Crime and Courts Bill [HL]

Lord Pannick Excerpts

Wednesday 12th December 2012 Lords Chamber

[Lord Pannick]

My Lords, I support the noble Lord, Lord Avebury. As he said, it is very difficult effectively to pursue an appeal from abroad. As I understand the clause that the noble Lord seeks to amend, the Secretary of State may take advantage of the temporary absence abroad of an individual. He or she may wait for the individual to go abroad, and may act even though the individual may be abroad—as often happens—for compassionate reasons such as the ill health of a child or an aged relative. The clause is very unjust and very arbitrary.

[Baroness Smith of Basildon]

My Lords, when the noble Lord, Lord Avebury, raised this issue in Committee, I raised with the Minister some questions about the process that the Government were seeking to introduce. Like the noble Lord, Lord Avebury, I was not entirely satisfied with the replies I received. In fact, I did not receive responses to some of the questions that I raised. I hope that in the time that has expired since 4 July this year the Home Office has been able to provide some answers to those questions.

The point was raised about someone’s leave to remain being cancelled while they were out of the country. I am still unclear—because I have not had a satisfactory response—about the criteria for cancelling someone’s leave to remain while they are out of the country. Is it a purely administrative decision because the decision-making time has come up for that person—they were going to be denied leave to remain and they happened to be out of the country—or is it the case, as the noble Lords, Lord Pannick and Lord Avebury, suggested, that the Home Secretary will lie in wait for somebody to leave the country, possibly on compassionate grounds, whereupon their leave to remain will be cancelled? It would be helpful to know what the criteria will be and how the decision will be made.

It would also be useful to have information on what proportion of cancelled leave to remain is cancelled when the subject is outside the country as opposed to when the subject is in the country. I asked that in July in Committee and did not receive an answer. There has been some time since July to get that information; I hope that the noble Lord will have it available.

Another issue is the definition of “public good”. The legislation refers to a decision on removing the right to remain as being taken,

“wholly or partly on the ground that it is no longer conducive to the public good for the person to have leave to … remain”.

Is there a definition of when the public good is no longer there, or when it should be decided that there is no public good and that leave to remain should be withdrawn? The Government need to answer questions on this. I was disappointed not to get responses from the previous Minister—I am not suggesting that the present Minister did not answer me in July—and I hope to get some responses today.

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[Lord Taylor of Holbeach]

I tend to disagree with the noble Lord. I cannot see why it should be possible to allow somebody whom the Secretary of State for the Home Department has decided to exclude to return to this country purely to pursue an appeal against that decision. I do not accept that that is reasonable and that is why we have included this clause in the Bill.

[Lord Pannick]

I am grateful to the noble Lord. Is not the point that however reprehensible the allegations against the individual, if they are present in this country then they are entitled to remain and pursue an appeal? The question is whether, because of the accident that they may be abroad for a day or two for entirely understandable compassionate reasons and because the Secretary of State takes advantage of that absence to make a decision, they should then be unable to pursue an appeal while within the United Kingdom.

[Lord Taylor of Holbeach]

I think we disagree on that. Noble Lords will understand the premise on which the Government are basing their decision. It cannot be right to allow someone to return to this country when the decision has already been made by the Secretary of State that that person is considered to be undesirable to admit to this country and that is the reason for their exclusion. I should perhaps help the debate by giving some figures. Since 2005, 426 individuals have been excluded on the grounds of national security, unacceptable behaviour, serious criminality or war crimes. Annual figures have varied over the years from 111 in 2007 to 40 last year. Incidences of the decision to exclude an individual with an accompanying decision to cancel leave have totalled 30 over that period. The most was seven in one year and the fewest was two. This year to date: nil. I hope that helps noble Lords to put this matter in perspective. The Government have a responsibility for the security of the country and I hope that will carry some weight with noble Lords in this argument.

