Terrorism Prevention and Investigation Measures Bill

Debate between Lord Hunt of Kings Heath and Lord Howard of Lympne

Wednesday 5th October 2011 Lords Chamber

[Lord Howard of Lympne]

My Lords, I congratulate the Minister on his promotion. As I am sure he has already found out, the Home Office poses challenges of an entirely different order from those of other departments. I wish him well in his responsibilities. I join in the tributes paid to my noble friend Lady Browning, who performed her ministerial duties in this House, as she did in the other place, with very great distinction.

It is common ground in all parts of the Chamber that the best thing to do in respect of those who are suspected of involvement in terrorist activity is to prosecute them. We would all like that to happen. I welcome the fact that the Government are going some way towards making the process of prosecution easier by introducing post-charge questioning, which is something which I have advocated for some time. My noble friend Lady Hamwee mentioned at the end of her remarks the possibility of introducing intercept material as evidence in terrorist cases. Later in the debate the House will have the great benefit of hearing the wisdom of the noble and learned Lord, Lord Lloyd of Berwick. Although I am not privy to what he is going to say, and I anticipate it at my peril, I should be astonished if he did not make at least some passing reference to the desirability of introducing intercept material as evidence.

I have the dubious privilege of being a member of the advisory committee of privy counsellors charged with overseeing the work being carried out by Home Office officials in an attempt to achieve that objective. I was appointed to that committee by the previous Administration and reappointed by the present Administration. I joined the committee with a strong predisposition to making that evidence admissible. I had read the speeches of the noble and learned Lord, Lord Lloyd of Berwick, been impressed by them and largely agreed with them. I was extremely keen to see that the law was changed to make this possible. It may still be the case that that goal can be achieved, but I must tell the House that the difficulties in the way of achieving that objective are enormously greater than those that I had appreciated before I joined the advisory committee. Although I hope that we will be able to overcome those difficulties, I cannot pretend that I have enormous confidence that we will be able to do so. Therefore, the question the House has to consider, and the question which gives rise to the Bill, is: what do a Government and a society do in respect of people suspected of being involved in terrorist activity on the basis of material which is not admissible evidence in a court of law? I do not imagine that many people would suggest that that material can be ignored and that that society can be left at risk from those whom that material identifies as posing that risk.

Of course, this is not a dilemma which is particular or special to our country; other countries face it as well. The President of the United States campaigned three years ago on a promise to close Guantanamo Bay within a year. Those who are detained in Guantanamo Bay are there because they cannot be prosecuted under the ordinary laws of the United States of America. Three years later, Guantanamo Bay has not been closed, not, I am quite certain, because of any lack of good faith on the part of President Obama, or because of any lack of desire on his part to make good his campaign promise, but because of the very real difficulties of the dilemma that I have identified, which, indeed, was posed aptly and eloquently by the right reverend Prelate the Bishop of Oxford.

Therefore, what every Government have to do in the face of that dilemma is to strike a balance between the need to protect the public from the risk that these people pose while at the same time minimising the extent to which there is any interference with the individual liberty of those who have not been prosecuted and convicted in a court of law, which is the course of action that we would all desire, were it possible. To that question of striking the balance, there is no single absolutely correct answer. It is a question of judgment, and that judgment is always the outcome of discussion, debate and argument.

That is why I was not as impressed as perhaps he would have liked me to be by the suggestion by the noble Lord, Lord Hunt of Kings Heath, that the Bill is in some way to be regarded as less than ideal because it is the product of the coalition Government. The truth is that there will be in any Government—whether they be a single-party Government or a coalition—arguments, debates and discussions between different members of that Government as to where the balance should be struck. I was obviously not privy to the debates and discussions around the Cabinet table that led to the production of this Bill, but I would be very surprised if there were arguments simply between the Conservative members of the coalition on one side and the Liberal Democrat members on the other. I would suspect that there was a difference of view on both sides. That is the way in which our Government work, it is the way in which they should work and decisions emerge as a result of those debates, discussions and arguments. Those decisions are frequently compromises between the different positions, and they are none the worse for that. So there is no merit in the point that the Bill should in any way be criticised because it is the outcome of the debates, discussions and arguments that took place within the coalition.

