Police: Stop and Account
Lord Henley Excerpts(12 years, 7 months ago)
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Lord Morris of Handsworth
To ask Her Majesty’s Government what is their response to the conclusions in paragraph 18 of the recent report by the United Nations Committee on the Elimination of Racial Discrimination which criticise the decision by the Home Office to remove the national requirement of the police to record “stop and account” activity.
The Minister of State, Home Office (Lord Henley)
My Lords, the Government do not agree with the committee’s conclusions. Since 7 March 2011, police forces and authorities have been free to decide, in consultation with their local communities, whether to continue monitoring these encounters. These local decisions will ensure the right balance between the necessary paperwork that allows for appropriate public accountability and irrelevant bureaucracy.
Lord Morris of Handsworth
While I thank the Minister for his reply, he will be aware that the decision to record the ethnic composition of people subject to stop and search powers was a key recommendation of the Macpherson report following the murder of Stephen Lawrence. As reported, the requirements for recording these incidents have changed and each police service will now decide whether or not to record stop and account activities. Is the Minister aware that this decision will damage race and community relations and do nothing for police accountability? Further, can the Minister tell the House how the Government will meet the requirements of the UN committee for accurate information when the figures are no longer uniformly collected?
Lord Henley
My Lords, I recognise, as does the noble Lord, that we originally had recording of stop and account following the tragic circumstances relating to the Stephen Lawrence inquiry, but I believe that we have moved on and it is necessary to balance accountability and bureaucracy. It is also necessary to emphasise that there are real potential savings of some 800,000 police hours in not having to record these matters. This should be a matter for each local force and community and that is why, as the noble Lord will be aware, the Met is still recording these after consultation with local communities and the local police authority, whereas other areas do not feel this is necessary. The savings made are very real, and it is a question of getting the balance right.
Lord Dholakia
My Lords, is the Minister aware that all research carried out since 1981 has demonstrated the adverse impact of stop and search on the black community, particularly young blacks? They are the largest group of people stopped and searched, and only about one in 10 searches ever results in some sort of criminal justice process. What system of monitoring will be established to ensure that the law-abiding black community has confidence in the police?
Lord Henley
My Lords, the first point to make is that both stop and search and stop and account are vital tools for the police in deterring crime and combating anti-social behaviour. It is also vital that they must be used as sensitively as possible, as the noble Lord implies in his question. With regards to monitoring, it is vital to get this right. That is why I am very keen to stress the balance between accountability and bureaucracy, given the potential savings to the police in not having to record stop and account and in allowing them to carry on their activities properly without excessive bureaucracy. The police will still record stop and search, but recording stop and account is a matter for local decision-making, and that is why the Met, for example, will continue to record stop and account.
Lord Dubs
My Lords, if the Minister looks at his notes, he will see that stop and search and the issue of ethnic monitoring goes back to at least 1981 following the Brixton riots. Does the Minister have any figures to show the proportion of young black people stopped and searched compared to white people, and if he has not got the figures, will he look them up? I suggest the ratio is between 6:1 and 8:1.
Lord Henley
My Lords, the noble Lord is right to say that this goes back to 1981, but the recording of stop and account came after the Stephen Lawrence inquiry. This Question is directly related to the fact that we will no longer make it compulsory to record stop and account, which I have explained. I do not have at my fingertips the figures that the noble Lord seeks, but I shall write to the noble Lord and make sure that he has them.
Lord Hunt of Kings Heath
The Minister has not answered my noble friend’s original Question, which is how the Government intend to meet the requirement for information from the UN committee. The Minister says that this is about reducing bureaucracy, but does he not agree that this is another signal of the Government seeking to abdicate from responsibility for policing? Since the number of police officers is going down and crime is going up, it is easy to see why the Government want to abdicate their responsibilities.
Lord Henley
The noble Lord is wrong and the UN committee is wrong. There is no need to record this activity, but we have left it open to local police forces to make the decision. There is a correct balance to be struck between accountability and bureaucracy. We do not want to overburden the police, as did the party opposite when it was in power, with excessive bureaucracy that prevents them doing the job that they are supposed to be doing.
Lord West of Spithead
My Lords, the fleet off Cadiz some 206 years ago was completely blind to race, creed or anything like that. With the anniversary of Trafalgar coming up tomorrow, would the Minister be willing to pass the good wishes of our House to our rather battered fleet around the world and perhaps ask his colleague the Secretary of State for Defence to pass a signal to it by recognising that day?
Lord Henley
My Lords, I think that that matter is slightly beyond the Question on the Order Paper. The noble Lord mentioned that the fleet was blind to matters of race at that time; I think that the same was true of the fleet at the time of Trafalgar. We have only to look at the pictures by Daniel Maclise next door in the Royal Gallery to see that very fact. I thank the noble Lord for his intervention, even though it is not strictly relevant to the Question on the Order Paper.
Lord Roberts of Llandudno
My Lords, is it not important that the Government look again at this? I was standing in Oxford Street when the police were stopping and searching young people, and every single one searched was a young black man. This is totally to be deprecated. We must keep tabs on searches of this kind and who is being searched in this way.
Lord Henley
My Lords, as I have made clear, stop and search will continue to be recorded. We are talking about stop and account, which we think is a matter for each individual police force to decide in consultation with their local community.
Terrorism Prevention and Investigation Measures Bill
Lord Henley Excerpts(12 years, 7 months ago)
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Lord Rosser
I said “open to challenge in the media”; I am not sure that is the same as being accountable to the media. On this issue we continue to hold a very different view from that expressed by, among others, the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Morgan.
I appreciate that one of the arguments is that the very system of control orders that we have provokes people who might otherwise have been only minded to commit acts of terrorism actually to do so. I am not aware of the evidence that supports that contention but I am aware that acts of terrorism were committed when there were no control orders in existence and that control orders, which have affected a limited number of people, seem to have been in effect during a period when we have been afforded a fair degree of protection from acts of terrorism, despite the threat level having been either severe or substantial.
I also appreciate that there are concerns over human rights. However, I understand that it is being held that control orders are compliant with the European Convention on Human Rights. As well as the rights of the individual, there are surely issues about the rights of innocent people to be protected from acts of terrorism. As the Minister said at Second Reading:
“It is clear that the current threat from terrorism remains serious and will not diminish in the foreseeable future. It is also clear that in this country there are, and will continue to be, a small number of people who pose a real and immediate terrorist threat but who cannot be successfully prosecuted or deported”.—[Official Report, 5/10/11; col. 1134.]
The current Secretary of State has been prepared to use control orders, including the relocation provision, and has received the clear backing of the courts.
We do not agree with much of this Bill, as we made clear at Second Reading. The Government have already made changes that weaken the current arrangements and risk having an adverse impact on the ability to protect the public from terrorism. We do not agree with these amendments that we are discussing, apart from the thrust of Amendments 42 and 43 tabled by the noble Lord, Lord Pannick, which is why we have given notice of our intention to oppose Clause 9. We wait to see whether the Minister will accept any or all of the amendments, which in our view water down the current arrangements even further.
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.
Lord Pannick
Can the Minister tell the Committee a little more about why the balance of probabilities test would not provide sufficient protection for national security?
Lord Henley
The test that the noble Lord proposes, as is made clear by the Joint Committee on Human Rights report, is a slightly tougher test than what we suggest, which is that of reasonable belief. If there is a slightly tougher test, that obviously implies that there would be a greater risk to security. We have increased the test from reasonable suspicion to reasonable belief. We do not believe that we should increase it any further. I hope that the noble Lord will accept that argument; but I see that he does not, and I give way yet again.
Lord Pannick
I am simply trying to establish whether an assessment was made that a balance of probabilities test would be positively damaging to national security in this country. Was such a conclusion reached?
Lord Henley
I made clear that, as part of that review, we considered moving to that test. I was not in the Home Office at the time, so I do not know what precise consideration was given, but in the end the decision was taken that, yes, we will raise the standard from reasonable suspicion to reasonable belief, but that to take it beyond that would create risks. A decision had to be made on where the appropriate balance should be, and that is why we came down in favour of reasonable belief rather than a balance of probabilities.
I hope that the noble Lord can accept that, but I can see that it is a very difficult one and we will no doubt discuss it in later stages of the Bill. We believe that reasonable belief should deal with the questions raised by the noble Lord. The same applies to his Amendments 42 and 43 when talking about the decision being made by the Home Secretary herself. Again, I noted what my noble friend Lord Faulks had to say on that matter. Possibly they were better words for use with the Home Secretary’s decision rather than when talking about a judicial process. Again, we feel that we have the balance about right.
I turn now to the question raised on the full merits review in the noble Lord’s Amendments 42 and 43, which I mistakenly said were his amendments on the alternative, but that is covered by his Amendment 17, so I correct myself at this stage. His Amendment 42 specifies that a full court review of a TPIM notice under Clause 9 must be “on the merits” and would delete the subsection of that clause which specifies that,
“the court must apply the principles applicable on an application for judicial review”.
As the noble Lord explained, these amendments are designed to ensure that the review of an imposition of a TPIM notice provides a full merits review. He articulated the view of the Constitution Committee—yet another committee that has been looking at this—in its report on the Bill: that it should be clear, on its face, in cases concerning TPIM notices. The function of the court is not limited to ordinary judicial review. Such a constitutionally important matter should not be left for clarification in the Explanatory Notes. Similarly, the noble Lord, Lord Hunt, made it clear that the purpose behind his intention to oppose the question that Clause 9 stand part of the Bill is to facilitate consideration of this same issue.
The Government have been clear that judicial oversight of the process of imposing measures must be a key feature of the new regime. The involvement of the courts is an important safeguard for the rights of the individual, and the Bill takes a comprehensive and multilayered approach to this. As the Explanatory Notes explain, the case law relating to control orders is subject to a particularly intense level of review by the High Court. It is absolutely the case that the Government intend for the same intense level of scrutiny to be applied in court reviews of TPIM notices under Clause 9. All noble Lords will be aware that the courts have not been slow in finding against Home Secretaries of whatever regime for many years in control order litigation, and have used their powers to quash control orders or to give directions to the Secretary of State as appropriate under the current system of judicial review principles, as interpreted by the Court of Appeal in the case of MB.
We are of the view that the courts will apply relevant case law to TPIM proceedings as appropriate. That will, of course, include the case law on the type of review undertaken by the courts in these kinds of cases. In summary, in relation to the full substantive review of each control order, the Court of Appeal ruled again in MB that the High Court must make a finding of fact as to whether the reasonable suspicion limb of the statutory test for imposing a control order is met, and must apply intense scrutiny to the Secretary of State’s decisions on the necessity of each of the obligations imposed under the control order while paying a degree of deference—
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Lord for giving way because it enables me to anticipate the arguments we are going to have later, on whether Clause 9 should stand part of the Bill. He will know that the Opposition have concerns about the Bill, both because we think that it in some ways weakens our ability to prevent terrorism acts, and because we think that it weakens some of the safeguards. I very much agree with the noble Lord, Lord Pannick, on this. Given that the enhanced level of scrutiny has been one of the ways in which we have seen that the control order regime works effectively, I am surprised that the Government are not prepared to accept the spirit of what the Constitution Committee has put forward. I still do not understand why it is not possible to put this in the Bill.
