Terrorism Prevention and Investigation Measures Bill

Lord Macdonald of River Glaven Excerpts

Tuesday 15th November 2011 Lords Chamber

[Lord Newton of Braintree]

My Lords, on this occasion I have not actually been tempted. I had hoped to come in anyway, although I was a little late getting here, and I apologise for that. I would like to say to the noble Baroness, Lady Hayman, that I much appreciate the remarks she has just made. I well remember the experience we had together and the hugely valuable contribution that she made to that committee. I can also say that I share her views on absolutely everything that she has said, so I will not speak at great length. I agree also with what I have heard since I came into the Chamber. The Minister ought to know—if he was in any doubt—that there was not complete unanimity on this point on the Benches immediately behind him, even though the voices so far have come from elsewhere.

The arguments adduced on the previous occasion in Committee to which the noble Baroness has referred were, frankly, unbelievably thin. I do not blame the Minister for that—I suspect that they are inherently thin, and unless they are a lot thicker this evening then I will find myself in some difficulty, and he needs to know that.

[Lord Macdonald of River Glaven]

My Lords, I support these amendments. I declare an interest as the independent reviewer of the counterterrorism review. I should also like to pay tribute to the noble and learned Lord, Lord Lloyd, for the many hours that he has devoted to these issues over the years.

Why should it be the court rather than the Home Secretary? In my brief analysis, there are four reasons. First, on any analysis, the measures in this Bill are an exception to our normal rule-of-law principles for reasons set out very clearly by my noble friend Lord Goodhart. Secondly, they constitute a very serious potential stigmatisation of those subjected to them: a declaration of belief on the part of the state that the individual is involved in acts of terrorism. In my estimation it can hardly get much worse. Of course, the orders are anonymised, but family, friends and no doubt, the wider community, quickly become aware of the fact. Thirdly, our courts are very well used to adjudicating issues of national security, and they do it time and time again—for example, every time a question of public interest immunity arises, and in many other situations too. I am not aware of any credible argument that they do so incompetently. They may of course embarrass the Government and one or more of the agencies from time to time, but that is an entirely different point. Fourthly, and finally, our courts are independent, and they therefore bring the vigour of their independence to their decision making. In this area, that becomes a question of important public confidence.

My analysis is that it is the exceptionality of these measures, their severity, and the damage that they may do to their subject—who after all has heard no more than the gist of the case against him, quite exceptionally—that demands that they should be orders of the court rather than punitive and potentially damning directions of the Home Secretary.

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[Lord Macdonald of River Glaven]

My Lords, I also support the Government’s position on these amendments. The counterterrorism review gathered a great deal of evidence about relocation, as well as other measures applicable under the control order regime. The evidence was considered extremely carefully, as far as I could see. After all, the review was conducted by no less a division of the Home Office than the Office for Security and Counter-Terrorism, which is to be found in the deepest bowels of that department of state. Its conclusion, which I thought was certainly in accordance with the evidence, was that relocation was disproportionate and unnecessary in the face of other measures available under the TPIM legislation and particularly in the light of the Government’s decision to increase the amount of funding for surveillance, which after all is the main technique used by countries like us around the world to deal with these sorts of issues. I agreed with the conclusions of the counterterrorism review, as I thought that they were clearly in line with the evidence, of which there is a great deal. I am sure that the Government’s position on these amendments is the right one.

[The Archbishop of York]

I, too, as someone who supported the noble and learned Lord, Lord Lloyd of Berwick, in his amendment, believe that it is the duty of the Home Secretary to make the application to the judge and the judge to determine. To bring back relocation would make the case worse—not because we lost the last Vote, but I generally feel that on this particular bit of the Bill the Government have got it right. So I hope that we do not have to go through the Lobby Doors again but that the amendment will be withdrawn. Nothing will cause me greater difficulty in my understanding of British justice than bringing back relocation. That actually causes more difficulty in our communities than anything else. If there is going to be relocation, the noble Lord, Lord Hunt, should in his amendment have said that it should be done on the orders of a judge and not the Secretary of State.

I go with the Government on this, as I think they have got it right. Of course, we lost the last and most important amendment, but there we are.

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[Lord Lloyd of Berwick]

My Lords, I support the amendment spoken to by the noble Lord, Lord Pannick. It covers the same ground as my amendment, which would have amended Clause 6 by substituting civil standards of proof for “obviously flawed”. I agree with every word that the noble Lord, Lord Pannick, has said.

The great advantage of the balance of probabilities as a test is that it is flexible. At the more serious end, it approaches the criminal standard. There could hardly be a more serious finding to make against an individual, as has been said often today, than that he has been engaged in terrorist activity. Therefore, the burden of proof in these cases ought to approach the criminal standard. There is not the slightest justification for a burden of proof which is less than the civil standard.

With one exception there is no precedent that I can find in English law for a serious finding, such as is involved here, being made on the basis of reasonable belief. In the earlier debate I referred to many instances of prevention orders being made by the civil courts, some in serious cases such as sexual harm and so on, and in every case the burden of proof has been the balance of probabilities, and so it should be here.

[Lord Macdonald of River Glaven]

My Lords, Clause 4 of the Bill indicates that the finding which will be made in relation to a TPIM is that an individual has been involved in,

“the commission, preparation or instigation of acts of terrorism”;

or in,

“conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so”;

or in,

“conduct which gives encouragement to the commission, preparation or instigation of such acts, or is intended to do so”;

or in,

“conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in”,

such conduct.

This is a very grave finding. As I suggested earlier, it is a finding which justifies a standard of proof on the balance of probabilities rather than reasonable belief. I support the amendment for the reasons that have already been set out.

[Baroness Kennedy of The Shaws]

My Lords, I, too, support the amendment. It was always a great source of regret and sorrow to me that during Labour’s years in government we saw an erosion of the standards of proof on many different fronts. I remember getting support from the Conservative Benches and agreement that erosions of the standard of proof were taking place. Therefore, this rather strange volte-face by the coalition Government has come as a surprise to me. I want the Government to think again about this erosion of the standard of proof. As noble Lords who have already spoken have said, the consequences are serious. This House should not contemplate having anything less than the balance of probabilities.

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[Lord Macdonald of River Glaven]

My Lords, I support the amendment for reasons already advanced. For my part, I have no desire at all to see this sort of scheme become a normal and conventional part of our legal arrangements; it is not, for all the reasons that noble Lords have repeatedly advanced this afternoon. It is an exceptional scheme, and it is important that it continues to be seen as such. The amendment lays it bare; it mandates appropriate and continuing scrutiny, engaging the regular attention of this House and providing reassurance that these measures will not continue for a moment longer than they are required or necessary. A strong part of providing that reassurance will be annual scrutiny by this House of the continued necessity for such a scheme as is undoubtedly going to pass into law.

[Baroness Kennedy of The Shaws]

My Lords, I, too, support the amendment. I am not going to take up the time of the House, because I think that the arguments are simple. It is about the exceptional nature of this shift, which requires us to keep it under scrutiny. I remember having conversations with colleagues when we were discussing control orders, and hearing repeated over and over again in this House how important it was that liberty is maintained and that requires eternal vigilance. That is why when you depart from the norms that are in our system you have to have them under review as often as yearly.

I know that the Minister speaks passionately about liberty—I have heard him do so. I remind him that that vigilance requires that we keep this constantly in front of us, and I think that once a year is not asking too much.