Counter-Terrorism and Security Bill

Debate between Lord Macdonald of River Glaven and Baroness Hamwee

Monday 26th January 2015 Lords Chamber

[Baroness Hamwee]

My Lords, my support for the noble and learned Lord’s amendment is for real, to use his own term. I was reading a little—obviously I do not have the experience of other noble Lords, including my noble friend—about control orders at the time they were to be abolished and TPIMs introduced. One could not help but feel quite disturbed by some of the experiences undergone and the impact, as has been said, not only on the individuals subject to the orders but on members of their families so, as I say, I support this amendment.

I have just one question for the noble and learned Lord. It is about whether it is necessary—he must consider it is because he has included them—to have the words about the individual having “no connection”. As I read it, but I might have missed something, the amendment to Schedule 1 to the 2011 Act takes out the references to having a connection with a locality because the 200-mile limit is being introduced. If that is so, and we are losing references to there being a connection in the Schedule, is that reference necessary in the amendment?

[Lord Macdonald of River Glaven (LD)]

My Lords, I think noble Lords on all sides of the Committee have acknowledged that, because of the situation in which we presently find ourselves, powers of this sort are regrettably necessary. However, as noble Lords have said, their legitimacy is critical, and the rigour with which conditions are examined before they are imposed and the nature of that imposition itself are of the utmost importance. For all those reasons, I support the noble and learned Lord’s amendment.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Macdonald of River Glaven and Baroness Hamwee

Wednesday 19th October 2011 Lords Chamber

[Baroness Hamwee]

My Lords, some of us are even closer to the crossfire.

I start with a question which perhaps picks up where my noble friend Lord Carlile left off. It concerns the time limit on the measures. I had intended to ask it later under some amendments which I have down, but I shall ask it now. I found it quite hard to follow the Bill at the points where it begins to refer to revival, revocation, expiry, and so on. I needed a flow chart to understand just what was available in terms of imposition of measures. Are there any circumstances in which an individual can be subject to a TPIM or a series of TPIMs lasting more than two years, and, if there is one episode of new terrorism-related activity, which is defined, how long in all can a series of TPIMs last?

I should make it clear that I very much support the amendments proposed by the noble and learned Lord, Lord Lloyd of Berwick, and supported by others. I also support the amendments of the noble Lord, Lord Pannick. On his Amendments 42 and 43, he quoted the conclusion today of the Joint Committee on Human Rights on the issue of a full merits review. It is perhaps worth reading into the record as part of this debate the comments that the committee made in leading up to that conclusion. It said that the Government in replying to its previous report had argued that,

“there is no reason to doubt that courts will continue to apply intense scrutiny in TPIMs cases, as they have in control order cases, and that ‘continued reliance on case law’ is the best way to deliver that intense scrutiny”.

That became part of the conclusion. It seems to me that that does not amount to an argument for the principles of judicial review and that intense scrutiny is not excluded by the approach which the noble Lord, Lord Pannick, has advocated and which I support. I have checked the Government’s response to the previous report by the JCHR. Nothing significant has been left out of the paragraph that I have just quoted.

On the “balance of probabilities”, I added my name to the amendment of the noble Lord, Lord Pannick. Can the Minister explain why under Clause 26, which introduces “enhanced” TPIMs, there is a higher standard of proof than for standard TPIMs? The same applies to the Draft Enhanced Terrorism Prevention and Investigation Measures Bill which is to have pre-legislative scrutiny. The memorandum from the Home Office to the JCHR regarding the draft Bill with the enhanced TPIMs, which, in particular, would provide for relocation, said that the higher test is because of the more stringent measures allowed by the draft Bill. Clearly it would apply the same argument to Clause 26. So called standard TPIMs are fairly stringent but, even apart from that, I do not follow the logic. The standard of proof as to the facts which permit a step to be taken is a different matter from the steps which are available. I regard those as closely related but logically separate issues. I am lost as to why the higher standard of proof, which, as my noble friend Lord Carlile has encouraged the House to think, would not be a risk to the Government in this context, cannot be applied.

[Lord Macdonald of River Glaven]

My Lords, I support the amendments. I can do so relatively briefly because I can quite easily and simply adopt many of the arguments that have been made.

Terrorism is the gravest and most dangerous kind of crime and TPIMs are a properly grave response to that threat. A consideration of what the imposition of a TPIM represents gives some clue as to what the correct process should be. The imposition of a TPIM represents a public finding that an individual is involved in acts of terrorism. Of course, the individual’s name is not publicised, but surely his friends and his wider community are aware of it. It is a grave step and a grave potential stigmatising of an individual with an association with the gravest kind of crime. It is in those circumstances that one is driven to the conclusion that, if a TPIM is to be imposed, it should be imposed not by a member of the Executive but rather by a court. It is in those circumstances that I support the amendments to that effect.

I have not yet heard an argument why it is better for these measures to be imposed by a member of the Executive. I have heard arguments from my noble and learned friend, whose advocacy I have heard many times in courts up and down the land and which never ceases to impress me, as to why it is not necessarily constitutionally inappropriate but not as to why it is positively better than the alternative. The argument that has been made by a number of my noble friends and other noble Lords is that, given what a TPIM represents and the gravity of the measure, if it can be done by a court it should be done by a court unless there is a very good reason why it should not. I have heard no such reason.

The same applies to the burden of proof. I agree entirely with the noble Lord, Lord Pannick: the balance of probabilities is a test which is tailor made, perfectly made, for the process which the court needs to go through in this situation. It is not the criminal standard of proof because these are, in essence, civil penalties, but a civil standard of proof which, as he said, is flexible, realistic, well understood by the judiciary and does justice in civil cases up and down the land, including in other civil preventive measures.

Again, I do not understand what the argument against this is. If it is that it should be easier to impose a TPIM—that we cannot trust a judge to come to a safe conclusion about whether something is more likely than not—that is a false argument. It is, if you like, a somewhat cowardly argument. We can trust the judges to apply a balance of probabilities test in TPIMs in a way that is both just and entirely capable of protecting the public.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I, too, support the Government and I am very much with the noble Lord, Lord Pannick. If my noble friend Lord Carlile succeeds in getting answers to his questions about evidence, I shall consider that there is a huge amount of favouritism going on. That is exactly the sort of thing that we have all asked for on many occasions, but inevitably we are not satisfied because we know that advice to the Government is advice to the Government, and we cannot read their heart as we are being asked to do.

I do not quite understand the distinction between politics and security. For all the reasons we have talked about and will continue to talk about, it is a much more nuanced and complicated—there is probably a geometric term for it that I do not know—picture than a simple polarisation as regards the impact of particular measures. Of course surveillance is going to be costly, but another balance that one must come to is where one puts one’s efforts and spends one’s money.

[Lord Macdonald of River Glaven]

My Lords, I, too, support the Government on this issue. It does not surprise me at all that if the Government presently have a power, they will seek to use it, and it does not surprise me at all that if the security services presently have a power, they will seek to retain it. But the question is, as the noble Lord, Lord Pannick, said: what is a fair balance? Noble Lords will know that the counterterrorism review considered these issues very anxiously and received a great deal of evidence. It came to the conclusion that public safety could be protected in the absence of the power of relocation but in the presence of additional surveillance, for which funding was indicated, and with the sort of measures that have now been brought forward in the TPIM Bill. That was the considered conclusion of the review and appears to be the conclusion of the Government. I must say, having scrutinised the evidence which was supplied to the counterterrorism review, it was also my conclusion. I therefore support the Government on this question.