Lord Henley
My Lords, I shall develop those arguments further when we get to Clause 9, which the noble Lord wishes to discuss. Late this evening though it might be, that might be the appropriate time, and I look forward to that in due course.
I shall now move on to the fourth point I want to deal with, which relates to the question of the time limit and how long a TPIM notice can have an effect. The noble and learned Lord, Lord Lloyd, proposes changes to the provision relating to the period for which a TPIM notice can be served. In his model, as I understand it, there would be a requirement for new terrorism-related activity to have taken place while the TPIM notice was in force in order to allow the TPIM notice to be extended into its second year. Again, we do not think that this strikes the right balance—and again, it is “balance” that we want to stress—in the context of preventive orders of this kind. Indeed, it would undermine the Government’s ability to protect the people of this country from a risk of terrorism.
Although we have decided that extension of a TPIM notice for a further year should only be allowed on one occasion—after which new evidence would be required to impose a new TPIM notice—we do not believe that new terrorism-related activity should be required in order to extend the original TPIM notice for that first year. In other words, one could make the original notice for a year, then extend it; but if one wanted to extend it further than those two years, then there must be new activity.
An ongoing necessity for the notice can be made out on the basis of the original terrorism-related activity, particularly where that activity was very serious, suggesting that the individual’s mindset and intention to do serious harm will not have changed after just one year subject to whatever restrictive measures have been imposed in the TPIM order. Indeed, many court judgments in the context of control orders confirm that ongoing necessity, for the purposes of public protection, is not dependent on any new terrorism-related activity since the imposition of the control order.
Although the Government’s view is that TPIM notices should not be used simply to warehouse people for very long periods and should not be imposed indefinitely on the basis of the same evidence—as can happen with control orders at the moment, if the statutory test continues to be met—we do not think that a notice that can only last one year without evidence of new activity while subject to the measures will be sufficient to disrupt the threat posed by the individuals concerned in many cases. Therefore we believe that the right balance—again, I stress “balance”—is this “one year plus one year” approach. It is a balance between protecting the public from persons believed to be engaged in terrorism-related activity and protecting the civil liberties of those individuals. I hope that also answers the point made by the noble Baroness, Lady Hamwee, as to whether one could go beyond two years with a TPIM notice. What I want to stress is that, if one wants to go beyond two years, one has to find some other terrorism-related activity.
I hope that that has dealt with most of the points that have been made in the very useful debate we have had on this large group of amendments at the start of the Committee stage of this Bill. No doubt we will be coming back to all these matters at a later stage of the Bill, just as we will be coming back to them on Clause 9, as the noble Lord, Lord Hunt, has assured us—possibly later on today. I hope that, as I have answered those points, the noble and learned Lord, Lord Lloyd, will feel able to withdraw his amendment, and we can move on with the Committee.
Lord Newton of Braintree
My Lords, having acknowledged on a number of occasions recently my capacity to fall to temptation whenever I am in the Chamber and make some remarks, I am even more tempted on this occasion because I am able to make a remark that, for most of the past six months, my noble friends on the Front Bench thought they would never hear: I support the Government.
Lord Henley
My Lords, as someone who started his ministerial career some 20 years ago sitting at the feet of my noble friend Lord Newton, I am grateful to hear those remarks. I always knew that he was sound, loyal and supportive of the Government in every possible way.
The noble Lord, Lord Hunt, was somewhat disparaging about the Enhanced TPIM Bill and asked why we have it. It obviously indicates that we believe there is a need for bringing in relocation because we have it in the Enhanced TPIM Bill. At Second Reading, I made it very clear that we hoped that we would never have to bring that Bill into force, but I also tried to point out how important it was that we should be able to debate it in a measured manner, which is what pre-legislative scrutiny will allow for, when the threat was not as high as it might be when and should we have to bring it in. That might be a better way to proceed than to debate it in moments of crisis and rush it straight off the shelves while minds are not necessarily as settled as they should be.
Lord Hunt of Kings Heath
Does not the noble Lord, Lord Carlile, propose an even better way? Essentially, he is saying, first, let us get over the Olympic-year problem by allowing the Government to have use of this power in this Bill. We are able to scrutinise it properly and if at some point in the future the Government are able to conclude that they no longer need it they can bring an order before Parliament. If I were sitting in the Minister’s place, I would be very grateful to the noble Lord, Lord Carlile, because it is a very helpful amendment.
Lord Henley
My Lords, I note what the noble Lord says, but I do not accept that. The power might be necessary in the future; that is why we have brought the Draft Enhanced TPIM Bill to the House and why the House will have its chance for pre-legislative scrutiny. We hope that we will not need to bring it into effect. However, we might have to bring it into effect at a time when Parliament is not sitting, which Clauses 26 and 27 allow us to do. As was made clear by the noble Lords, Lord Pannick, Lord Macdonald of River Glaven and others, it is question of getting the balance right. I am glad that the noble Lord, Lord Pannick, repeatedly stressed the word “balance” because it is all about balance.
Perhaps I may say a little more about how we reached this decision and where we think we are. The Committee will be aware that relocation has been of particular interest during the passage of the Bill both in another place and here and strong views, as we have heard today, have been expressed on all sides. No one disputes the very powerful disruptive effect that relocation of an individual to another part of the country can have on their involvement in terrorism-related activity. Equally, as, again, the noble Lord, Lord Pannick, made clear, it can have a very powerful effect on the individual and his family likewise. So such a power raises very difficult questions of proportionality, including in relation to the impact that it can have both on the individual and their family. The counterterrorism and security powers review acknowledged these difficult questions and considered them very carefully.
As was made clear following that review, the Government concluded that it should not routinely be possible under the TPIM system to require an individual to relocate without consent to another part of the UK. Debates on the issue, as, again, has been made clear, frequently turn on that question of balance, specifically between protection of individual liberty and security for the wider population. Views on where the right balance might be understandably differ in different parts and, dare I say it, on all sides of the House—not many noble friends of the noble Lord, Lord Hunt, have intervened, but I am sure that he would find that there are one or two on the Benches behind him who do not agree with everything that the Opposition have had to say. As the noble Lord will be aware, the former Government took the view that compulsory relocation was necessary as one of the wide range of potential obligations under the control order provisions. That was a perfectly legitimate position, and my right honourable friend the Home Secretary has used the power to relocate on a number occasions when she has imposed control orders.
However, the coalition Government do not think that this is the only approach that can be taken. Our conclusion, as we made clear in January, is that a more focused use of the restrictions that will be available under the TPIM Bill, together with—it is important to remember this and I am grateful that the noble Lord, Lord Pannick, reminded us of it—the significantly increased funding that we are providing for covert investigation and other measures, will allow us effectively to protect the public without the need for this potentially very intrusive power to be routinely available. That is where our approach differs from that taken by both my noble friend and the Opposition in their amendments.
Baroness Hamwee
My Lords, I think I heard the Minister refer—I hope I did—to plans for resources for the security services over a period which is longer than to the end of next year. If that is so, I welcome it. At the end of his speech he referred to the next four years. I welcome this because it would not be proper for this Chamber—most noble Lords not being privy to security information—to take a view as to what is required for up to the end of next year and it being something different beyond that. I am not trying to give my noble friend ammunition in favour of his argument but simply to put my concern that we should not be looking at the matter through that lens.
Lord Henley
My Lords, one is always very careful when one speaks on these matters with a Treasury Minister sitting at one’s side. However, I can give an assurance to my noble friend that we have agreed extra resources for the Security Service over the next four-year period.
Lord Carlile of Berriew
My Lords, I am grateful to the Minister for his careful answer to this short debate. I regret that he has not answered any of my six questions and I invite him to write to me with answers to each of those quite specific questions. I regard the emergency legislation model provided in the Bill as a deeply dysfunctional form of legislation. It will be very difficult to bring into force, involving parliamentary debates that are almost impossible to construct in a way that is neither in contempt of court nor breaks the sub judice rule.
I of course welcome surveillance, whether over a short or long period, being enhanced by the provision of extra personnel and additional technical facilities. However, I say to the Minister, to my noble friend Lady Hamwee and to the House that it is much more easily said than done operationally. Many of the individuals against whom this kind of surveillance is deployed are very intuitive about surveillance provisions and often live in places where it is virtually impossible for the police to deploy the full range of surveillance facilities. That is one of the reasons why relocation has been a useful and proportionate measure.
However, at this stage it would not be right to press the matter to a Division—I have the perhaps over-optimistic feeling that common sense at some stage will prevail—and therefore I beg leave to withdraw the amendment, with the purpose of returning to this matter at a later stage.
Lord Henley
I hope I can give my noble friend the appropriate assurances. I will just touch on the individual amendments one by one, before coming to the generality.
My noble friend’s first concern was whether the requirement to remain overnight at a specified residence for specified hours would be exercised in a way that is consistent with the ability to work. We have made it perfectly clear that the new provisions are intended to be compatible with work and study, provided these do not affect public safety. We are certainly clear that an overnight residence measure will allow an individual to work, since the hours involved will not equate to the lengthy curfew that was possible. The specified hours will also be able to take account of work commitments where appropriate, and that could include early morning or early evening shift patterns. The necessity and proportionality of each measure, including each overnight residence requirement, will be determined according to the circumstances of each individual case. The occupancy rules that may be imposed in instances where the Secretary of State provides an individual with accommodation will in essence be those that would normally apply to an individual in private rented accommodation; in other words, a standard letting agreement.
The noble Baroness has a whole list of amendments. She wants to be sure that the connection with the area an individual is sent to is substantial. I can give her that assurance from the Dispatch Box. I do not think the word is necessary but obviously we would not send, as in the example she gave, a person to the Yorkshire Dales merely because they had once visited one individual there. Yes, it has to be substantial. Wherever she uses the word “reasonable”, again, we would want to ensure that “reasonable” was understood to be part of the Secretary of State’s decision.
The noble Baroness touched on the police reporting requirement. It is always the case that, where such a requirement is in place, the Secretary of State will have to act reasonably in terms of the times and manner associated with the requirement to attend a police station. Changes can be made to take account of a new job or other changes in that individual’s lifestyle. Amendment 12 touches on the idea of being able to return travel documents to the individual; for example, something like a Freedom Pass. Obviously asking for the surrender of a passport might be very necessary and obviously we would want to keep that, but I can see occasions where it might be reasonable to allow the return of something of the order of a Freedom Pass. If I am wrong in that matter, I will write to the noble Baroness.