I will now carry on with what I was intending to say. Clause 27 seeks to provide the Secretary of State with a certification power where she decides that the decision to cancel leave under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 was taken on the grounds that the individual’s presence in the United Kingdom would not be conducive to the public good. The individual must be outside the United Kingdom at the time of the decision for the Clause 27 provision to have effect, the effect being that on certification the in-country right of appeal under Section 92 of the Nationality, Immigration and Asylum Act 2002 no longer applies to such a decision, which means that the person has an appeal from outside the United Kingdom. To be clear, the individual will still have a full merits appeal but that will be exercisable from outside the United Kingdom instead of from within the United Kingdom. We accept that the power to remove appeal rights from the United Kingdom to abroad must be reserved for highest-harm cases. This is why we have restricted the application of the certification power to individuals where the decision to cancel their leave is based on the Secretary of State’s assessment that their presence in the United Kingdom is not conducive to the public good. We have also expressly stated that this applies only to individuals outside the United Kingdom at the time of that decision.

Such cases have been, and will remain, the exception rather than the norm. Clause 27 seeks to maintain the operational integrity of the Secretary of State’s power to exclude an individual from the United Kingdom. Such decisions are not taken lightly and are reserved for the highest-harm individuals. It is therefore imperative that such a decision remains operationally effective, pending judicial scrutiny. For these reasons I cannot support Amendment 118D, which seeks to remove Clause 27 from the Bill. Similarly, Amendment 118C could seriously undermine the Government’s ability to secure our borders against individuals who pose a threat to the United Kingdom. The amendment would exclude from Clause 27 those individuals who are stateless, those who have previously been granted leave to enter, those who remain based on a successful asylum or human rights claim, and those who raise human rights or asylum issues in their grounds for appeal. As previously stated, it is right that we provide protection to those in need and the Government remain committed to their international obligations to such individuals. However, the Government also have an important obligation to protect the public from high-harm individuals whose actions pose a threat to national security or the rule of law.

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Moved by

[Lord Pannick]

122A: Clause 33, page 33, line 1, leave out “Section 21(2) comes” and insert “Sections 21(2) and (Abolition of scandalising the judiciary as form of contempt of court) come”

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Moved by

[Lord Pannick]

122B: Clause 33, page 33, line 17, at end insert—
“( ) section (Abolition of scandalising the judiciary as form of contempt of court);”

Extradition

Lord Pannick Excerpts

Tuesday 16th October 2012 Lords Chamber

[Lord Pannick]

Does the Minister accept that delays have been caused primarily by Strasbourg rather than London? Will he express agreement with the views of the Lord Chief Justice last month that these delays would make any reasonable person furious? Will the Minister share with the House the communications that the Government have had with the European Court in Strasbourg, expressing concern as to those delays? I should also declare an interest in that I was counsel for Mr McKinnon during an appeal to the Appellate Committee of this House.

[Lord Taylor of Holbeach]

I thank the noble Lord. The question from the noble and learned Lord, Lord Morris, was about delays in the normal process and not about delays in the European Court of Human Rights in Strasbourg. I hope that I understood that correctly. Perhaps I may inquire about correspondence with this Government to see whether it is possible to release any of that for the noble Lord. If so, I will place a copy in the Library.

Justice and Security Bill [HL]

Lord Pannick Excerpts

Tuesday 19th June 2012 Lords Chamber

[The Minister of State, Home Office (Lord Henley)]

My Lords, this has been an interesting and long debate. It seems quite a while since we started at 3 pm. We have got through some 22 speakers and I find myself being the 23rd. It is a short Bill, of some 16 clauses, but it raises some pretty big issues and has attracted a very distinguished congregation—if I may put it in those terms—to speak on it.

There has been some comment about the number of lawyers here today, and I was very grateful to the noble Lord, Lord Dubs, for being the first to point out—echoed by others—that this is not just a legal Bill and not just for the lawyers. I was glad that the noble Baroness, Lady Smith, having done a quick count, pointed out that the non-lawyers are in the majority in this debate, which is probably as it should be. However, as the noble Baroness said, it has attracted a lot of other distinguished speakers. We are very grateful for the presence of all those who are members of the JCHR and the Constitution Committee; all those who, like my noble friend Lord Lothian and the noble Lord, Lord Butler, are currently members of the Intelligence and Security Committee; and former members, self-described as part of the awkward squad, in the form of the noble Lord, Lord Campbell-Savours.