[Lord Hunt of Kings Heath]

My Lords, I cannot resist. The point that I am making is that, as a result of the clear divisions, we have come up with a flawed process of a Bill with emergency legislation as a potential back-up because I am sure that there is an understanding among some members of the Government, and certainly in the security and police forces, that the Bill as it stands may not be sufficient. It is extraordinary legislation that gives the Home Secretary power, during a certain period, to use the enhanced provisions. The problem is the product of those discussions.

[Lord Howard of Lympne]

The noble Lord is, of course, perfectly entitled to criticise particular provisions in the Bill. What I am saying is that those provisions should be dealt with on their merits. It really should be no part of the argument that the Bill in its present form should be regarded as inferior or unsatisfactory because it is the outcome of the processes that took place within the coalition. As to the emergency provisions to which the noble Lord referred, an emergency gives rise to special needs and special circumstances, and it does not seem entirely unreasonable that the Bill should provide for those circumstances in the way in which it does.

I believe that on balance, and with one important reservation that may give some comfort to the noble Lord, the Government have got the Bill right and have struck the right balance between the various competing needs that have to be considered.

Police Reform and Social Responsibility Bill

Debate between Lord Hunt of Kings Heath and Lord Howard of Lympne

Wednesday 29th June 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, Amendment 1A and the two other amendments in this group come to an important matter that goes to the heart of the Bill: the relationship between the elected police and crime commissioner and the chief constable. Whatever one’s view of the Government’s proposals, no noble Lord will underestimate the importance of this relationship or of ensuring that it is appropriate, proper and constructive.

The noble Lord, Lord Elystan-Morgan, who is now not in his place, spoke eloquently about the meaning of direction and control of a police force under a chief constable. We know that there are inevitable tensions between police authorities and chief constables. That is healthy and entirely proper. The risk is if an unhealthy tension is created. On the one hand, there is the risk that an elected police and crime commissioner—with clearly more authority from being elected—will seek to interfere unduly in the performance of the duties of the chief constable. Equally, I am sure that some chief constables might resist the proper use of the powers of the police and crime commissioner and seek to keep them away from discussion on issues that are perfectly legitimate.

The relationship between the PCC and the chief constable is very important. The Minister has kindly shared with us some of the discussions and draft papers that lie behind the production of a draft protocol or memorandum of understanding between the chief constable and the police and crime commissioner. I am grateful for that. When we discussed this matter in Committee, I asked whether such a memorandum of understanding or protocol should be placed on a statutory footing. The Minister accepted that this was an important matter and agreed to consider it and come back to the House at a later stage. I would be interested in her response.

I fully accept the point made by a number of noble Lords that if chief constables and police and crime commissioners have to have recourse to a document to interpret whether a particular behaviour is in accordance with the memorandum of understanding or protocol, the relationship has already broken down. It is rather like the partnership agreement between general practitioners. Once they get that out of the safe, they have reached a stage where a break-up is only too likely. However, a protocol or memorandum of understanding provides at the very least a backcloth to this important relationship. Even if it does not have to be taken out of the drawer, both the chief constable and the police and crime commissioner will be aware of its existence and the principles that it seeks to underpin. Given the importance of that protocol or memorandum of understanding, I would have thought that it might have benefitted from having a statutory basis. That would give it the important signal of parliamentary legitimacy, and would be helpful in setting up the relationship as constructively as possible. I hope the noble Baroness will be able to come back with a positive response. I beg to move.

[Lord Howard of Lympne]

My Lords, may I take this early opportunity to thank the noble Baroness, Lady Farrington, in her absence, for immediately withdrawing any suggestion that she sought to confer a halo upon me? I am not sure I can be quite so fulsome in my comments on the remarks of my noble friend Lord Carlile, but there we are.

