Queen’s Speech

Debate between Lord Hunt of Kings Heath and Lord Lloyd of Berwick

Thursday 10th May 2012 Lords Chamber

[Lord Hunt of Kings Heath]

That is a very helpful suggestion. One way or another with two elected Houses, whatever is in the legislation on the respective powers, there will always be a need for procedures to deal with the situation when both Houses disagree with each other, particularly if both Houses claim equal legitimacy, as is likely to happen, and particularly if the upper Chamber were elected on a different system of voting where the arguments for legitimacy will be legion. The noble Lord is quite right to suggest that reconciliation machinery must be part of the package, but I do not think that that can substitute for absolute clarity about the respective powers and the role of both Houses if they were both elected.

The noble Lord, Lord Wallace of Saltaire, is widely liked and admired in your Lordships’ House. In his wind-up speech last week, he apologised for not answering all the points made, but he did not answer any of them. These points go to the heart of our debate. He was asked whether a second Chamber elected by proportional representation would not claim greater legitimacy than the Commons. He was silent. Asked about the applicability of the Parliament Acts, he was no more forthcoming. Instead, he said that the Government would set out their legal reasoning on the application of the Parliament Acts if a Bill were included in the Queen’s Speech. A Bill was included in the Speech. Will the noble Lord now tell me when the advice will be made available?

The advice must answer two questions. The first is on the use of the Parliament Acts in relation to a Lords reform Bill. The second is on their use more generally in application to an elected second Chamber. I remind the Minister that both my noble and learned friend Lord Goldsmith and the noble Lord, Lord Pannick, said that the drafters of the 1911 Parliament Act did not intend its provisions to apply in the event of a second Chamber being constituted on a popular basis.

On the question of cost, the Minister said that no estimate could be given because a final decision had yet to be made on the number of Members. However, there is nothing to stop the Government coming up with a series of different options based on different sizes.

The noble Lord, Lord Wallace, suggested that the primacy of the Commons was a wonderful obstacle against which one kicked. Of course it is, but primacy is at the heart of our constitutional arrangements. The noble Lord, Lord Strathclyde, talked about involving conventions and of the House being more assertive, which I fully acknowledge; it is one reason why many people think that the House of Lords has become a more effective Chamber in the past 10 or 12 years. However, on the balance of power, the arguments between two elected Houses will be much greater than those caused by a non-elected House exercising a small degree of assertiveness.

[Lord Lloyd of Berwick]

Is it still the official position of the Labour Party that it favours a 100%-elected House? If so, how will it seek to solve some of the problems that the noble Lord mentioned?

[Lord Hunt of Kings Heath]

My Lords, we are in favour of a 100%-elected House. We debated hybridity last week. Our view on a mostly elected Chamber is that the 20% non-elected element would not feel confident about making a positive contribution in a House that would be much more political. One has only to think of what happened with hereditary Peers. I well remember, when my party was in government, that when we lost votes we counted up the votes of hereditary Peers, and if it turned out that we had lost because of their votes we made a great play of it. The same thing would happen with Cross-Benchers. They would be in an impossible position because it would be argued that because of non-elected Cross-Benchers the will of the elected majority in the second Chamber had been thwarted. In a non-elected House, I pay tribute to the great contribution of Cross-Benchers. However, a hybrid 80%-elected House would not work.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Hunt of Kings Heath and Lord Lloyd of Berwick

Wednesday 23rd November 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I am sure that we are all grateful to the noble Lord for bringing forward his first three amendments. However, I want to raise a couple of points in relation to Amendment 4. Essentially, it is to put a straightforward question to the noble Lord as to whether the 42 days that his amendment would now give for the transition period is sufficient. I do so in view of reports today that senior police officers believe that they are not fully prepared for the introduction of the new law to replace control orders.

During the passage of this Bill, we have had quite a number of debates about the principle of control orders and I do not seek to open up that question, as the House’s view is very clear on that matter. I have always recognised that the use of control orders should be a last option because they impose intrusive restrictions on individuals who in most cases will not have been convicted of a terrorism offence. But the fact is that their use was endorsed by the senior police officer who gave evidence to the Public Bill Committee in the other place. Twice in the past few months the Home Secretary has argued, first in the case of CD and then in the case of BM, that the use of control orders, particularly the relocation measures, was necessary.

The Government are saying that we can move on from the use of these control orders because alternative measures that are either in the Bill or will be put in place alongside the Bill, including much greater surveillance, will provide the reassurance that is required. That is a big ask of the police and security services. It is surely significant that the senior representative of the Metropolitan Police, in evidence to the Public Bill Committee, said earlier this year:

“To get the resources that we anticipate we need will take more than a year, in terms of being able to get people trained and to get the right equipment”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 9.]

It is fair to ask the Minister whether the police and security services are now completely satisfied that they are now able to provide the additional surveillance and other measures that would allow control orders, particularly the exclusion measures contained within the current legislation, to move into abeyance as a result of the Bill. The fact that the Minister is appearing before us today to increase the transition period from 28 days to 42 days is not without significance, and of course was done on the advice of the police and security forces.

The question before us and the Government is whether a two-week extension is sufficient. Given all the challenges that we face in the area of security and potential terrorism, and given the Olympic Games, I ask the Minister—I am sure that this will be raised in the other place when the Bill goes back there—whether, even at this late stage, we ought not to consider giving the police and security services some more time in order to ensure that sufficient resources, people and training are indeed in place.