We are grateful for all that, and I hope that, as part of this debate and a fairly lengthy Committee stage and other stages, we will be able to go some way towards achieving the consensus that the noble Lord, Lord Lester, was looking for. It will not be possible to get consensus on every item, because I think that there are some fairly deeply held views that cannot be brought together, but I am sure that there are many things on which we will be able to get agreement. I am sure, too, that we will make every effort to ensure that the best possible Bill leaves this House to go on to another place. As my noble friend Lord Faulks, stressed, we need a very thorough Committee and later stages.

As I said, it is a short Bill that raises some extremely big issues. My noble and learned friend Lord Wallace took it in its proper order. He dealt first with Part 1 and then with Part 2 on the restrictions on the disclosure of sensitive material. If noble Lords will bear with me, I prefer to take it the other way round, because there has been far more talk in the debate about Part 2 than Part 1, but I will get to Part 1 in due course. I must also say in my opening remarks that it will obviously be very difficult for me to answer all the points put this afternoon in the necessarily shortish speech that I have to make, but I shall try to cover some of the broad themes. I hope that my noble and learned friend and I will be able to write to noble Lords and copy those letters to others as appropriate after the debate and ensure that we get those letters out before Committee, which, I understand, will be in the week commencing 9 July, so we have a little time to do that.

I begin with Part 2, with CMPs and Norwich Pharmacal. That has obviously excited most of the debate. Like my noble and learned friend the Advocate-General, I believe that the case is made to change how we deal with sensitive information in our courts. The novel application of Norwich Pharmacal jurisdiction to national security information has had consequences with key allies, as many noble Lords mentioned—I think the first was the noble Lord, Lord Butler. It is not just America, as some have implied, it is all our key allies. However, the provisions in the Bill are not driven solely by our intelligence partners. Secret intelligence generated by the UK’s own security and intelligence agencies could be liable to be disclosed as well. Parliament has recognised that the work of the security and intelligence agencies is of a special type. Information is core to their work and special arrangements already cover how they use and disclose it.

Although we all aspire to be able to hear every court case in open court with all relevant information disclosed to all parties in the case, I think that most noble Lords have accepted that there will be times when some of that information cannot be disclosed without damaging the public interest. The question we must put to ourselves—this will take some time in the course of our debate in Committee—is how we deal with that situation. Settling cases or asking the court to strike them out as untriable, may mean that claims, often making extremely serious allegations, can go unexamined and we are unable to get to the truth of what happened. I do not believe that that is justice.

PII has been another approach. It enables cases to go ahead with fully open proceedings but at the expense of excluding relevant and sensitive material from the case. That can work in some cases, but there are times when it does not—for example, where a case is saturated in sensitive material, as David Anderson QC put it. A successful PII application can render a case untriable or leave the Government unable to defend themselves without damaging national security. That can be unfair for claimants or for the Government.

CMPs have been the solution to that problem and they have worked successfully in a number of contexts. The noble Lord, Lord Butler, said that they were the least worst option. My noble friend Lord Lothian described them as being, on balance, about right. Openness is sacrificed for part of the proceedings, and this enables all relevant material, including national security sensitive material, to be taken into account by the court, but it is done in such a way that the proceedings are fair and the interests of any party excluded are properly represented. The Supreme Court has stated that it is for Parliament to decide what the procedures should be for dealing with such cases. The Government produced the Green Paper and we listened to the views. Again, many noble Lords, I think particularly my noble friends on the Liberal Democrat Benches, have accepted that we listened to the views and have moved forward a great deal from what was in the Green Paper and put forward for public consultation. We have brought forward the amended proposals in this Bill.

Noble Lords have highlighted a number of key issues in this debate and those discussions that we will have during subsequent stages of the Bill will obviously let us explore whether the Government have the balance right in these important matters. Perhaps I might deal with one or two of the points that have been raised that deserve some response at this stage, if I can find the right bits of paper—they are all here but in a strange order.