I have observed with a great deal of amusement the numerous accolades, including those from the lips of the noble Baroness earlier this afternoon, which I gather have been often repeated during the course of proceedings in this Bill—usually, alas, in my unavoidable absence—on my proposals nearly 20 years ago, which form the basis of the current provisions and current constitution of police authorities. I do not think that anyone has yet drawn attention to the fact that when I brought forward those proposals they were bitterly opposed by your Lordships and your Lordships’ predecessors. To listen to the words that have been expressed on them now, anyone would think that they had been welcomed with open arms by your Lordships and seen by those on all sides of the argument as a long-awaited answer to the problem.

Police Reform and Social Responsibility Bill

Debate between Lord Hunt of Kings Heath and Lord Howard of Lympne

Wednesday 29th June 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, in moving this amendment, I will also speak to two other amendments in my name in this group. We come to the question of pilots on which we had a good discussion in Committee. The introduction of police commissioners alongside police and crime panels is a new departure. The House will know that we on this side of the House have many worries about the impact of unelected police commissioners in terms of the potential politicisation of the police force. We think that it would be worthwhile testing this out in a number of police force areas to see the benefits and potential pitfalls.

We discussed this in Committee, as I said, and I was struck that a number of our former commissioners of the Metropolitan Police expressed some reservations about pilots. I well understand the kind of reservations that they were expressing. Essentially, they were saying that pilots create uncertainty among the other forces and chief constables. I have seen government proposals in relation to other public services where proposals are made and you have what are sometimes called pathfinders. You then implement changes in some areas over a couple of years. People in other areas are then not sure when they will come on to the tranche that will introduce changes to their particular part of the country, and clearly there are therefore some uncertainties. But this is such a major departure from the current arrangement that some uncertainties are worth it.

Overall, we do very well by our police service. There are issues and problems in some areas and there are no doubt areas where the efficiency of the force could be improved, I do not doubt that. But many advances have been made in the past 10 or 20 years, not least in the effectiveness of the forces and the strong relationships that they have built between themselves and their communities, particularly at neighbourhood level. There are considerable risks in moving away from that. Pilots would be a great chance to try this out, see what some of the problems are and see, too, some of the advantages. We could learn from that and then look to general introduction.

I hope that I will find some sympathy around the House for this suggestion. After all, if one were looking for a way through the potential disagreement between this House and the other place, I would have thought that pilots might be one way in which we could find some agreement. I beg to move.

[Lord Howard of Lympne]

First, I take the opportunity of associating myself with the remarks just made by the noble Lord, Lord Hunt, about the improvements in the effectiveness of the police over, I am very glad he had the grace to say, the past 20 years—otherwise, it might have been a little more difficult for me to agree with his sentiments. He started off by saying 10 years, but he modified that to 20 and he got it right in the end. I am happy to associate myself with that tribute, but of course there is always room for improvement. The purpose of the measures before your Lordships is to improve the accountability of the police.

I am opposed to pilot schemes for two reasons. First, I very much doubt, and I think it is difficult to make the case, that pilots will prove any true test of the effectiveness of the measures contained in the Bill. The Bill proposes to introduce an element of democratic accountability into the way in which the police operate. The essence of democracy is that it does not lead to uniformity. Democracy is the enemy of uniformity. In a democratic system, some elected police and crime commissioners will be more effective than others: that is in the nature of a democracy.

It would be very difficult to draw general lessons, which is presumably the purpose of pilots, from a few pilots, whatever attempts are made. I recognise that attempts have been made in the amendment to make them representative, but there is no such thing. There cannot be any such thing as representative arrangements. Whatever arrangements are made and whatever areas are chosen, it will not be possible to draw general lessons from whatever happens in the particular pilot schemes that would be set up.

Secondly, there is the element of uncertainty. The noble Lord, Lord Hunt, had the grace to refer to this. Amendment 7A proposes that these pilots should last for at least four years and then there should be an independent review of them. I hesitate to suggest that this is simply a delaying tactic or that the noble Lord has in mind, in effect, a wrecking amendment. Far be it from me to make any such suggestion but this is to contemplate a delay of some six years—taking “at least” four years, then adding an independent review and the time to examine and reflect upon the consequences and results. That is six years of uncertainty for the police service. That would not be doing it or the community at large any kind of favour. For both those reasons, I urge your Lordships to reject these amendments.