Chilcot Committee: Intercept Evidence

Debate between Lord Lloyd of Berwick and Lord Henley

Tuesday 24th July 2012 Lords Chamber

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government when they expect the Chilcot committee to report on the admissibility of intercept evidence.

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

My Lords, the Government are conducting an extensive assessment of the benefits, costs and risks of introducing intercept as evidence in criminal proceedings. Lawful interception is a vital but complex area, and so it is crucial to get it right. The cross-party advisory group overseeing this work will be further consulted.

[Lord Lloyd of Berwick]

My Lords, it is now four and a half years since the committee was asked by the then Government to find a way of making intercept evidence available in court. It is two and a half years since the committee decided not to go ahead with the preferred solution, which is PII Plus, on the basis of certain legal advice which it had received. Since then, we have heard nothing. Will the Minister take what steps he can to make that legal advice generally available so that we can judge for ourselves whether it still has validity?

[Lord Henley]

My Lords, I may depress the noble and learned Lord a little when I tell him that it has actually been longer than four and a half years. I gather that seven previous attempts going back to 1993 have been made to try to resolve this issue, which gives some indication of the difficulty of dealing with it. We have made a coalition commitment that the Government will seek,

“to find a practical way to allow the use of intercept evidence in court”.

However, we must focus on the benefits, costs and risks of so doing, and that is why we want to get it right. As regards the legal advice, I can only say to the noble and learned Lord that it would not generally be appropriate to put into the public domain independent legal advice that had been offered by counsel.

Justice: Evidence

Debate between Lord Lloyd of Berwick and Lord Henley

Thursday 15th December 2011 Lords Chamber

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government when they expect to receive a further report from the Privy Council review, led by Sir John Chilcot, on using intercept as evidence.

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

My Lords, there have recently been changes to the membership of the Privy Council group. I look forward to it reconvening shortly to assess progress and, as appropriate, to offer advice.

[Lord Lloyd of Berwick]

My Lords, it is now nearly four years since the Chilcot committee was asked to find a way of making intercept evidence available in court. The preferred approach has always been by what has been called public interest immunity plus, which has many advantages. However, in December 2009, that approach was abandoned in the light of the decision of the fourth section of the European Court of Human Rights in a case from Finland. Since then, we have heard very little. Does the Minister recall that a month ago the Lord Chief Justice and the president of the Supreme Court gave evidence that the courts are following decisions of the European Court of Human Rights too strictly? If that is accepted, would he encourage the Chilcot committee to look again at PII+ and perhaps take further legal advice?

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Lloyd of Berwick and Lord Henley

Tuesday 15th November 2011 Lords Chamber

[Lord Henley]

My Lords, I thank the noble Lord, Lord Rosser, for those remarks, just as I thank my noble friend Lord Faulks for his remarks. I believe that we are not alone in objecting to the amendments put forward so ably by the noble and learned Lord, Lord Lloyd, for whom I have the utmost respect. We have been debating matters of this sort, sometimes on the same side, sometimes on different sides, for many years. I acknowledge his expertise, but I have to say that I do not agree with the gist behind this large group of amendments that he has tabled with support from my noble friend Lord Goodhart, the noble Baroness, Lady Hayman, and others.

Put simply, the key change under these amendments would be that TPIM notices would be imposed by a judge rather than by the Secretary of State. We have heard a great many legal arguments put forward by a great many extraordinary and eminent noble Lords—some learned, some not learned, but many are more learned than even the most learned of learned Lords. If we can take an Occam’s razor to this point, the question is: do we think that this it right for the Home Secretary to make this decision or should it be a matter for the courts? It is as simple as that.

It is no secret that the Government take a different approach to that proposed by the noble and learned Lord and other noble Lords, be they learned or not. It is no secret that we take a different approach from that recommended by the Joint Committee on Human Rights and others who have spoken in this debate. These are matters that we have debated in the House during the Bill’s passage and to which the Government have responded, in full, to the Joint Committee on Human Rights, including their response to the report of 19 October issued earlier this month.

