Terrorism Prevention and Investigation Measures Bill

Debate between Lord Morgan and Lord Carlile of Berriew

Wednesday 19th October 2011 Lords Chamber

[Lord Carlile of Berriew]

Which was one of the reasons why it was so unjust, because a very large number of people were made the subject of Regulation 18B and almost none of them had any evidence of any kind whatever against them. When we are dealing with TPIMs or control orders, we have individuals against whom there is very robust intelligence. I do not think my noble friend has had the opportunity to read that intelligence, but had he done so he would undoubtedly be so satisfied, being a reasonable person.

[Lord Morgan]

I do not propose to review the noble Lord’s review of my version of history, but I think it worth pointing out that the ignorance of the evidence against them is precisely one of the problems in this case. The noble Lord rightly says that there is intercept evidence, but it is evidence denied to the person. I agree that the person is not incarcerated but he is seriously restricted.

[Lord Carlile of Berriew]

I do not know whether the noble Lord has studied the effect of the case of AF (No. 3), but if he were so to do, he would find that there is a requirement for the court. Successive Home Secretaries, close to whose department I have worked, have always been assiduous to ensure that there was sufficient material—particularly since AF (No. 3)—so that the individual concerned knew the case he had to meet, at least in gisting terms. I urge the noble Lord to read the Green Paper published today by the Ministry of Justice, Justice and Security, which deals in part with these matters.

I would like to move on to the substance of these amendments. The noble and learned Lord, Lord Lloyd of Berwick, called into his argument the requirement for a court to approve a derogating control order under the 2005 Act. In deploying that argument, surely we should remember that, first, there have been no derogating control orders under the 2005 Act; and secondly, had there been a derogating control order, it would have been so dramatic that we would have had to derogate from part of the European Convention on Human Rights. This would have required, in effect, a change to our constitution which plainly ought to be passed through the courts at the earliest possible phase. I am afraid that, with real respect, I reject that argument.

In dismissing deportation applications and deportation decisions that are made daily by Home Secretaries, the noble and learned Lord said that they are made against foreigners so it is less significant, but if he thinks back to the Belmarsh case that was decided at the end of 2004, he will recall that the Judicial Committee of this House, of which he was a most distinguished member at one time, held that discriminating in that way against foreigners was unlawful. Indeed, the so-called Belmarsh provisions were struck down because they were disproportionate and discriminated against foreigners by treating them differently from United Kingdom citizens.