First, I wanted to cover the points made about special advocates and the recent paper that they put to the Joint Committee on Human Rights. I have seen their evidence, which I believe was published last week. The special advocates are reiterating arguments which they have made and, in effect, have had rejected by the courts. To some extent, special advocates do themselves a disservice. They are extremely effective, particularly in arguing in court that more information should be disclosed, and have helped to win cases by challenging closed evidence on occasions. The best way of dealing with this would be to quote what the noble and learned Lord, Lord Woolf, said in M v Secretary of State for the Home Department. He stated:

“Having read the transcripts, we are impressed by the openness and fairness with which the issues in the closed session were dealt with by those who were responsible for the evidence given before SIAC … We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.

I commend that to the special advocates and would suggest that they reflect on it.

I turn to the Binyam Mohamed case, which the noble Lord, Lord Lester, raised and has dealt with. He probably knows more about it than anyone else. On the information revealed in that case and whether it was in the public domain, my understanding is that the Court of Appeal ordered that seven paragraphs redacted from the Divisional Court’s judgment, which contained a summary of US intelligence reporting, should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. The judge in the US did not put the contents, or a summary of the contents of the US intelligence reporting provided to the UK, into the public domain. The court made findings of fact based on allegations about Binyam Mohamed’s treatment that were not challenged by the United States Government.

I turn from that to the questions raised by the noble Baroness, Lady Ramsay, about the Bill’s provisions on intercept and how the evidence to support the conclusions of the Privy Council’s report on intercept would be used in criminal cases. The amendment contained in this Bill to Section 18 of RIPA lifts the prohibition in Section 17 of that Act so that intercept material can also be discussed in a CMP. This is in line both with other, existing statutory CMPs and with our desire to take account of all relevant information in CMPs.

As the noble Baroness knows, the Government are separately conducting an extensive and detailed review in order to assess the benefits, costs and risks of introducing intercept as evidence in criminal proceedings. This work continued under the guidance of the cross-party group of Privy Counsellors that she referred to. It will report in due course. I appreciate—I answered a question on this a few months ago—that we have been using that expression “in due course” for some time. However, I think that it underlines the very great difficulty of coming to a reasonable solution in this matter. I myself have changed my views this way, that way and again, and I know other far more distinguished people than me who have looked at this in much greater detail than I have who have also found it very difficult to come to a final decision. However, the process will continue. I was grateful that the noble Baroness referred to the work being done by the distinguished body of Privy Counsellors that is dealing with that.

The noble Lords, Lord Dubs and Lord Pannick, and other noble Lords, dealt with the whole question of whether it was for the courts to decide between PII or closed material proceedings. We are not convinced that the question of whether there should be a PII claim or a CMP should be left to the courts. It is a very important constitutional point that the Executive in the end have to be the guardian of the United Kingdom’s national security interests. Obviously, the courts will play an essential role in scrutinising the Government’s exercise of these functions. However, we believe that the question of whether to claim PII, and, accordingly, a CMP, should be left to the Home Secretary.

Similarly, the noble Lord, Lord Macdonald, suggested that a CMP should be held only after a full PII exercise, but we believe that it would be costly and illogical to go through a potentially lengthy PII process first. It may be obvious at the beginning, for example, that too much will be excluded. We understand that the Lords Constitution Committee did see the need for full PII; the report says that we can see force in the argument that it will sometimes be otiose to push the PII process to its completion before turning to a CMP.

[Lord Pannick]

Does the Minister at least accept that a CMP should be a last resort if, and only if, there are no effective means of addressing all relevant factors?

[Lord Henley]

That is a point that we will consider at much greater detail when the noble Lord puts down his amendments, which I am sure will appear. We will discuss that in Committee and no doubt at later stages. The point is that at the moment I am making our case and want to clear the arguments in detail. That is why I was rather loath to take too many interventions in this winding-up speech. I appreciate that my noble and learned friend took some seven interventions in opening, but on this occasion I am going to resist most of them, because the important point is that we discuss these matters in Committee, when we can deal with them in greater detail. The noble Lord will then be allowed to intervene to his heart’s content.

I see that my time is beginning to run up, and I want to get on. However, I shall say one more thing on this. I will deal with the question on sensitive information in Norwich Pharmacal clauses, which a number of noble Lords—my noble and learned friend, Lord Mackay, and the noble Lords, Lord Pannick and Lord Dubs, for example—all seemed to think was somewhat too wide. I must stress that this is the definition in the Norwich Pharmacal clauses; I appreciate that the noble Baroness also raised the definition of sensitive information for the Intelligence and Security Committee in Schedule 1, but that is obviously a different matter.