I understand the noble Baroness’s general concerns about the lack of the use of the word “reasonable”, but I can give the assurance that it is fundamental to administrative law that the Secretary of State, or any other public body, behaves reasonably when taking decisions in any capacity. That will certainly apply to the Home Secretary in exercising her powers under this Bill, as much as it does to any other Minister or public authority taking decisions in an entirely different context. Indeed, it is a requirement under Section 6 of the Human Rights Act that public authorities—that obviously includes the Home Secretary—act compatibly with convention rights. So there is the additional requirement that any interferences with individuals’ convention rights are not only reasonable but proportionate. If the Secretary of State fails to act reasonably and proportionately in imposing measures under a TPIM notice, obviously her decisions can be challenged and potentially overturned in the courts.
Noble Lords will be aware that Clause 3 of the Bill provides that each of the measures imposed by the Secretary of State must be reasonably considered by her to be necessary to prevent or restrict the individual’s involvement in terrorism-related activity. Clause 9, which we will return to in due course, provides that the court must review that decision, among others, by the Secretary of State and that the court may quash or give directions in relation to any measures imposed where it is not satisfied with the Secretary of State’s decision-making, including where she has acted unreasonably or disproportionately. Therefore, my noble friend’s amendments are unnecessary as their effect will be achieved without it being necessary to amend the Bill, and I hope she will feel able to withdraw them.
Baroness Hamwee
My Lords, I will certainly do so. I am very grateful to the Minister. Perhaps he is able to comment on two particular matters. First—and I am sorry, this is almost like trying to prove a negative—can he say how substantial or significant a connection there needs to be in requiring somebody to live at a particular residence? This may be something that you recognise when you see it so I may be asking him a question that cannot be answered in the abstract. I was obviously grateful for his response to my rather extreme example. I do not know whether it is possible to answer what is required.
Secondly, on reporting, I am sure that the Secretary of State would be reasonable; I am much less sure that officers on the ground at particular police stations will be quite as reasonable. Is the Minister able to help the Committee as to the role of the Secretary of State and the comparative role of those officers and whether, though the Secretary of State’s intentions are entirely reasonable—I use the word again—it may be possible on the ground locally for them to be distorted and life made close to impossible for the individual because an officer in a particular police station decides on what is actually an unreasonable time, for their convenience? Of course I take the point about being able to challenge through the courts but there is a limit to how many challenges there can be. This is the sort of thing that we should be able to sort out, if not to everybody’s satisfaction, then by at least answering their points, without having to go down that sort of route.
Lord Henley
The noble Baroness probably answered her own question, at least the first one, on what would be substantial. It is similar to the fact that we have put in “overnight” but have not defined what “overnight” is. We all know what “overnight” means; what we are saying is that we do not want that 16-hour curfew, we want people to be able to have a job, should that be necessary, but we need not be specific. This is where the reasonableness of the Secretary of State’s decision comes in. Similarly with the connection: obviously that connection is not just going to be that you have been on a day trip to Blackpool or went to the party conference there many years ago.
Lord Henley
We had better not comment on Blackpool. I suspect the noble Baroness probably understands what I am getting at and I hope the House will.
Secondly, regarding how the police act, the requirements will be set out in the TPIM notice and in that the Secretary of State obviously will have acted reasonably and set out what are reasonable requirements. It is then a matter for the police to make sure, if there is a reporting requirement, that they interpret that in the proper manner. Obviously if they do not, they will be in breach of whatever appropriate duty of care they have. Therefore, I hope that they will take notice of what that order says. I hope with that the noble Baroness will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I do not expect a response from the Minister, but I will use this last opportunity to encourage the Secretary of State, in imposing reporting restrictions, to make the sort of considerations that I have referred to entirely clear rather than just leaving them to be implied. If the Secretary of State can make that sort of thing express rather than implied, it could be a very sensible move. However, having said that, I beg leave to withdraw the amendment.
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.
Baroness Hamwee
My Lords, my concern stems from the possible prospect of a less benign Home Secretary, who may misuse the clause. He—let us say he—might believe that an individual has been involved in terrorism-related activity because he, to use the example that we have given, has sold household chemicals that are to be used for something bad. I suspect that the courts have never had to face the position that I am putting forward and so have not been troubled by it. As ever, one tries to anticipate how legislation might be misused or abused, rather than used in what we would all regard as a proper fashion. However, I hear what my noble friend has said and beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, Amendment 26 is grouped with Amendments 45 and 46, which also stand in my name. We touched on this matter when I asked the Minister a question about the length of TPIMs earlier this afternoon. I thank him for his response. Nevertheless, in case there is anything more to come out on this, I will speak to these amendments.
Amendment 26 to Clause 6 would provide that Clause 6(1), which makes the rest of the clause apply, extends to extensions, variations and revivals of a TPIM notice. As I said earlier, I had difficulty in following the procedures for the different decisions which are open to the Secretary of State. Therefore, I thought it best not to be too proud about my drafting as I do not have a professional reputation to be concerned about to the extent that other noble Lords who are very well established in their fields do. That is why I tabled that amendment.
Amendments 45 and 46, which seek to amend Clause 13, may already have been answered to an extent in the previous debate. Amendment 45 would provide that condition E—that is, the involvement of the court—would apply on revival of a TPIM. I am encouraged to think that a stopping or pausing of a TPIM might be possible—that is implied by the possibility of reviving one—but that this measure would apply after a TPIM had expired or been revoked. I hope to be told that this is provided elsewhere in the Bill. If it is not, it should apply. If a TPIM notice has expired or been revoked—no doubt, for good reason—all the conditions should then be tested again. I beg to move.
Lord Henley
My Lords, we seem to be moving at quite a speed. My noble friend need not worry too much about her drafting. We have all drafted amendments in the past that we knew were defective in many ways but they are often a useful way of getting the Government to the Dispatch Box to explain what is going on. It is worth going into detail on this issue.
I will deal first with the substantive amendment that the noble Baroness has proposed to Clause 6—to which Amendment 45 is consequential. As drafted, the Bill requires the Secretary of State to seek prior court permission to impose a TPIM notice, other than where the urgency procedure set out in Schedule 2 is relied on. This provides an important safeguard in relation to the initial imposition of TPIM notices by the Secretary of State. However, as my noble friend has identified, there is no subsequent requirement for the Secretary of State to seek the court’s prior permission before making any other decision in respect of the TPIM notice. Her amendment would require the Secretary of State to seek prior permission before making three particular decisions. The first is to extend a notice into a second year under Clause 5. The second is to vary the specified measures, on the grounds that this is necessary for preventing or restricting involvement in terrorism-related activity under Clause 12—that is, where the variation is not a reduction in the measures or one made with the consent of the individual. The third is a proposed revival of a TPIM notice under Clause 13. The Bill does not require court permission to take any of these decisions. However, it provides a right of appeal against the exercise of each of these powers.
Lord Rosser
My Lords, the amendments of the noble Lord, Lord Pannick, which, as he said, are supported by the recent Joint Committee on Human Rights report, require the provision of information to the individual on whom the measures under the Bill are imposed, to enable that individual at the review hearing to give effective instructions to his or her representatives and to the special advocate about the allegations made against them.
In considering this issue, we are also considering national security. We are conscious of the need to protect people from further atrocities of the kind we have already seen in this country and elsewhere. We are talking about a small number of people whose activities are felt to pose a real threat to the public, but in respect of whom sufficient hard evidence cannot be put before a court in the public domain to enable a case to be made to the standard that has to be achieved for a successful prosecution.
We would not dissent from the provision of information to the individual, provided that it did not lead to the safety or security of any providers or sources of information being put at risk; provided that it did not mean that intelligence provided—perhaps from other countries—dried up, because that intelligence is provided only on the basis that it is not made public; and provided that the provision of the information did not jeopardise national security, including protection from acts of terrorism.
The chairman of the Joint Committee on Human Rights stated:
“We maintain our view that the priority in the Bill should be investigation and not prevention”.
We certainly support the view that investigation is important and that, where possible, people should be charged and their case dealt with through the courts in the normal way. However, we do not support the view that the Bill should have prevention of acts of terrorism as an issue of lesser importance. We will want to be satisfied that the effect of the amendments would not be to veer in that direction. We await with interest to hear the Government's position, particularly in the light of the House of Lords judgment in AF.
Lord Henley
My Lords, the noble Lord, Lord Pannick, asked two questions: first, do we accept that the AF principle applies to TPIMs as well as to control orders? I can give him that assurance. It is set out in our Explanatory Notes that we believe that previous court judgments will be binding on TPIMs, as they were on control orders. I do not have the ability to cite cases as authoritatively as my noble friend Lord Carlile or the noble Lord, Lord Pannick, both of whom obviously eat them for breakfast, but my understanding is that they will continue to bind us.
The second question is: do we think that it is necessary to get it on the face of the Bill? I hope that I can explain to the noble Lord why I do not think that that is necessary. We share the desire of all noble Lords to ensure that TPIM proceedings are compatible with Article 6 and we believe that the provisions currently contained in the Bill achieve that. As we explained in our response to the Joint Committee on Human Rights in its 19 July report—I think that today’s was its third report on this issue—the right to a fair trial of individuals subject to a TPIM notice is already fully protected by the provisions contained in the TPIM Bill and the application of existing case law, as appropriate, by the courts.
Paragraph 5 of Schedule 4 to the Bill reflects the read down of the Prevention of Terrorism Act 2005, effected by the 2007 judgment of the Law Lords in MB. As the noble Lord will be aware, the Law Lords read into that legislation, which obliged the courts to ensure the withholding of material from the individual where disclosure would be contrary to public interest, the words,
“except where to do so would be incompatible with the right of the controlled person to a fair trial”.
That has been reflected in the provision in paragraph 5 of Schedule 4 to the TPIM Bill, which provides that nothing in the rule-making power relating to closed proceedings or the rules of court made under it is to be read as requiring the court to act in a manner inconsistent with Article 6. The Law Lords in AF (No.3) confirmed the read down specified in MB and laid down what was required by Article 6 in the context of the stringent control orders before them. There is therefore already provision in the Bill which ensures that TPIM proceedings will be conducted compatibly with the individual’s Article 6 rights and, indeed, the Human Rights Act achieves the same effect.
That is all that I want to say at this stage to the noble Lord’s amendment. I appreciate that technically we are debating the amendment to the amendment tabled by my noble friend Lady Hamwee. It might be more appropriate for the noble Lord, Lord Pannick, to comment on that. I hope that he will accept my explanation on why we do not think it is necessary to include his amendment. I hope that the assurances that I have given from the Dispatch Box will be sufficient. I hope that my noble friend and then the noble Lord will withdraw their amendments.
Lord Henley
My Lords, I wish to make only one point. I said at the beginning of business that I had only recently seen the Joint Committee’s report, which was published at 11 am today, and I had not yet read it in detail. The noble Lord seemed to imply that I would have managed to read it during the course of this debate. For once, I thought it was more important to listen to the noble Lord, and other noble Lords, rather than reading the book. Of course, we will study the report in detail, and it might be that a further response can come between now and Report. I do not think that, as the noble Lord put it, our thoughts have advanced much during the previous two or three hours.
