Terrorism Prevention and Investigation Measures Bill

Debate between Lord Newton of Braintree and Baroness Hamwee

Tuesday 15th November 2011 Lords Chamber

[Lord Newton of Braintree]

My Lords, having stuck my neck out first one way and then the other in the earlier part of our proceedings, I had decided to keep my head down on this one. I want to say to my noble and learned friend, given the views I expressed in the House earlier in the day, that he has made me feel better. It may be respectable to keep my head down, so I shall continue to keep it down.

[Baroness Hamwee]

My Lords, that was a very obvious keeping-down of the head, done in a rather energetic fashion.

I would like to raise a point which I raised—obviously rather ineffectively—at the last stage, and that is to ask why the Government make a different provision for the generality of the Bill than for the temporary power provided in Clause 26? Under that power, the Secretary of State can impose enhanced measures on individuals whom she,

“is satisfied, on the balance of probabilities, are, or have been, involved in terrorism-related activity”.

It does not seem to me that the answer to that question can be that the situation is different. The urgency of the situation—with Parliament not sitting and, as I understand it, a heightened state of security—relates to the ability of the Secretary of State to make an order. However, the balance of probabilities relates to the individual, not to the overall situation.

I am glad to see the noble and learned Lord, Lord Lloyd, nodding. I too feel better now, as it is obviously not a completely stupid question. I do not see where the distinction comes, as we would still be considering individuals. It may be that the noble and learned Lord, Lord Mackay, has answered the question for the Minister, I do not know.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Newton of Braintree and Baroness Hamwee

Wednesday 19th October 2011 Lords Chamber

[Lord Newton of Braintree]

My Lords, having vigorously indicated to the noble Lord that I wanted him to speak before me, I am left rather regretting it because I now find myself caught in the crossfire between Members on the Liberal Democrat Benches and Members on the Cross Benches. I have the deepest regard for both groups. I ought to say, if no one has said it before, that the noble Lord, Lord Carlile, deserves a huge vote of thanks from all of us for the work he has performed over many years in the role to which he has just referred. If I arrive at what is possibly a slightly different conclusion that is closer to that of my former constituent and noble friend Lord Phillips of Sudbury, it will not be for want of admiration of the noble Lord, Lord Carlile.

My starting point is that 40 or 50 years ago, give or take Regulation 18B, no one in this Chamber would have thought that anything like the successive regimes we have had since the 2001 Act were desirable. They have been imposed on us by a change in the world that we have not been able to control and which we have had to cope with in the interests of our citizens. But it has led us into things that we would not have wished to do in other circumstances. If anyone wonders why I have an interest in this, as well as in too many other things going on in the House at the moment, it is that those with longish memories will know that the choice fell on me to chair the Privy Counsellor Review Committee of the Anti-terrorism, Crime and Security Act 2001 which contained the provisions under which people were basically locked up in Belmarsh without being found guilty of anything, and the key was being thrown away. The all-party committee found that deeply unsatisfactory. I notice that the noble Baroness, Lady Hayman, who was a member of that committee, is in her place. We said that something had to be done about it. The then Home Secretary went out of his way to rubbish our report as quickly as he could and nothing happened until the courts threw out the relevant part and said that it just could not stand.

We then got to the control orders under the 2005 Act, which in my view were an improvement. I share the view which has been expressed that these new proposals are an improvement on those orders—perhaps marginal, but somewhat better. So we are moving in the right direction and I would not want it to be thought that I was hostile to the Bill or to its fundamental aim and purpose. However, I do think—here I come to the position of my noble friend Lord Phillips, the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Pannick—that this kind of thing is much better done as a court order rather than an executive act unless there are very strong reasons to the contrary. The noble Lord, Lord Carlile, adumbrated to great debating effect a list of things that are done as executive orders, and I do not want to debate all those with him, but the mere fact that we have done a lot of things by executive orders does not mean that it is desirable. If you do not have to do it, I do not think that you should. As far as I can see, the case has not been made that this should be an executive order rather than a court order. I therefore come down in sympathy with the general purpose of the amendments in this group.

[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.

Localism Bill

Debate between Lord Newton of Braintree and Baroness Hamwee

Tuesday 5th July 2011 Lords Chamber

[Lord Newton of Braintree]

I am very encouraged by that.

[Baroness Hamwee]

My Lords, I am relieved to hear the Minister say that, as the noble Lord, Lord Newton, seemed to be referring to competitive tendering, which we have experienced in different forms over the years. I want to pick up on a point that my noble friend made earlier. This is an observation rather than a question. The Minister said that the assistance would be given to whichever organisations needed it. I hope that the regulations will be written with a view to benefiting the community rather than the provider of the service. Those two things may be the same in the long run, but the benefit to the community should be the lens, as it were, through which one looks at the arrangements.