The fact is that virtually all material sought by Norwich Pharmacal applicants from the security and intelligence agencies is material the public disclosure of which would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from agencies; they seek information specific to them that would be held by an agency and available only from that agency. If it was information necessarily derived from sensitive sources or from techniques or capabilities from a foreign intelligence department, all or any of that could be damaging to the public interest if disclosed. The approach taken in the clause in the Bill mirrors the protection of such information found, for example, in the Freedom of Information Act.

I turn to the less controversial part of the Bill, Part 1—if I can find the right part of my notes—which deals with oversight. This part had somewhat less coverage than the rest of it, but, after the speech from the noble Lord, Lord Campbell-Savours, and the interventions from the noble Baroness, Lady Smith, I am beginning to understand that it might generate just a bit of controversy and I might have some work to do, unlike my noble and learned friends, as I do that part of the Bill in Committee. I did not want to overlook the important changes that we are making to this and it is right that we should periodically re-examine the way in which we scrutinise that work. Again, I pay tribute to the current members of the Intelligence and Security Committee.

We are grateful to the noble Lord, Lord Butler, and my noble friend Lord Lothian for sharing the benefit of their experience of sitting on that committee. I am also grateful for the views that we heard from the noble Baroness, Lady Manningham-Buller, particularly what she said about trusting the head of the security services far more than she would trust Ministers. I will take that on the chin. I think she was echoing what the noble Lord, Lord Campbell-Savours, said, but she echoed it with approbation.

I recognise the experience that the noble Lord, Lord Campbell-Savours, has, and I am pleased that we will have an interesting time in Committee on that aspect of the Bill. The noble Baroness, Lady Ramsay, was concerned about the membership and thought that there was scope in the Bill for more Members of this House. I do not believe that there is any detail in the Bill about how many there can be, but I think the current rules are that at least one must come from each House, so it would be possible to have eight Peers and one Member of the Commons, or it could be the other way around. It will be for the Committee to decide what the appropriate number should be. That is something that we can discuss.

Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Lord Pannick Excerpts

Thursday 15th December 2011 Lords Chamber

[Lord Laming]

My Lords, it is a great pleasure to follow the right reverend Prelate and we should be extremely grateful for the insight and human quality that he has brought to the House. I think that the whole House would wish to dissociate itself from any unpleasant comments and criticism that have been directed at the noble Baroness who has moved this Prayer to Annul. She is rightly held in high regard in this House and no one should doubt the sincerity of her position.

The debate has moved on considerably since I prepared my notes and I shall therefore be brief and summarise my views. I am not a lawyer and I speak in a purely personal capacity. I approach this matter from a more social point of view. Successive Governments deserve great credit for the sensitivity and understanding that they have demonstrated in handling the registration of civil partnerships under the 2004 Act and the way in which they have demonstrated equal sensitivity under the Equality Act 2010. As a result of these pieces of legislation and the regulations that have been provided, it seems to me, from a lay point of view, that the churches have all the necessary freedoms and safeguards that they may wish to have. This is well illustrated by the fact that the churches will have to make their own decisions to opt in to these arrangements. It is certain that there is nothing in this legislation that in any way promotes a particular lifestyle.

I am a member of the Church of England and I have the honour to represent your Lordships on the Ecclesiastical Committee. I am a great admirer of all faiths and therefore find it very difficult to appear to be critical. However, I do so with kindness because I would not be being faithful to my beliefs if I failed to say that it has saddened me, and no doubt many others, that the churches have not been in the vanguard of promoting equality in our society. The way in which the Government have tackled this sensitive area is very worthy and credible and I very much hope that in approaching this matter the churches will follow that example.

We Anglicans like to say that we are part of a broad church. That is true theologically, but it may not be necessarily true socially. I hope that in approaching these matters we will not only be gracious to our fellow human beings but generous and understanding. I hope that this Prayer to Annul will be rejected by the House.