Lord Hunt of Kings Heath
My Lords, the noble Lord, who manages to make marmalade as well as being a senior Minister in this Government, is clearly multitasked and multiskilled. I had thought he would easily have been able to read it while considering how to reply to noble Lords, and indeed noble and learned Lords, in our debate. That has been, as usual, an enlightening response from the noble Lord. I will not oppose that this clause stand part of the Bill.
Baroness Hamwee
My Lords, I beg to move Amendment 47, and will speak also to Amendments 48 and 51.
Amendment 47 concerns paragraph 1 of Schedule 3, which deals with appeals against convictions for breaches of measures. My amendment is to enable me to ask the Minister why appeals are limited in this way. A breach of a measure may turn into a criminal offence, but that is a separate matter from the measure itself. If an individual is convicted of that breach, there are consequences for the future, as there are with every criminal offence.
The Minister may say that the measure itself will have consequences. Of course it will. That is executive action without a criminal standard of proof, and so on, as we have discussed. The consequences will be social consequences, in a wider sense. If there is a conviction for a breach, that has other consequences, because of the record of the individual. Therefore, Amendment 47 is to ask the Government to explain the thinking behind that paragraph.
Amendment 48 would take out subsections (1) and (2) to Clause 18. These are about appeals against the measure, and again the amendment is to enable me to ask questions. Clause 18(1) says that there may be an appeal only on a question of law. I would be grateful if the Minister could help the Committee on how one distinguishes between fact and law in this context. How does this apply not just to the decision that there should be a TPIM order but to the detail of the measure? Is proportionality, which we have been talking about quite a lot, a matter of law? I hope to be told that it is.
My final amendment in the group is Amendment 51, which relates to Clause 19. Clause 19 provides for the Secretary of State to make three-monthly reports to Parliament, which is welcome. Clause 19(2)(a) provides that this includes and extends to the powers of a Secretary of State “to impose measures”. I am suggesting that we should add wording that makes it clear that this covers not just the fact that a TPIM order has been imposed but the detail of the measures within that TPIM order. I appreciate that it would not be proper to put every detail into the public domain. However, I do think it would be proper for the Secretary of State to spell out the sort of thing that she is doing, so that we may understand—better than we can if we are simply told that measures are being applied—just what the impact of those measures may be. I beg to move.
Lord Henley
I hope I can answer the noble Baroness’s three points on these three separate amendments, which we are taking together. I shall start with Amendment 47, which deals with Schedule 3. As the noble Baroness is aware, Schedule 3 provides that an individual who has been convicted of the offence contained in Clause 23 of the Bill—contravening, without reasonable excuse, a measure imposed under a terrorism prevention and investigation measures notice—has a right of appeal against that conviction if the notice or relevant measure is subsequently quashed, and if they could not have been convicted had the quashing occurred before they were prosecuted. Schedule 3 provides that the court must allow such appeals. This is obviously not a provision that we expect to be used on a frequent basis. However, its clear purpose is to provide an important safeguard, and to ensure that the person will be able to get a conviction overturned for contravening a measure that the court has subsequently quashed.
It is therefore important that the schedule be agreed to. I know that the noble Baroness is only suggesting removing paragraph 1, but that is the operative provision of the schedule, and without it the remainder of the provisions in the schedule are neutered. I hope she therefore accepts my explanation and can withdraw that particular amendment.
Amendment 48 deals with subsections (1) and (2) of Clause 18 and is really a question about why we are considering having appeals only on a point of law. We believe that the limitation is appropriate, because in cases such as this it is the court of first instance that is the appropriate fact-finding body. It is this court that has developed a particular expertise and body of knowledge in this area of national security, among a small and experienced body of judges who hear these cases. This makes it the right court to review all the material upon which the Secretary of State relies to make her decisions and make findings on that basis.
With regard to the appeal on a point of law, the noble Baroness asked us whether we thought proportionality would be a point of law. Dare I say it—I might have to be corrected—but I think she is probably correct, and it probably would be. If I am wrong, I will correct that in due course. I will certainly write to her and copy that letter to other noble Lords who have taken an interest in these matters.
Finally, I turn to Amendment 51, which deals with Clause 19. Clause 19, as the noble Baroness is well aware, places a duty on the Secretary of State to report to Parliament on a quarterly basis on the exercise of her powers under this Bill. These are specifically the powers to impose measures on a person by TPIM notice, extend a TPIM notice, vary the measures specified in a TPIM notice, and revoke or revive a TPIM notice.
Amendment 51 would amend Clause 19(2)(a) to add “and the measures imposed” at the end of the subsection. The relevant provision would thus state that the requirement was for the Secretary of State to report on her powers to impose measures on an individual via a TPIM notice under Section 2, and the measures imposed. As noble Lords will appreciate, the details of the operation of the system and the particular cases will necessarily be sensitive and could not be disclosed publicly. However, taken together, the list of matters on which the Secretary of State must report ensures that key information about the operation of the system will be in the public domain, and will be debated regularly. Crucially, this will include information about the extent of the Secretary of State’s use of her powers and the number of cases in which measures are imposed.
We understand that there is interest in as much information as possible being made available about the operation of the system and about the cases of those individuals subject to the measures. That has certainly been the case in relation to control orders and it is likely to continue in relation to TPIMs. Having that information available will help to ensure that any debate about the powers is as informed as possible.
Lord Hunt of Kings Heath
Perhaps I may ask a question about that. The Minister said that the report laid by the Secretary of State would be as comprehensive as possible within the constraints of the information that she can make available. He then said that that could be regularly debated. As your Lordships know, there is a debate to be had next week on annual orders as opposed to a system of parliamentary scrutiny every five years. Does the Minister envisage other ways in which such information can be debated in Parliament?
Lord Henley
The ingenuity of the noble Lord and others will find ways in which this House, which seems to have a more liberal approach in these matters, can debate these quarterly reports. There are Questions, Questions for Short Debate and all range of things, but it is not necessarily for the Government to offer those. As regards the debate next week, I look forward to it.
I hope that that deals with the points made by my noble friend. If not, perhaps we can discuss it further in due course, but I hope that today she will feel able to withdraw her amendments.
Baroness Hamwee
My Lords, I am grateful for the reassurance on my Amendment 49, which takes a stand on a question of law in this context, and I hope that the Minister and I are correct. On Amendment 51, I accept the sensitivity of the detail, which I acknowledged in introducing the amendment. However, I remain concerned that the type and extent of the measures being imposed are reported on. The clause is welcome and I want to make it work well for Parliament and others in the transparency for which we are all aiming. I might therefore like to take the opportunity to discuss with the Minister how one can meet the point without going over the top, which I am not trying to do. I beg leave to withdraw the amendment.
Lord Carlile of Berriew
My Lords, I applaud and support the sentiment behind my noble friend's amendment, but I suggest that it is not only unnecessary but would replace a considerable amount of flexibility with something rather less. On the case history that she has just recounted, I say that nobody has been arrested and charged with breach of a control order for failing to turn up at a police station once, an hour late. In every case, there has been an immense degree of tolerance before anyone has been charged. It is only after a very serious breach, or persistent and repeated breaches, that people are charged.
Nor do I recognise the credibility of the account my noble friend was given. When I was the independent reviewer of terrorism legislation, on a relatively small number of occasions—but several—I was able to visit controlees in their own homes, alone, one to one. On some occasions I visited them in homes to which they had been relocated. The notion of a state-appointed psychiatrist, however independent, turning up unsolicited at their home would have been no more comforting than One Day in the Life of Ivan Denisovich. It is a pretty bad idea.
I ask the Minister to confirm that the following occurs and will occur. First, where there is any suspicion or indication of the poor mental health of the controlee or of any member of his or her family, medical facilities will be put in place, including, if necessary, psychiatrists and psychologists, to deal with the problem; and that such facilities will be flexible and will be provided at the cost of the Home Office. Secondly, will the Minister confirm that the Control Order Review Group has met regularly ever since control orders were brought in, that it includes various people involved in scrutinising and observing the person concerned, and that it has always discussed such issues where they have arisen? Will he further confirm that under TPIMs, some kind of review group—I hope it will not be called TPIMsORG —will continue to meet and carry out that function? There is no evidence whatever that controlees have been treated improperly in the way that my noble friend set out.
On one occasion I suggested to the Home Office that there were some difficulties from time to time in giving controlees a single point of contact—perhaps a local police officer—who was aware of the situation and whom they could telephone if they had a problem. I believe that that has been put right, that they do all have someone to contact, and that sympathetic consideration is given to all difficulties of the kind that my noble friend has in mind.
Lord Henley
My Lords, my noble friend has been consistent over the years in her concern about the impact of control order obligations on individuals and on their health, in particular on their mental health. My first point is that TPIM notices are intentionally more limited in nature than those that can be imposed under control orders. We will no longer have lengthy curfews, compulsory relocation to another part of the country and total bans on communication equipment. Therefore, whatever the result, one would hope that the effect on individuals would be less than under control orders.
Despite the limitations that should significantly reduce the impact on individuals subject to TPIMs, I appreciate that my noble friend remains concerned about these issues. I agree with my noble friend Lord Carlile that the amendment does not achieve what it sets out to do. The noble Lord put a series of questions to me about the current position and about what will be the position. He asked whether medical facilities would be provided by the Home Office for those with poor mental health. He then asked about the Control Order Review Group, and about whether something would follow it. He could not quite bring himself to work out the acronym, but no doubt something can be put in place that will have a similar role. I am sure that my noble friend asked those questions in a rhetorical manner and that he knows the answer certainly to the first two questions. Such things will be provided by the Home Office: CORG exists; and we will certainly consider something suitable to replace it in due course.
Although I cannot accept my noble friend’s amendments, I say that the Bill, together with the relevant control order case law and the duty of the Secretary of State to act within convention rights, already ensures that the Secretary of State will give the appropriate consideration to the impact of the measures on the individual and on their family, including the impact on their mental health, both before imposing a TPIM notice and during the year or however long it remains in force. With that, I hope that my noble friend will withdraw her amendment.
Baroness Hamwee
My Lords, I ought to take two minutes to withdraw the amendment—that might be obscure to anybody reading this—in order to take us to the agreed time of 8 pm. Of course I understand and accept that the measures proposed by the Bill are less severe than control orders. That is the point of the Bill. Not all of them are, because there is the possibility of enhanced TPIMs. I take the point, but it does not quite cover the ground.
I understand the point made by my noble friend Lord Carlile about a series of breaches. I talked earlier—I am not sure whether he was in his place—about the need not just for the Secretary of State to be reasonable about reporting requirements, but for police officers on the ground to be reasonable.
Of course, our experiences and what we hear are not the same, and I could never have the particular experience that he has had, but I hear of the danger of people who are under such orders becoming so despairing that they almost do not care if they breach.