The arguments are well rehearsed. I appreciate that noble Lords have again set out their views that such restrictions that may be imposed under this Bill—and which I emphasise are preventive, not necessarily punitive—should only ever be imposed by a judge. It is a respectful and principled decision. It has consistently been held by some in this House in relation to control orders in the past and now to TPIMs, but we cannot agree with it. We do not accept, as the noble and learned Lord, Lord Lloyd, would put it, that it is unprecedented for decisions of this sort, based on national security cases or on sensitive material, to be taken by the Executive. As he is aware, there are a number of occasions when executive decisions are made by the Home Secretary and others.

The noble and learned Lord was wrong to suggest that deprivation of British citizenship applies only to citizenship obtained by fraud. It can also be used on grounds of being conducive to the public good if the citizen is of dual nationality, which the noble and learned Lord did not mention in his response. He did mention that it can also be used under asset freezing, under the Terrorist Asset-Freezing etc. Act 2010. Again I appreciate that the noble and learned Lord did not accept that Bill, but it is now an Act. It can be used on financial restrictions under the Counter-Terrorism Act 2008. It can also be used—and has been very recently—regarding decisions to proscribe organisations that the Home Secretary believes are involved in terrorism. It is a well established principle that it is the relevant Secretary of State who can take such decisions in, for example, cases of asset freezing and others such as immigration cases with a national security dimension, with subsequent judicial oversight. That is the important point to remember. My right honourable friend the Home Secretary will make that decision. She is the right person to make it, but it will be reviewed by the courts in due course. I give way to the noble and learned Lord.

[Lord Lloyd of Berwick]

Does the noble Lord accept that the only precedents on which he relies, other than the very recent terrorist asset-freezing legislation, are immigration decisions which have nothing whatever to do with what is before us? They deal basically with foreigners, not with British-born subjects.

[Lord Henley]

It is still a matter of national security. That is why we believe that it is for the Home Secretary to make the appropriate decision and for that to be reviewed by the courts. The noble and learned Lord mentioned the 2010 Act, with which he did not agree and which he opposed. I mentioned that but I also mentioned the Counter-Terrorism Act 2008 and the financial restrictions under that. That is another example. I accept that the other matters concern immigration decisions but they are important. I also mentioned the fact that the Home Secretary has the power to proscribe organisations which she believes are involved in terrorism. Again, that matter can be reviewed by the courts, as can the one we are discussing. Therefore, it is irrelevant whether the earlier matters concerned only immigration, as the noble and learned Lord put it. These matters go beyond that. They involve national security. I will give way to the noble Baroness in a minute when I have finished this point. Therefore, I think it is right that my right honourable friend the Home Secretary should be involved in those decisions.

--- Later in debate ---

[Lord Henley]

Because my right honourable friend is responsible for security and, as I said, she is answerable to Parliament. We believe that she should make that initial decision and that later on it can be looked at by the courts. However, we think it right and proper that she should make it. That is the reason why, as I said, I am trying to strip this amendment down to its simplest point: do you want the decision made by my right honourable friend the Home Secretary or do you want it made by the courts? We believe it right that it should be made by my right honourable friend and then reviewed by the courts. For that reason I cannot support the amendment that the noble and learned Lord has moved.

[Lord Lloyd of Berwick]

The Minister has not dealt at all with the point on Section 4 of the 2005 Act. There is a clear case, as I am sure he realises, where the initial order is made by the court and not by the Secretary of State. Why should that not apply here? It is not an answer to say that that is a derogation order—or if that is an answer, why is it an answer?

[Lord Henley]

My Lords, if I had wanted to use up a great deal of the House’s time, I could have answered a great many points, and indeed the House may wish me to answer them. I was trying to bring this matter down to a simple question for the House: who would be the appropriate person to make this decision?