[Lord Pannick]

My Lords—

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[Lord Pannick]

My Lords, I very much respect the principled views of the noble Baroness, Lady O'Cathain, but this is not a matter of conscience, it is a matter of legal interpretation. As the noble and learned Lord, Lord Mackay of Clashfern, said, the question is whether there is any real doubt as to what a court would say on the matter. Your Lordships may have found it rather striking that the noble and learned Lord did not give the House any opinion at all as to the answer to this question; he confined himself to saying that views are expressed by QCs on this matter. In my experience of this House, it is rare for the noble and learned Lord not to give the House his very welcome opinion on issues, and I am sorry that he gave the House no opinion on the credence that could be attached to the opinions that have been expressed.

My view, for what it is worth, as a barrister practising in the area of human rights law and administrative law, is that there is no possibility whatever of any court accepting the arguments that have been advanced in those opinions. That is for two reasons. First, the court would focus on Section 202. It would recognise that Parliament has expressed in the clearest possible terms that religious bodies have a power to conduct civil partnership ceremonies but no duty whatever to do so. The regulations faithfully implement what Parliament has decided

The noble Baroness, Lady O'Cathain, expressed a concern that had been expressed by her advisers that that is not good enough because it is the Equality Act that, as she put it, poses the danger. The noble and learned Lord, Lord Mackay, made the same point. My answer to that concern is that it is the very Equality Act that expressly addressed civil partnerships and allowed civil partnerships to be conducted on religious premises for the first time but made it absolutely clear that religious bodies have no duty to conduct such ceremonies.

[Lord Mackay of Clashfern]

The noble Lord must accept that the operative effect of the provision in the Equality Act is to make an amendment to the Civil Partnership Act 2004, and nothing more.

[Lord Pannick]

I entirely accept that, but it is the Equality Act that addressed this very question of the circumstances in which religious bodies may, but have no obligation to, conduct civil partnership ceremonies. It therefore seems to me highly unlikely that any court will say that that very legislation, the Equality Act, nevertheless imposes indirectly some duty on religious bodies to do precisely what Section 202 of the same Act states that they do not need to do.

Secondly, if there were any ambiguity in the Equality Act—there is none, but if there were—a court would interpret the Equality Act by reference to the right under the European Convention on Human Rights and by reference to Section 13 of the Human Rights Act, which this Parliament enacted, which states that on any question that might affect the exercise by a religious organisation of the right to freedom of religion, the court must have particular regard to freedom of religion. It is plain beyond argument that the court would therefore say that a religious body has no duty to do what would conflict with the religious rights of the church or other religious body concerned.

Earlier in this debate, the noble Lord, Lord Tebbit, asked for assurances that the European Court would not interfere in this matter. I would be extremely surprised if the European courts would trespass on a fundamental question of religious freedom, but if they did, nothing that we decide today would affect that—it is simply irrelevant to this debate and therefore cannot be used either to support or to argue against the Prayer that the noble Baroness presents to the House.

[Lord Tebbit]

The point is that we are opening the way for the court to do so. The noble Lord said that he would be very surprised if it did. Has he never been surprised at the judgment of a court?

[Lord Pannick]

I submit that this Parliament must proceed by what we recognise is the overwhelming probability. We cannot legislate on the basis of something that would be wholly contrary to what Parliament has decided as recently as 2010. I say with great respect to the noble Lord that the attitude of the European Court is completely irrelevant to this debate.

I have to tell noble Lords that if I were asked to advise a client on the prospects of success for someone who wished to compel a religious body to hold a civil partnership ceremony against its will, my advice—and, I am sure, the advice of every other competent lawyer practising in this field—would be that any such application would be completely hopeless and misguided. Therefore, I hope that the noble Baroness will withdraw her Prayer for annulment.

[Lord Mackay of Clashfern]

The noble Lord took great comfort from the Human Rights Act, which of course dates back some time before the 2004 and 2010 Acts came into being, yet the noble Lord, Lord Alli, and those with him, thought that it was wise to put into the 2004 Act an avoidance of doubt provision. Therefore, they were not prepared to trust the Human Rights Act provision alone to avoid any doubt that might arise. Such a provision does not suggest that there would be a legitimate attack; it simply suggests that doubt is to be put at rest completely, and that is what I should like to see here.