The real thrust of this amendment is the importance of the involvement of professionals who are of the individual’s nomination, not just those who are provided by the Home Secretary. If I say “by the state” it may sound like One Day in the Life of Ivan Denisovich but I say “the state” quite deliberately because that is how it is perceived in this situation. My amendment suggests the formation of something akin to a case conference with the considerable involvement of an individual or organisation of the person’s choosing because of the interpretation or perception, which I suppose is inevitable in this situation, that anybody who is provided by the state is not going to be neutral, far less on the individual’s side. Having said that, I beg leave to withdraw the amendment.
Visas: Domestic Workers
Lord Henley Excerpts(12 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hamwee
To ask Her Majesty’s Government, in bringing forward proposals to end the Domestic Workers visa, what consideration they have given to the protection of the rights of domestic workers.
The Minister of State, Home Office (Lord Henley)
My Lords, the rights of overseas domestic workers in private households are discussed in the Government’s consultation document, Employment related settlement: Tier 5 and overseas domestic workers. The consultation sets out a number of proposals for reform, which include making protections more appropriate should the route be retained. We are currently considering the responses that have been received.
Baroness Hamwee
My Lords, the Minister will understand that the portability of the current visa, which means a worker can change employer as long as he or she remains in domestic work, is fundamental to safeguarding the rights of that employee and to safeguard against bonded labour. He will appreciate that I refer to rights such as to be paid at least the national minimum wage, not to be forced to work excessive hours and so on. There are some horrific stories. On Anti-Slavery Day—and every day should be regarded as Anti-Slavery Day—will the Government take into account the need to be very mindful of the rights of all who work in our country?
Lord Henley
My Lords, my noble friend is right to raise this issue on Anti-Slavery Day, but she is also right to say that we should take account of these matters on every day of the week and obviously we will. Settlement has almost become automatic for those who wish to stay in the United Kingdom under these arrangements, and the consultation is about being more selective about those who wish to stay permanently while also, as my noble friend puts it, making sure their rights are safeguarded.
Baroness Butler-Sloss
May I ask the Minister whether the Government would reconsider the signing of the ILO convention on domestic workers?
Lord Henley
My Lords, I am not sure whether that is part of the consultation, but the consultation has been completed and we are considering the responses to it. I can give an assurance to the noble and learned Baroness that I will look at that, too, as part of that process.
Lord Pannick
My Lords, does the Minister agree with the conclusions of the Home Affairs Committee of the other place two years ago that,
“domestic workers are peculiarly vulnerable to abuse”,
and that,
“To retain the existing Migrant Domestic Workers visa and the protection it offers to workers is the single most important issue … in preventing the forced labour and trafficking of such workers”?
Lord Henley
My Lords, I accept what the noble Lord has to say about domestic workers being particularly open to abuse. That is why we want to get the right balance. However, I think the noble Lord would also agree that we need an immigration system that is fairer and more honest and commands public confidence. We want to get the right balance; that is what is behind the consultation and that is what we will be looking at in the responses.
Lord Lea of Crondall
My Lords, would the Minister say a little more about the complaints procedure whereby, when many of these workers who work under slave labour conditions—and that is the word that has to be used when you look at some of the horrendous things that go on—try to make a complaint, they can lose their status and so on. Could the Minister say a little more about how people can be safeguarded if they want to make a complaint?
Lord Henley
My Lords, I cannot say that at this stage because that is the point behind the consultation. We want to consider all the responses to that consultation. But what I tried to make clear earlier, and what I will repeat to the noble Lord, is that we want to make sure that we get the right balance by providing the appropriate safeguards while making sure that we have the right safeguards against unnecessary immigration.
Lord Avebury
My Lords, in the letter from the Minister for Immigration, following a meeting we had with him on 6 September, he referred in some detail to the protection afforded to domestic workers by the national referral mechanism, which applies only to those who are trafficked and not to those who are admitted under the domestic resident worker visas. If these arrangements are terminated, as we discussed in Committee, would that not encourage rich employers to bring in their servants as visitors, as many of them already do? Would my noble friend confirm that the national referral mechanism would not be available to them or to servants in diplomatic households, who still normally come from the diplomat’s country of origin?
Lord Henley
My Lords, I believe that my noble kinsman has had a meeting with my predecessor, my noble friend Lady Browning, on this matter, and I believe that there have also been a number of meetings with my colleague the Minister for Immigration, Mr Damian Green. These matters have been discussed, but I repeat what I said earlier. This is a matter for consultation; we will want to consider these matters and come forward with the appropriate solution, which in the end will be a balance.
Baroness Royall of Blaisdon
My Lords, it is clear from the exchange of views today that what we are talking about here is tackling modern slavery. That is precisely why this question was raised today. The Minister says that the Government are looking at the granting of domestic worker visas in order to safeguard against unnecessary immigration. That is a very good thing. However, I understand that in 2009 only 795 migrant domestic workers were granted settlement. I would be grateful if the Minister could tell me how many of those originally entered the UK on the “Domestic Worker (Visitor)”, the “Domestic Worker (Other)”, and the “Domestic Worker (Diplomat)” visa.
Lord Henley
My Lords, on the more detailed points that the noble Baroness raised at the end, I will obviously have to write to her, but I think she is wrong to assume that all incoming domestic workers are being treated as slaves. They do have protections: they have the protection of the National Minimum Wage Act and all other appropriate protection. But we recognise that there is abuse here. What I am trying to talk about is getting the right sort of balance so that we can have a fair and proper immigration system—something that I have to say the party opposite failed to address in all their years in power—and have the appropriate protection for those workers who are being abused.
Terrorism Prevention and Investigation Measures Bill
Lord Henley Excerpts(12 years, 7 months ago)
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Lord Henley
That it be an instruction to the Committee of the Whole House to which the Terrorism Prevention and Investigation Measures Bill has been committed that they consider the bill in the following order:
Clauses 1 and 2, Schedule 1, Clauses 3 to 7, Schedule 2, Clauses 8 to 15, Schedule 3, Clauses 16 to 18, Schedule 4, Clauses 19 to 24, Schedule 5, Clause 25, Schedule 6, Clauses 26 to 29, Schedules 7 and 8, Clauses 30 and 31.
Terrorism Prevention and Investigation Measures Bill
Lord Henley Excerpts(12 years, 7 months ago)
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The Minister of State, Home Office (Lord Henley)
My Lords, protecting the public from terrorism will always be the top priority of the Government and we will do nothing to jeopardise the safety of our citizens. We are committed to ensuring that the police and others have the powers they need to tackle terrorism, but we are also committed to ensuring that there is a correct balance between state powers and the civil liberties of individual citizens. One does not preclude the other. Public safety is enhanced, not diminished, by having appropriate and proportionate powers.
We believe that the previous Government got that balance wrong and introduced laws that were unnecessary, ineffective and damaging to the long-held traditions of liberty in this country. That is why one of the first things we did was to carry out a comprehensive review of the most controversial counterterrorism and security powers. The outcome of the review was announced in January of this year. The review benefited considerably from the independent oversight provided by my noble friend Lord Macdonald and from the input of a wide range of organisations and individuals, including my noble friend Lord Carlile. Both noble Lords will speak later in the debate. As a result of the review, we reduced the maximum period that terrorist suspects can be held before charge from 28 to 14 days, and we replaced the stop and search powers in Section 44 of the Terrorism Act 2000 with a significantly more circumscribed regime. We are making other important changes as part of the Protection of Freedoms Bill that is currently in another place.
The Government have already done much to deliver on their commitment to restore the balance between civil liberties and state powers, but we are also clear that we have an overriding duty to protect the public and to uphold their values and defend their way of life. That is why the most difficult issue faced by the review was what to do with control orders. It is clear that the current threat from terrorism remains serious and will not diminish in the foreseeable future. It is also clear that in this country there are, and will continue to be, a small number of people who pose a real and immediate terrorist threat but who cannot be successfully prosecuted or deported. The difficulty for the review was how we could protect the public from the threat posed by these individuals while ensuring that they can lead as normal a life as possible. The results of our deliberations are reflected in the Bill before us.
The Terrorism Prevention and Investigation Measures Bill will repeal the control order regime contained in the Prevention of Terrorism Act 2005 and replace it with more focused and targeted terrorism prevention and investigation measures. The so-called TPIMs will be supported by significant extra resources for the police and security services to increase their covert investigative capabilities. This approach mitigates the risk we face in a more balanced way than control orders, but does not undermine the protection provided to the public. The prosecution and conviction of those involved in terrorism will always be our top priority. However, where prosecution is not possible, we cannot allow such individuals to continue with their activities. That is why the TPIM Bill will enable us to place restrictions on the individuals involved.
I turn now to some key measures in the Bill. In Clause 1, the Bill abolishes control orders and establishes the new TPIM regime. This enables the Secretary of State to impose specified measures on an individual by means of a TPIM notice. The details of the requirements and restrictions that can be specified are set out in the first schedule to the Bill.
Setting out in detail the nature of the measures that will be able to be imposed—including clear limits on those measures—is central to our approach. Under control orders there are very few limits on what types of measures can be imposed. Now, there will be a very specific list of the potential measures available, which is a more transparent approach. It also means that the types of measures that are available will have been specifically approved by Parliament. This is right—it should be for Parliament, not the Executive, to decide what types of measures can be imposed.
The Bill establishes 12 types of measures that can be imposed. These include: an overnight residence requirement; a travel measure, primarily to prevent travel outside the United Kingdom; an exclusion measure, to prevent individuals entering specified areas or places; a financial services measure; an electronic communication device measure; an association measure; a reporting measure; and a monitoring measure.
The overnight residence requirement is not the same as the curfew requirement that is available under control orders. Such curfews can be for up to 16 hours a day and can cover any point in the day. Our intention is not to force individuals to remain in their homes during the day, when they would normally go out to work or to study, but to ensure that they are in their homes overnight. The Bill makes clear the limits of the restrictions that can be imposed—for example there is no power in the Bill to relocate an individual to another part of the country without their consent; and under the electronic communication device measure, it is clear that the individual must be allowed to possess and use certain communications equipment.
The Bill also sets out the conditions that must be satisfied before the Secretary of State may impose a TPIM notice. A key change from the current control order regime is in the first of these conditions, which requires that the Secretary of State must reasonably believe—rather than reasonably suspect—that the individual is, or has been, involved in terrorism-related activity. We think that this is an appropriate raising of the bar for imposing such preventive measures. In each case, the Secretary of State must also reasonably consider that it is necessary to impose measures on an individual, both in relation to the TPIM notice as a whole and the specific restrictions it contains. A further condition is that, except in the most urgent cases, the court has given permission for the proposed TPIM notice to be imposed.
TPIMs are intended to be a short-term tool to protect the public. They are not a long-term solution. A TPIM notice can therefore only be extended once. This means that a person can only be subject to a TPIM notice for a total of two years. This is a significant change from the current control order arrangements.
While TPIM notices will be imposed by the Secretary of State, the Bill sets out the significant involvement that the courts will have in the process. We are clear that the primary decision-maker in these cases must be the Secretary of State, as she is the person responsible for national security. However, we are also clear that the High Court should have full oversight of the process. The courts will, in all but the most urgent cases, give prior permission for the notice to be imposed. At this stage the court must determine whether the Secretary of State’s decision to impose a TPIM notice on the basis of the evidence available is obviously flawed.