The reports this morning appear to suggest that there are senior officers who do not believe that they are sufficiently ready. I ask the Minister to comment on that. Can he give me some assurance that the security of our country is not being put at risk? Again I ask: would the Government not be better advised, before the Bill goes back to the other place, to legislate for the option of keeping control orders until we are certain and confident that the surveillance measures are fully in place and that sufficient officers are appointed and trained to do the job that they will be required to do?

[Lord Lloyd of Berwick]

My Lords, I find myself unable to support the argument that has been put forward by the noble Lord, Lord Hunt. Indeed, it seems to be very much a repetition, on a rather smaller scale, of an argument that we heard over and over again on Report, all based on the views of one particular senior police officer. I for my part am completely satisfied with the view that has been taken by the Government. My general view is that the sooner we get rid of the old legislation, the better.

I have one other problem, which I do not know whether the Minister will be able to answer. It turns on paragraph 2 of Schedule 8 combined with paragraph 7 of Schedule 8. As I understand it, paragraph 2 provides that the old law will continue to apply to those who are currently under control orders. Paragraph 8 says that that will be so even though the 2005 Act would have expired, quite apart from this Bill repealing it. Is that the position? If so, when do the new provisions begin to apply to those who are currently under control orders? Every controlee will ask himself, “Have I been affected by this Bill or not?”. In particular, he will ask himself when the two-year period under Clause 5 starts in his case. It seems that the control order will continue to apply, but it cannot be kept in place indefinitely under the provisions of an Act that we have repealed.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Hunt of Kings Heath and Lord Lloyd of Berwick

Wednesday 5th October 2011 Lords Chamber

[Lord Lloyd of Berwick]

I would have thought that the answer to that question is obvious: under a surveillance regime, a person can live a perfectly ordinary life; under a control order, he cannot. That is the difference.

I have opposed control orders since they were first introduced in 2005 and every year since, and I would certainly oppose them now if I could. But I realise that I would get nowhere. The Official Opposition, which I had hoped might at least still be open to persuasion on this, has said that not only do they support the Bill, but they also actually regard it as being too weak.

[Lord Hunt of Kings Heath]

I do not support the Bill at all. I think that it is a complete nonsense. What is emerging is an inadequate piece of legislation, something which the Government themselves acknowledge because they are also publishing draft emergency legislation. We have a bizarre situation where twice this year the Home Secretary has argued that control orders are needed. We have yet to get an answer from the Government about how circumstances have changed in the past five months to suggest that the control orders which were used and needed five months ago will, under this Bill, no longer be available. I do not like this Bill at all.

[Lord Lloyd of Berwick]

That is the point that the noble Lord has already made on many occasions during the course of the debate. I fully accept that he opposes the Bill because he would make it stronger. I oppose the Bill because I think that it is already too strong, so obviously I have no hope there.

I will use my remaining minutes to say how the Bill could be improved. That is not difficult to do. The Bill currently provides for an order to be made by the Home Secretary but only after permission by the court and subject to review by the court as soon as is practicable after the order has been served. This is a most unusual and cumbersome procedure. It would surely be better and simpler for the Home Secretary to apply for the order and for the court to make the order in the normal way.

In her response to the excellent 16th report of the Joint Committee on Human Rights, the Home Secretary said that prevention orders of the kind we have before us in the Bill have become an established principle in our legal system. She cites anti-social behaviour orders, serious crime prevention orders and so on as examples. If serious crime prevention orders are to be the model, why does the Home Secretary not follow it through? Under the Serious Crime Act 2007, the Crown makes the application and the High Court or Crown Court makes the order. The same is true of anti-social behaviour orders except that the magistrate makes the order. I know of no case, and the Home Secretary cites none, where the order has been made by the Executive.

The noble Lord may argue that terrorism is different and that in terrorist cases the Home Secretary is in a better position to form a judgment than a court. That argument will not run as the courts have already held, in a case called Home Secretary v MB, that it is for the court to form its own view on the facts whether the individual has been involved in terrorism activity. If the court disagrees with the Home Secretary then it is the duty of the court to quash the order. The Government have accepted that that decision will apply when a review takes place, very shortly after a notice has been served under Clause 9. That being so, and it being accepted that it is the court’s decision that will prevail, what on earth is the point of the Home Secretary making the order in the first place?

In answer to the noble Lord, Lord Hunt, again—I hope to have better luck this time—there is no need to consult the judiciary about that proposal because the judges are already involved as the control order is currently administered at this stage of reviewing the orders made by the Home Secretary. There is nothing new for the judges in this. The sensible, logical order is for the Home Secretary to make the application—in that sense there will be a role for the Home Secretary—but for the court to make the order.

There is one other point, briefly. Why has the Home Secretary watered down the burden of proof? I agree on this with the noble Baroness, Lady Hamwee. Under the Serious Crime Act, which is apparently to be the model, the judge makes the order on the balance of probabilities—which is the normal standard of proof in civil cases. If the Serious Crime Act is the model, why should the same standard of proof not apply here? Once again, the noble Lord may argue that terrorism is in some way different. Once again, that argument will not run. If we want a precedent for the balance of probabilities being the appropriate standard of proof in terrorist cases, one need only look at Section 4 of the very Act that we are now being asked to repeal. In derogation cases, it is the court that makes the order on the application of the Home Secretary. The court decides the matter on the ordinary civil standard of proof. Why has that model not been adopted here?

One gets the same from Section 26 of the Act, which has been referred to, where the test is the balance of probabilities rather than the reasonable belief of the Home Secretary. What is the logic of having one test in Clause 3 and a different test in Section 26? I shall in due course propose amendments very simply to the effect—incidentally, they are quite simple to draft—that the order should be imposed by the court on the application of the Home Secretary and that the decision of the court should, as in all other cases, be the balance of probabilities.