Section 4 was raised. The Government’s counter-terrorism review looked at that but did not consider that derogating control orders provided an appropriate parallel. No derogating control orders have ever been made and the context here would be different. Derogating control orders would impose obligations so stringent that the Government would, as I understand it, need to derogate from Article 5—that is, the right to liberty—of the European Convention on Human Rights before such orders could be imposed. Non-derogating control orders—the only kind ever used—can, by definition, impose only less restrictive obligations, and Parliament agreed that these should be made by the Secretary of State.

I go back to the very simple point that I want the House to address in the noble and learned Lord’s amendment: who do you think is the right person to make this order? We believe that the right person is the Home Secretary because the Home Secretary is answerable to Parliament and is responsible for national security. That will then be looked at by the courts, but we do not believe that it should be the courts ab initio. For that reason, I cannot support the noble and learned Lord’s amendment.

[Lord Lloyd of Berwick]

My Lords, I regret that I find the noble Lord’s reply to the debate pretty unsatisfactory. I have as great a respect for him as he says he has for me, and I just wish that he could have made a better case for the Government than he has. I think that the case is as weak as it could possibly be. I do not suppose that this amendment is likely to succeed, but it should and I therefore propose to divide the House.

--- Later in debate ---

[Lord Henley]

My Lords, I get the impression that the House wishes to move on. I never understand these things—I do not know whether the noble Lord, Lord Hunt, wishes to go out for dinner or whatever—but I will endeavour to be relatively brief.

I was amused for the second consecutive amendment as first the noble Lord, Lord Pannick, and then the noble and learned Lord, Lord Lloyd, cited my absent noble friend Lord Carlile as being a likely supporter of their amendments. It is easier to make these assertions in his absence. We will invite my noble friend to look at Hansard in due course and decide whether he necessarily agreed with the noble Lord or the noble and learned Lord. I just say that in passing.

I thank the noble and learned Lord for his explanation, which would obviously change the provisions relating to the period for which a TPIM notice can have effect. I will set out our thinking on this issue. In his model, there would be a requirement for new terrorism-related activity to have taken place while a TPIM notice is in force, in order to allow that TPIM notice to be extended into a second year. Again I must dare to use the word “balance”. We do not think that this strikes the right balance in the context of preventive orders of this kind. Indeed it would undermine the ability of the Government to protect the people of this country from a risk of terrorism.

The counterterrorism review carefully considered the issue of time limits and how long restrictions such as these should remain in force on the basis of the same evidence. It concluded that extension of a TPIM notice for a further year should only be allowed on one occasion if the notice continues to be necessary in order to protect the public. After that one extension—up to two years—new evidence would be required to impose a new TPIM notice. That is a significant move away from the position in control orders, which can potentially be renewed indefinitely on the basis of the same evidence where the control order remains necessary.

We are of the view that the ongoing necessity for the notice can be made out for a second year on the basis of the original terrorism-related activity. This is particularly so where that activity is very serious, suggesting that the individual’s mindset and intentions, perhaps to do serious harm, will not have changed after just one year subject to restrictive measures. Indeed, there are many court judgments in the control order context confirming that, for the purposes of public protection, ongoing necessity is not dependent on new terrorism-related activity since the imposition of the control order. We do not believe that the new terrorism-related activity should be required in order to extend the original TPIM notice for that one year.

While the Government’s view is that TPIM notices should not be used to warehouse people, and should not be imposed indefinitely on the basis of the same evidence—as can happen under control orders if the statutory test continues to be met—a notice that can only last one year without evidence of new activity undertaken while subject to the measures will not be sufficient to disrupt the threat posed by the individuals concerned in many cases.

Again I come back to the question of balance. We believe that the balance is about right in what we propose—that is, one year with the ability to extend it for another year. If there is to be any extension beyond that, we need new evidence of terrorist-related activity of one sort of another, as set out in the Bill. The limits proposed by the noble and learned Lord’s amendment shift the balance too far the other. I hope that he will be happy to withdraw his amendment on the basis of that explanation of balance.

[Lord Lloyd of Berwick]

My Lords, I am sad, but nevertheless I withdraw the amendment.