If the court gives permission and the Secretary of State then imposes a TPIM notice, the process for a full review of the decision must begin. This happens automatically without the need for an appeal to be lodged by the individual subject to the TPIM notice. The full review will be heard by a High Court judge. The judge will consider the Secretary of State’s decisions that both the conditions for imposing a TPIM notice were met at the time the notice was first imposed, and that those conditions continue to be met at the date of the hearing. The judge may quash the whole notice or specific measures within it as appropriate.
The reviews of TPIM notices will take place within the context of the relevant case law on control orders that has been developed in recent years. This means that the court will exercise intense scrutiny over the Secretary of State’s decisions and that individuals will know the key elements of the case against them even if it is not possible for them to see all the underlying intelligence.
In addition to the rigorous consideration of the Secretary of State’s decisions by the courts, the Bill also builds in a formal statutory requirement for the Secretary of State to keep under review whether each TPIM notice remains necessary to protect the public from a risk of terrorism and that each of the measures in those notices remains necessary. The Bill also makes provision for a number of additional safeguards.
First, we listened carefully to the debates in another place about the need for renewal of the TPIM legislation by Parliament. We have accepted the arguments that TPIM notices should be seen as exceptional measures and that, as such, some form of regular review of the powers by Parliament is appropriate. We therefore amended the Bill in another place so that the operative powers under the Bill will expire after five years unless they are renewed by affirmative order; that is, with the approval of Parliament. This means that each new Parliament will have the opportunity to consider the legislation, how it has operated and whether it is still necessary. I hope that the House agrees that that represents a significant safeguard.
As well as this renewal by Parliament, the Secretary of State will be required to make a quarterly report to Parliament on the exercise of the powers under this legislation. The Secretary of State must also appoint an independent person to review the operation of the Act. As the House will be aware, David Anderson QC is now the independent reviewer of terrorism legislation, a role which was previously undertaken with great distinction for many years by my noble friend Lord Carlile.
Finally, I should like to bring Clauses 26 and 27 to the attention of the House. On 1 September, the Government published a draft enhanced TPIM Bill for pre-legislative scrutiny. This reflects the conclusion of our review that additional restrictive measures may—I stress may—be required in exceptional circumstances and that we would produce draft legislation to cover such a situation. We do not believe that it is necessary to have these additional measures in the TPIM Bill as we sincerely hope that they will never be required—and here I stress we sincerely hope that they will never be required. However, we think that it is right to have the draft legislation available and that Parliament should have the chance to consider it in detail now through pre-legislative scrutiny. The TPIM Bill, however, makes provision for the Secretary of State to introduce by order the enhanced TPIM regime during periods when Parliament is dissolved.
I look forward to our debate today and to the further debates that we will have in Committee, on Report and as the Bill otherwise proceeds through the House. As always, I am sure that our debates will be characterised by the thoughtful and expert contributions that are a mark of this House. It is with some humility that I look at the experience and expertise of all those who are speaking today, compared with my lack of experience in this new brief which I have taken on from my noble friend Lady Browning, whose resignation we all very much regret. I rather wish that she was here in this place rather than me but I will do my best, as is my duty, and I look forward to hearing from all those who are speaking today. Having said that, I believe that this Bill, together with the extra resources that we are providing, will protect the security of the British public and ensure that, in doing so, we go no further than is absolutely necessary. I believe that the Bill strikes the right balance between protecting us all from terrorism and upholding the civil liberties that all of us cherish. The approach set out in the Bill is the right one, and I commend the Bill to the House. I beg to move.
Lord Henley
My Lords, I offer my thanks to all noble Lords who have welcomed me to this post and, more importantly, for the tributes that they have paid to my predecessor, my noble friend Lady Browning, who served in the Home Office, albeit briefly, and in other departments in a previous Government with great distinction. We all wish her well.
After the particularly thoughtful earlier intervention by the noble Lord, Lord Reid, I intended to keep party politics out of this debate. However, after the savaging to which I have just been subjected by the noble Lord, Lord Rosser—accusations of political fudge by the coalition Government and so on—I ought to remind him that there are considerable divisions in all parts of the House, possibly nowhere more so than on his own Benches. Not all his party agrees with the line that he, the shadow Home Secretary and others are taking. Certainly, that is true of possibly four Members on his Benches today and I am sure there are many others. The noble Lord had one or two supporters from his Benches but not many more than that.
Within the coalition there are always differences. As my noble friend Lord Howard made clear, without a single party in government, these matters have to be debated within the Cabinet and within the Government, and one has to come to a proper conclusion. The important thing, as he made clear, was getting the balance right. I was grateful that my noble friend felt, with one or two doubts, that we had got it broadly right. My noble friend Lord Phillips also said that we had got it broadly right. That is what we will debate in due course as we cover these matters.
We have had a very good, full and constructive debate today. I am grateful to all those who have contributed. We have heard a wide range of different views and it is important that we continue to discuss these issues and the different views that we take. One of the points on which I agree with the noble Lord, Lord Hunt of Kings Heath, is the importance of scrutiny of the Bill in this House. I positively look forward to the Committee stage, and Report after that, when we shall get down to that in detail. The Bill needs careful consideration by this House. It is something that this House is particularly good at. The debate has also confirmed yet again the importance that this House places on our liberties—not just the civil liberties of individuals but the right of all members of society to enjoy those liberties free from the fear of terrorism. Civil liberties are at the core of our society, the rule of law and respect for individual liberties being the very things that those terrorists wish to destroy.
A great number of very detailed points have been put to me in the course of the debate. I do not intend to answer all of them at this stage; we would be here for a very long time. However, I shall go through some of the broader themes that have come up to give some indication of where we are and what we are thinking. We will no doubt debate those in much greater detail in Committee, as is right and proper. I also want to deal with some of the worries that have been put forward. In particular, the noble Lord, Lord Dubs, talked about the enhanced TPIM Bill and seemed to think that it was lacking in scrutiny. The important point to remember about the enhanced TPIM Bill—although, as I stressed in my opening remarks, we do not want to have to make use of it—is that it will be debated in due course. That is the point of giving it pre-legislative scrutiny. It will mean that it can be debated in a measured manner at an appropriate time, and not just in moments of crisis. That will be a matter for the usual channels to arrange in due course.
The first and most important point that I shall deal with, which was raised by my noble friend Lord Goodhart, the noble Lords, Lord Pannick and Lord Morgan, and others, is the idea that the TPIM system—with which we propose to replace control orders—will operate outside the rule of law. It will not operate outside the rule of law. We are here today in Parliament, in the Lords, debating this Bill. If enacted, it will have been passed by Parliament, just as the previous Bill was—many of us remember those long hours in 2005. The regime that follows that will be fully overseen by the courts. The Secretary of State’s decisions will be constrained by legislation and the Human Rights Act and, again, be fully overseen by the courts. I forget who it was who said earlier of a particular issue—I think it was the noble Lord, Lord Desai—that, either way, it would be tested in a court of law. We can be pretty sure that everything will be tested in a court of law in due course. Seeing two former Home Secretaries in the House, I imagine that Home Secretaries get rather used to that. It happens to other Secretaries of State, and I think that all Ministers are aware of the problems it can lead to.
As I said, I want to deal with some of the points that have been made and some of the difficulties that many noble Lords see in the Bill. I want to address the whole question of the removal of relocation powers. Many from the Official Opposition, my noble friend Lord Howard and others feel that we have gone too far in removing those powers, which they believe are essential for national security. We have been clear that we will do nothing that risks our national security or the safety of citizens. Schedule 1 to the Bill contains all the powers that we need for all but the most exceptional circumstances. The exclusion regime that we propose is not the same as relocation but it will allow a certain degree of exclusion from particular places, such as named buildings, streets or towns. Exclusion from airports, ports and international railway stations will also be possible. Other restrictions include the requirement for an individual to stay overnight at a designated address, preventing him contacting certain individuals and preventing him travelling overseas. Together with the additional resources that we will provide for the police—this is the important point—those powers are sufficient to manage the risks that we face.
I think it was the noble Lord, Lord Harris of Haringey, who asked why we had still been using relocation powers over the past year if that was the case—he rightly said that there had been some use of them. I make it clear that it is our view that the public can be protected by a less intrusive and more targeted regime, which is what we are replacing the current regime with and what the Bill will bring about. However, we want to make it absolutely clear that the new regime will be complemented by those additional resources for the police and the security services allowing more surveillance and so on. Those additional resources will inevitably take some time to put in place. The noble Lord, Lord Rosser, got it absolutely right when he implied that it takes time to train people in the art of surveillance. Therefore, it takes time to put them in place. That is why the full range of control orders, including relocation powers, are still being used at this time. However, we do not believe that they will be necessary in the future, when we have moved on and the rest of the provisions are in place.
Lord Hunt of Kings Heath
That is extremely helpful but, on that basis, does the Minister agree that it would be sensible for the commencement order to start on, let us say, 1 January 2013, so that we can get through the Olympic year using the present provisions? Would that not be a more sensible approach?
Lord Henley
I will make no guarantee at this stage. I noted that my noble friend Lord Carlile suggested a delay for the Olympics. We will certainly look at that. It is something that I am sure will be argued in Committee. I give no guarantees but it is something that can be looked at. Obviously, it is important to get these things right.
Lord Desai
I was in India when the London riots took place. The one fear that everybody expressed was, “What will happen at the Olympics?”. It is very important that, whatever the Government do, they take care over the global anxiety about security in London during the Olympics, and do nothing to give the impression that we are lowering our guard.
Lord Henley
My Lords, I can give an assurance to the House, to the noble Lord and to anyone else who reads our debates that the Government take security for the Olympics very seriously indeed. Again, this is a point that we will have to consider further when we get to Committee stage but I note what the noble Lord had to say.
The noble Lords, Lord Goodhart and Lord Pannick, asked whether the TPIMs system should not be made by a judge rather than just judge reviewed. The noble Lord recalled the passage of the 2005 Act, which we all remember. He recalled my late noble friend Lord Kingsland, who at that stage wanted control orders to be made by the judge. I think that I was probably sitting next to him as he made those arguments but I cannot remember the exact outcome other than the fact that the Government got their way in the end and we have all moved on and changed our views on these things. However, we believe that this is a matter of national security and is properly a matter for the Secretary of State. While there obviously should be the appropriate extensive judicial oversight of the Secretary of State’s decision, it should none the less be the responsibility of the Home Secretary and not the High Court to impose these notices. We believe this is consistent with the approach that we have taken in other areas such as in decisions to exclude, deport or deprive citizenship on the basis of national security considerations. However, the TPIMs regime must certainly be subject to very thorough oversight arrangements by the courts. I hope that we have set out just how thorough those will be. As I said, we will continue to argue that case during the passage of the Bill.
