possible. There is an assumption there that the Greater Manchester Police should have acted quicker in alerting the Home Office to that judgment. As I pointed out in explaining the timeframe, we were aware and officials were engaged, but under a set of circumstances that was perhaps not quite clear to the House under the legal advice at the time. I do not disagree with the principle of what the noble Lord said. Timeliness is very important; lessons can always be learnt. We need to look forward to see things coming over the hill and not just wait to see what happens, when it is too late. That is my understanding of his question. I hope that I have satisfied him by outlining the timeline, but the general principle of what he asked, which is about the timeliness of information-sharing between agencies and authorities, is important, especially in issues as serious as this. I take his point; I know that, in the Home Office, we will endeavour to ensure that it is not overlooked.

On the question of the Supreme Court, although Mr Justice McCombe gave his judgment orally in May and certified the point of law, it was not possible for police counsel to prepare the appeal papers until the written judgment available on 17 June. As I have explained, an early hearing was requested but 25 July was allocated by the Supreme Court. An early date having been allocated, neither the GMP nor the Home Office believed that there was any prospect of an even earlier date being allocated.

The noble Lord also asked why the Secretary of State did not ask the Attorney-General to hear the case earlier in the public interest. The Secretary of State was made aware that the GMP was appealing to the Supreme Court for an expedited hearing. Subsequently the police also requested that the court stay the effect of the Hookway judgment. The court gave an expedited hearing date of 25 July, which, as I have said, is earlier than the original date. The Home Secretary felt there was no reason to think that government intervention would make that hearing even earlier. That is the case and I do not think that I can add any more to that. Clearly the Home Secretary did not feel it appropriate to approach the Attorney-General because a concession had already been given with the date agreed for the hearing.

Terrorism Act 2000

Lord Goodhart Excerpts

Thursday 8th July 2010 Lords Chamber

[Baroness Neville-Jones]

My Lords, the noble Lord is right in his interpretation. What we have, in effect, are non-statutory guidelines, and the law remains in place. It is not to be ruled out that, should a contingency of an extreme kind arise—and I emphasise “extreme kind”—the Home Secretary would regard it as both right and within her powers to alter the guidelines. It is very important—I come back to this—that we do not put the police in the position of acting illegally.

The noble Lord asked one or two questions about the operation of Section 44 and whether we would regard the use of those powers as appropriate in the case of, for example, hardened targets. That is precisely the kind of issue that we are going to look at—the extent to which, for instance, there may be a very small number of very key sites or very sensitive events, such as the Olympics, where powers of this kind may be appropriate.

The House will forgive me for not wanting to go further than that, because these are the issues that arise out of the situation that we now have. They need careful consideration. We need to consult the police and we need wider consultation. In our discussions with the police, I have had no inkling or suggestion from them that they would regard themselves as impeded in their ability to protect the Houses of Parliament or one or two of the other sensitive sites mentioned. As I say, however, we want to review the powers available for all future contingencies.

[Lord Goodhart]

My Lords, I very much welcome the Statement that my noble friend Lady Neville-Jones has repeated. I also very much welcome the acceptance of the judgment of the European Court of Human Rights. The Liberal Democrats have been critical of Section 44 for a long time—pretty nearly since its original creation. Section 44 has been abused in the past, notably, as some of us may remember, by the arrest of the old gentleman who heckled the platform at a Labour Party conference. It has also been totally ineffective in preventing terrorist activities. No exercise of the powers under Section 44 in any case where there were no obvious grounds for suspicion has disclosed any evidence of terrorist activity. So I think that we will lose nothing by narrowing the effect of Section 44.

The proposals in the Statement are not a long-term solution; as the noble Baroness said, they are an interim solution. The Statement contains no specific changes to the Terrorism Act 2000. It simply contains intended changes in the application of the law. That means that those changes, not being part of any legislation, could be revoked without any reference back to Parliament. Does the Minister agree that it is therefore necessary to proceed with the amendments to the 2000 Act as soon as possible? How far has the review of the counterterrorism laws referred to in the Statement already gone? When is that review likely to be finished, so that it will be possible to take the essential step of altering the provisions of the 2000 Act?

[Baroness Neville-Jones]

My Lords, the counterterrorism review is currently under way. It has not got so far that we have cast in stone our future intentions on Section 44 —indeed, in the light of what has happened, we will accelerate our consideration of it. We hope to bring forward revised legislation on this point in the context of the freedom Bill, and that means the autumn. We do not intend to let interim guidance lie as part of public policy an instant longer than is essential and necessary. I am sure that the House agrees that it is an untidy situation and we need to clear it up as soon as possible.