Terrorism Prevention and Investigation Measures Bill

Debate between Lord Mackay of Clashfern and Lord Judd

Tuesday 15th November 2011 Lords Chamber

[Lord Judd]

My Lords, I, too, support the amendment. Inevitably my argument relates back to what I said on a previous amendment, but it is absolutely crucial that we should have the maximum possible support across all communities for what is being done. If the Secretary of State is to have these great powers, which the House has reaffirmed today, then we must fall over backwards to ensure that justice is nevertheless seen to be done, and not just done. In that sense, it must be very convincing indeed when the Secretary of State acts. The amendment is wise and sensible. The absence of the provisions in the amendment again undermines the battle for the hearts and minds of the impressionable young.

[Lord Mackay of Clashfern]

My Lords, we have to bear in mind that as the Bill now stands, the initiator of this procedure is the Secretary of State with responsibility for national security. The Secretary of State has available to him or her all the information that the state can provide, including on a secrecy basis, on these matters.

When a court is deciding something, the balance of probabilities is a suitable standard because it is not expected to believe one thing or the other; it is to accept the balance of the evidence one way or the other. Requiring the Secretary of State to believe is a higher standard than the balance of probabilities. I cannot believe that the Secretary of State would be entitled, on a mere balance of probabilities, to come to the belief that this is what happened.

Of course, Secretaries of State might be rather special, and they might be able to come to a faith and belief without much in the way of evidence. However, that is taken care of by the language in the Bill as it stands, that the belief must be reasonable. So it is not only belief but a reasonable belief. In other words, the Secretary of State must have available to him or her information as a result of which he or she comes to be convinced that the person has engaged in the activities that the noble Lord kindly laid out for us. I agree that it is an extremely serious matter but the language in the Bill is suitable to a situation in which a decision has to be made, not by someone who has to review the evidence as an impartial judge but by someone who comes to the evidence with the executive responsibility to take the necessary action. In my view, this requirement that the Secretary of State should reasonably believe that the person in question has been involved in these activities, is a stronger and more reliable basis for going forward than a mere balance of probabilities. It is difficult to see how one could be convinced on the balance of probabilities alone.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Judd

Monday 25th October 2010 Lords Chamber

[Lord Judd]

I listened very carefully to what my noble friend said in his forthright argument. I have always thought that if anyone was the epitome of someone who lives in the real world, it is my noble friend. What is important about the amendment of the noble and learned Lord is that, with all his vast legal experience, he is reminding us of certain basic principles which we seek to defend in our antiterrorism legislation—the character of our society.

I am troubled in what I have seen as a drift over the years by what has happened to the principle of the presumption of innocence. I am not a lawyer, and it takes a certain amount of intellectual courage, if I may put it that way, to rise in a debate such as this when the lawyers are all speaking with so much authority and learning. However, as an ordinary citizen, the principle of the presumption of innocence is very precious, and we need to be certain that, in the terribly difficult task with which we are confronted in preventing terrorism, we do not throw the baby away with the bathwater. The noble and learned Lord’s amendment is not necessarily the best way to pursue the matter, but I seek some very convincing reassurances from the Minister when he comes to reply.

[Lord Mackay of Clashfern]

My Lords, I am prompted to rise by the noble Lord, Lord Judd. The principle to which he refers is displaced only by a conviction. Therefore, the amendment does not particularly invoke that principle. I would be interested to hear the basis on which the noble and learned Lord, Lord Lloyd, thinks that a person should be charged with an offence under this provision. Of course, I understand the point made from the opposition Front Bench. It may be sufficient if there are assets in the jurisdiction, even if the person who owns or controls the assets is not himself or herself in the jurisdiction. Having listened carefully to my noble and learned friend Lord Lloyd of Berwick, I am left with the question of the basis on which, or the extent to which, one must know what has happened in order to charge someone with an offence under these provisions.