As regards the renewal and the review by Parliament, as all noble Lords have reminded us, control orders have been subject to review every year. It was proposed that they should be reviewed every five years. That concession was brought in in another place. We believe that five years strikes the right balance. It will recognise the competence of Parliament—each Parliament will be five years from now on—to scrutinise the Bill and to arrive at a settled position on proportionate and effective powers that are needed to protect the public. It will also allow each new Parliament to review the situation and to consider whether the powers are still needed, and will mirror the length of Parliaments that we now have provided for in the Fixed-term Parliaments Bill. Ending annual renewal will allow the system to operate in a stable and considered way, focusing on protecting the public and striking the right balance with liberty rather than on merely political bickering. If we have the annual debate, I wonder whether, as with some other annual debates that we have, there will be a gradual diminishing in the interest taken in that and whether this is not something that should be left for each new Parliament to decide in due course. As I said, this matter has been raised by a large number of noble Lords on all sides of the House and I am more than happy to consider it again when we get to Committee stage.
My noble friend Lord Howard talked about being a member of the committee of privy counsellors looking at intercept and how he would have liked to use intercept if it were possible but that he was beginning to see the difficulties in so doing. I looked back to the debates in 2005 that the noble and learned Lord, Lord Lloyd, will remember. In those debates it was not Lord Kingsland arguing the point from the opposition Benches but myself. The noble and learned Lord will remember that we had considerable discussions on this matter. I think we all accept that views can change. We are committed to seeking a practical way that will allow the use of intercept evidence in court. That work is under way. My noble friend Lord Howard and others are involved in that. We will report to Parliament in due course. However, as my noble friend made perfectly clear, the issues are difficult and complex. None the less, we believe that a workable scheme could offer clear benefits in terms of enhanced scope to bring the guilty to justice and increased confidence in the justice system.
I wanted to cover those brief points at this stage. I appreciate that noble Lords have raised a large number of other points. I repeat that this has been a very good and useful debate in first airing our views on the Bill. That is exactly what a Second Reading should be. I look forward very much to Committee stage. I hope that we can continue to argue the case in a civilised manner and send the Bill back to another place in as good a state as we can get it. I commend the Bill to the House. I beg to move.
Terrorism Act 2000 (Remedial) Order 2011
Lord Henley Excerpts(12 years, 7 months ago)
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Lord Henley
That the draft order laid before the House on 17 March be approved.
Relevant Documents: 14th and 17th Reports from the Joint Committee on Human Rights.
The Minister of State, Home Office (Lord Henley)
My Lords, this order is made under the Human Rights Act 1998 and replaces the stop-and-search powers found in Sections 44 to 47 of the Terrorism Act 2000, often referred to as the Section 44 powers. These powers allowed police constables to stop and search individuals at a time and in a place authorised by a chief officer and search for articles which could be used in connection with terrorism, whether or not the police suspected the presence of such articles. The European Court of Human Rights found that the powers were not in accordance with the law. That ruling became final on 28 June 2010 and the Home Secretary made a Statement in another place on 8 July, stating that the use of the powers without reasonable suspicion would be suspended pending a review. The powers were subsequently reviewed as part of the Government’s wider review of counterterrorism powers. As a result, the Home Secretary announced that Section 44 would be repealed and replaced with a significantly circumscribed power. The Government have brought forward these proposed changes in the Protection of Freedoms Bill. However, the review also recommended that consideration should be given to whether the new powers should be made available more quickly than the Bill will allow. The remedial order before us is the result. The order has been made under the urgency procedure in Schedule 2 to the Human Rights Act 1998. The order will lapse on the passage of the similar powers currently under consideration in the Protection of Freedoms Bill in another place.
It is apparent from the European court’s ruling that there is an incompatibility to address. It is also the Government’s view, on the basis of operational advice, that given the very serious circumstances in which the new powers might be used, it was necessary to make them available using the emergency procedure which allowed the change in the law to take effect immediately. It is a fairer and more focused power with significantly stronger safeguards. It provides the police with what they need while ensuring that there are robust safeguards to prevent misuse.
The new powers inserted as new Section 47A into the Terrorism Act 2000 require that an officer reasonably suspects that an act of terrorism will take place and considers that the powers are necessary to prevent such an act. This is a significantly higher threshold than in the old Section 44 power. Furthermore, an authorisation under new Section 47A can cover only a geographical area and a period of time necessary to address the threat. The maximum period of authorisation has been reduced from 28 days to 14 days. The purpose of the stop and search has also been tightened so that the use of the powers is more closely aligned with the particular threat. In addition to these changes, there is a robust statutory code of practice. This sets out the detailed requirements for the authorisation and exercise of the powers, prohibits the continuous renewal of authorisations and requires effective monitoring and community engagement.
This order provides police with the tools they need to address a serious terrorist threat but represents a clean break from the years of misuse of the disproportionate and discredited Section 44 powers. I commend the order to the House.
Baroness Hamwee
My Lords, it has taken a little time for this order to reach us—although it is within the 120 days—and I wonder why that is so. It would have been good to have considered it rather earlier after the order came into effect. However, it means that we have had two helpful reports from the Joint Committee on Human Rights and I have also found helpful briefing that we received within the past two or three days from the Equality and Human Rights Commission.
As the Minister said, this is a curtain-raiser for the Protection of Freedoms Bill. I declare an interest which, when I mentioned it on a previous occasion, I discovered I shared with a surprisingly large number of Members of this House—I was stopped and searched under Section 44 by, in fact, the MoD rather than the Metropolitan Police. I was driving past the Ministry of Defence at the time. That was a random stop and search, although I have to say that I thought, and still think, it is very likely that they needed a middle-aged white woman to tick that box. Actually, they bagged two Peers because I was giving a lift to another, and they found a report from the Committee on Standards in Public Life in my boot—so there was nothing much to trouble them in all this. I was more interested than offended.
I support the order but share some of the concerns expressed by the JCHR. It used the term “unease”—I thought that that was a good one—about the Government’s assertion of necessity without being prepared to provide concrete evidence in support of alleged need. I am using shorthand, but the numbers in the House have reduced and those who are here will know what I am talking about. I am also concerned about what seems to be some confusion between “reasonable suspicion” and “reasonable belief”. The JCHR could not have known that we would debate this matter on the same day as TPIMs, but it made that connection. The JCHR made the point that “reasonable” does not appear regarding the authorising officer’s consideration of necessity for and proportionality of authorisation. When we come to the Bill, which will be amendable, perhaps we can look at the precise terms of the new Section 47.
I take the point that has also been made that placing elements of the code of practice into the legislation—the elements that restrict the use of the powers—would be desirable. It would mean greater clarity, enable breaches to be challenged and make checks on the use of the powers legally binding. There is also the point that we may need to consider further the relationship between these powers and the right to peaceful protest.
Of course I welcome the code and I note—particularly given my personal history—that the selection of individuals and vehicles at random must be within the parameters set out within the authorisation. Can the Minister give a reaction on behalf of the Government to the recommendation made by the independent reviewer of terrorism in his report of last July, at paragraph 8.39, on the revision of the code of practice to introduce full and proper guidance on the exercise of the officer’s discretion to stop and search? It is a longer paragraph than that but I am sure that the Minister will be familiar with it. The JCHR recommended prior judicial authorisation of the power to stop and search without reasonable suspicion. The Minister will not be surprised, as I said in the previous debate, that I am with the committee on that. However, I support the order.
Lord Hunt of Kings Heath
My Lords, the noble Lord, Lord Henley, will be glad to know that, unlike in previous debates, he is receiving unanimous support from noble Lords tonight for the remedial order, which I believe to be an entirely reasonable and proportionate response. I echo the comment of the noble Baroness, Lady Hamwee, about the timing. Clearly, it is within the due time. I agreed, through the usual channels, that we would have this debate after the Second Reading. On reflection, it is not sensible to have such a debate at this time. Many noble Lords who have spoken on Second Reading would have liked to have taken part in these deliberations as well. We might learn from that for the future—perhaps when we potentially come to annual debates on the previous legislation; we shall see.
I refer the noble Lord back to the point raised by the noble Baroness, Lady Hamwee, about the two reports of the Joint Committee. He will know that in the first report, the Select Committee asked the Government to provide Parliament with more detailed evidence of the set of circumstances in which the police have experienced the existence of an operational gap in the absence of a power to stop and search. I thought that that was a reasonable request by the Select Committee. The committee’s second report expresses muted disappointment that the Home Secretary had not accepted any of its recommendations. However, the committee goes on to say that, none the less, it thinks that the Government should find a way to tell Parliament more about the undisclosable reasons for their belief that there is a significant operational gap in the police's counterterrorism powers.
I am not being naive here. I well understand the issue for the Government: there are circumstances where it is difficult to give that information. I hope that, none the less, the noble Lord will see whether it might be possible to provide some information as a follow-up to the debate. The Select Committee has put its finger on an important point.
However, I do not intend to repeat the comments made by other noble Lords in the debate. I very much support them. We support the remedial order and look forward to the noble Lord's response.
Lord Henley
My Lords, following the remarks of the noble Lord, Lord Hunt of Kings Heath, I am very glad to see that unity has broken out, not only among the Labour Party but throughout the House.
Lord Hunt of Kings Heath
I am not going to let that go. I had the opportunity to look at the noble Lord’s Benches during the debate. I knew I was on a roll when the noble Lord, Lord Tebbit, was nodding while I was speaking in my opening remarks. The Minister was not able to see that. Then I was struck by the absence behind the Minister. There were plenty of Lib Dems there, but it did not seem to me that he was getting much support.
Lord Henley
My Lords, I think I got a reasonable amount of support; I am not sure that the noble Lord got quite as much; but we will leave it there.
I shall just respond to a few points briefly. First, on the question from the noble Baroness, Lady Hamwee, and the noble Lord, Lord Hunt, as to why it took so long, I understand that we have 120 days to respond. It was explained to me how the 120 days are counted, and I have to say that I could not quite understand it, but I am told that we are within those 120 days by a matter of five days or so. The important thing is that the draft order had to be laid for 60 days to start with, so that is half the time gone, to allow representations to be made. The remaining time was to allow those representations, including the report of the JCHR, to be properly considered. I am also grateful that my noble friend Lady Hamwee and others welcomed the code, but obviously have some concerns about it. I think that my colleague in the Home Office, James Brokenshire, in his response to the JCHR’s second report has made it clear that we will consider whether the code of practice, proposed new Section 47A or the test of its use could be amended through the Protection of Freedoms Bill when we get to it in due course. Obviously this matter can be considered by the department and there will be a chance for the House to consider it when we deal with the Bill.
I can say to the noble Lord, Lord Dubs, that the code refers only to random searches in the context of specific intelligence-based authorisation. Again, as I said, I am happy to look at the guidance further to ensure that this is clear for the police. My noble friend Lord Carlile stressed that Section 44 had been overused, misused and abused. That is a succinct way of saying what the problem was and I am grateful for the support that I have had from all sides of the House for its removal and replacement with proposed new Section 47A. Obviously we can look at this again during the passage of the Protection of Freedoms Bill.
There was a final question from my noble friend Lady Hamwee on paragraph 8.39 of the report of the independent reviewer of terrorism last July. I have to admit that it is not exactly at my fingertips at the moment and I hope that my noble friend will be happy if I write to her in due course. I promise to do that as soon as possible.
Health: Animal Testing
Lord Henley Excerpts(12 years, 7 months ago)
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Lord Willis of Knaresborough
To ask Her Majesty’s Government what action they are taking to enable the appropriate use of animals in health-related research.
The Minister of State, Home Office (Lord Henley)
My Lords, the coalition Government are committed to work to reduce the use of animals in scientific research through a science-led programme led by the National Centre for the Replacement, Refinement and Reduction of Animals in Research. Stringent safeguards are in place to ensure that animals are used only where there is no other way of achieving the desired results.
Lord Willis of Knaresborough
I thank the Minister for that helpful reply and in so doing declare an interest as the chairman of the Association of Medical Research Charities, whose members contribute over £1 billion a year to UK medical research. I wonder whether my noble friend agrees that if the UK wishes to remain a world leader in health and medical research, it requires its scientists to have access to good animal models that are well regulated and well cared for. If he agrees, what steps will he or the Government take on campaigns such as those led by Animal Aid, which tend to persuade the public that you can go straight to human trials rather than trial new devices and products through using animals? That is quite wrong and could be incredibly dangerous to the health of our research base.
Lord Henley
My Lords, I am grateful to my noble friend for his underlining of the fact that there have been some misleading claims put out by organisations such as those he referred to. We obviously want to avoid using animals wherever possible but I think we all accept that if we want the National Health Service and modern medicine as a whole to function effectively, it is essential that we can test on animals and that we make sure that the availability of medicines and treatments has been developed or validated through research, with the appropriate use of animals where it is right to do so. Again, I am grateful to my noble friend for what he has had to say.
Lord Wills
In the light of inevitable budgetary constraints, can the Minister tell the House what steps his department and the Government generally are taking to ensure that there will be adequate levels of inspection and regulation for animals used in scientific procedures? In answering that question, can he confirm whether his department is already planning an overall reduction in staffing to that end?
Lord Henley
Again, I am grateful to the noble Lord for that question. I am new to the department but in terms of the briefing I have received, I am satisfied that there is appropriate testing and licensing of the place where animal testing goes on, the people who do it and the projects involved. It is important that all three—place, person and project—are tested, examined and licensed appropriately to make sure that there is proper and appropriate use of animals in that case.
Lord Mackay of Clashfern
Does my noble friend consider that the present scope for medical research being undertaken by a single body, as seems to be proposed—I hope that it will ultimately come forward as a proposition—is a suitable occasion for reconsidering the arrangements for embryology involving animal and human embryos?
Lord Henley
My Lords, I would not want to be drawn down into the whole discussion about embryo research at this stage but I note what my noble and learned friend has to say. At the moment, the Home Office licenses research into animals in these matters and it does that job very well. As I made clear in earlier answers, the important thing is that we check up and license the persons, the places and the projects involved.
Lord Sutherland of Houndwood
My Lords, following the direction of questioning from my noble friend Lord Willis, what encouragement are the Government giving to public bodies in receipt of public funds for medical research to engage in educating the public on these matters? That is very important.
Lord Henley
The noble Lord’s question says it in itself: the important thing is to get the message over to the public that it is very necessary that we do animal research where it is appropriate and that we make the proper leaps forward as are necessary. The Government will do their bit but we hope that everyone in the world of academe, the universities and elsewhere, will do their bit to make it clear that we will do what is necessary and that necessary research is being done.
Baroness Parminter
The new EU directive controlling animal experimentation sets standards for laboratory animals which are significantly lower than those that we have presently in the UK. Can the Minister confirm that when it is implemented in the UK our high standards for laboratory animals will not be dropped, given the impact that that would have on animal welfare, on science and on public confidence in scientific experimentation?
Lord Henley
I can give an absolute and categorical assurance that we will not be dropping our standards in any way whatever.
Lord Cunningham of Felling
My Lords, is it not clear that if we want to maintain the very highest levels of medical and scientific research in the United Kingdom—levels which are endorsed by the World Health Organisation, among others—we must continue with properly regulated but available animal research? I compliment the noble Lord, Lord Willis, for raising this question. If the National Institute for Medical Research, Cancer Research UK and others are to maintain the very highest level of research to the benefit of everyone, not just in the United Kingdom but internationally, this work must continue.
Lord Henley
My Lords, I think that the noble Lord speaks for the entire House. I endorse what he and my noble friend Lord Willis have said, along with others. We must continue to maintain the highest standards, both in terms of the licensing we do here and in making sure that we continue with research at the level that we do.
Lord Patel
I am sure the Minister is aware that the Academy of Medical Sciences produced a report on research on animals containing human material, which is an important part of research, and asked the Government to consider setting up a national body to regulate research on animals containing human material. Would he like to comment?
Lord Henley
I am grateful to the noble Lord for those remarks. That is something that we will be looking at in due course. I cannot comment at this stage.
Lord Taverne
My Lords, the committee set up by this House some years ago on the use of animals in scientific procedures observed, among other things, that the most bureaucratic controls are not necessarily the best controls of animal procedures, and there was some suggestion that there was too much bureaucratic control. Can the Government assure us that steps have been taken by the Home Office to make their procedures less bureaucratic?
Lord Henley
My Lords, I hope that they are not over-bureaucratic. As I have said, it is important that we look at and license three aspects: one, the place; two, the person; and three, the project. We will continue to do that as is appropriate. Obviously we will make sure that we are not imposing excessive burdens on any project as and when it should happen. We also want to make sure that the proper research continues in the appropriate manner.
Railways: Theft
Lord Henley Excerpts(12 years, 7 months ago)
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Lord Faulkner of Worcester
To ask Her Majesty’s Government whether they have plans to amend the Scrap Metal Dealers Act 1964 to prohibit cash transactions, as a means of reducing metal theft.
The Minister of State, Home Office (Lord Henley)
My Lords, the Government recognise the significance of metal theft to the United Kingdom. The Home Office is in discussion with other government departments to identify whether any legislative changes are needed to tackle metal theft, including the possibility of moving to a cashless model.
Lord Faulkner of Worcester
My Lords, I congratulate the noble Lord on his promotion. I express my regret at the departure from the Government of the noble Baroness, Lady Browning, and wish her a full recovery.
I am pleased that the Government appear to be taking the problem of metal theft seriously. Is the noble Lord aware—I am sure he is—that ACPO reckons that the cost to the United Kingdom economy last year of this crime was something in the order of £770 million and that the problem is getting worse with the rise in the price of scrap metal? I doubt whether there are many Members of your Lordships’ House whose trains have not been delayed as the result of the theft of signalling cable, which is adding thousands of hours of delay to train schedules. Does the Minister agree that the Scrap Metal Dealers Act 1964 is now out of date and that it needs to be replaced by new legislation that increases maximum penalties, eliminates the payment of cash as a means of settling transactions and moves to a system of licensing in place of the registration that exists at present?
Lord Henley
My Lords, I join the noble Lord in expressing regret at the departure of my noble friend. We will all miss her very much on these Benches and I only hope that I can perform even half as well as she did, although I hope that I can get majorities larger than the equality that she got on the last Division that she took through this House. We will certainly miss her on this Front Bench.
The noble Lord is right to point to the problems of metal theft. There is not just the direct cost but the cost to the transport industry, to the power transmission industry and to others. We will look at all possible changes that we can make. The noble Lord is right to draw attention to the 1964 Act and possible changes to bring in a cashless model. Whether that would necessarily improve matters needs looking at, but it would certainly improve the traceability of metals and might make it harder for criminals to dispose of them for cash. That is why we want to look at it.
Lord Jenkin of Roding
My Lords, does my noble friend recognise that we are still legally in the age of Steptoe and Son and that it really is now time to bring the legislation up to date, in particular to give the police stronger powers to intervene to close down illicit scrap merchants who trade in stolen property and make absolutely no effort to discover where it has come from?
Lord Henley
My noble friend is quite right to draw attention to the problems, but it is not just the police who have a role in this; I am thinking of the previous department which I had the honour to serve in. The Environment Agency also has a role, although, admittedly, that role is reserved purely for environmental matters. There is no reason why that role should not be extended to deal with those who are trading in an irresponsible or criminal manner. Having said that, one should always be aware of the danger that one just shifts the problems on to illegal sites and it is therefore very important that we look very carefully at anything we do and what the consequences of any action are likely to be.
The Lord Bishop of London
My Lords, in comparison with the very large figure quoted, £26 million, which is the bill for the lead theft from church roofs, might strike noble Lords as rather small, but it is a very great pressure on local communities. Is the Minister aware that one step that we believe would have an impact on the problem and to which he has already referred—making cashless transactions the rule for scrap metal merchants—is, in fact, the rule in almost every other European country, including Bulgaria?
Lord Henley
My Lords, I am very grateful to the right reverend Prelate for drawing that to our attention and for emphasising the problems that we and the church are facing. I know that he has been in touch with the Home Office and that Ministers have responded to the church’s concerns about these matters. He is quite right to draw attention to the advantage of the cashless model, but there are other matters that we could look at, such as design, material and even, I understand, reviewing the properties of the copper and lead themselves to see whether they can be made more traceable in due course.
Lord Berkeley
My Lords, is the Minister aware that it is not only the railways and power transmission that are affected but telecoms cables? Is he also aware that a lot of these people just stuff the cables into containers and export them? Am I right in detecting a lack of urgency in the Government coming up with a solution, which could be very serious?
Lord Henley
I completely refute the idea that there is a lack of urgency. Only the day before my noble friend left the job that I am now in, she hosted a meeting of Ministers from a whole range of departments to look at the problems facing us and what we ought to do. However, I am grateful to the noble Lord for pointing out that an awful lot of this metal is not going to scrap metal dealers but going straight into containers and being exported. I have mentioned the role that the Environment Agency has to play in that, which we will look at.
Lord Tope
My Lords, I encourage the Minister in his urgency in dealing with this problem by letting him know that only last week in my borough 14 brass memorial plaques were stolen from Carshalton war memorial and a local church discovered that its bell had been stolen. This almost everyday occurrence is being experienced all over the country. In addition to the methods suggested by the noble Lord, Lord Faulkner, will the Minister also look at making it a legal requirement for scrap metal dealers to register and to check the details of all those selling scrap metal to them?
Lord Henley
My Lords, my noble friend is right to draw attention to the fact that not just the more valuable metals like copper and lead are affected but a whole range of others. He mentioned that brass plaques have been stolen; I assure him that there have even been cases of things such as cast-iron manhole covers being stolen, which have relatively little value but can cause major problems if they are stolen. That is why, as I have tried to make clear, we treat this problem urgently and wish to address it as soon as possible.