[Lord Pannick]

My answer to the noble and learned Lord is that in 2010, when the noble Lord, Lord Alli, was seeking to persuade the House to create for the first time, contrary to what had been decided in 2004, a power for religious bodies to conduct civil partnership ceremonies, it was perfectly understandable that it should be made clear that this was a power but not a duty. We had that debate and resolved the matter. There is no ambiguity and we really do not need to revisit it.

[Baroness Deech]

Given the protection for religious freedom that the noble Lord, Lord Pannick, has just described, why did the Equality Act and the Human Rights Act not permit a Jewish school to continue its religious freedom in maintaining the definition of Judaism that had prevailed in the Jewish religion for thousands of years?

[Lord Pannick]

As the noble Baroness knows very well, that case raised completely different issues. No specific provision in the Equality Act addressed that question. I have to declare an interest. As the noble Baroness well knows, I was the counsel who acted for the JFS, the Jewish Free School, in that litigation, and the problem was that there was no specific provision. By contrast, the Equality Act addresses this very question and it does so in the clearest possible terms.

[Baroness Richardson of Calow]

My Lords—

Terrorism Prevention and Investigation Measures Bill

Lord Pannick Excerpts

Tuesday 15th November 2011 Lords Chamber

[Lord Pannick]

I, too, support the noble and learned Lord, Lord Lloyd of Berwick, on Amendment 1, and his proposal that the imposition of a TPIM should be a judicial and not an administrative act. If restrictions of this nature on basic liberty are to be imposed, they are to be imposed on British citizens, and imposed entirely outside the criminal law process. Surely it is necessary for the procedure to require that they be imposed by judges, particularly when they are being imposed by reason of serious allegations of wrongdoing on the part of the individuals concerned?

The Minister said at Second Reading—and I reminded your Lordships in Committee—that the Government’s approach to this Bill was to try to balance civil liberties and security by ensuring that the Bill goes,

“no further than is absolutely necessary”—[Official Report, 5/10/11; col. 1137.]

in limiting people’s rights. Those were his words. Surely that test, that criterion—which must be the right criterion—requires that these restrictions be imposed only with judicial approval. If the security services, with all the information available to them, are unable to persuade a High Court judge in a closed session, where the material is not disclosed to the individual concerned, that the restrictions are needed, the restrictions should not be imposed at all.

If the Revenue requires a court order before it is able to raid a person’s house in order to seize his documents, surely the Home Secretary should require a court order before she can require that same individual to remain in his house overnight, or not to contact other specified persons, or before she can impose any of the other specific restrictions under a TPIM order.

Your Lordships should have no doubt that for these orders to be imposed by a judge on application by the Home Secretary, and not to be imposed administratively by the Home Secretary herself, would substantially increase confidence in these orders in those sections of the community most suspicious of them.

[The Archbishop of York]

My Lords, this clause gives the Home Secretary power to impose measures for terrorism prevention—so in many ways she is acting like a judge—and investigation, so she is behaving like the DPP. That is not right. You cannot combine functions that belong to the courts and the Director of Public Prosecutions into one person. That is always going to be problematic.

In this country, one of the greatest joys is that no one is deprived of their liberty unless they have committed an offence defined in law, been investigated and gone before a court, which in the end imposes the deprivation of liberty. Of course, you tell me, “This is the United Kingdom; the Home Secretary could never be near this”. In Uganda, if the President felt that you were committing treason, he made an order and you found yourself arrested, locked up and deprived of the possibility of any defence. Of course, you would say, “That is terrible; it should not be like that”. Friends, it happened to me.

Therefore, I feel where you are going at the moment, if you are going to deprive and impose specific measures on a person, surely it should be by application to the courts, and it would be the duty of the Home Secretary to present evidence that persuades a judge. Of course, we will be told that the Home Secretary will act very quickly. As the noble Lord, Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, said, it can be done ex parte, very quickly; there is no reason that cannot happen. For the sake of those of us who came to enjoy the separation of the Executive from the judiciary and still see it as the greatest defence for the liberties of people, I hope that the Government will accept that this will be an improvement to the Bill if this separation is made.

There should be no doctrinaire stuff about it. In the end, it cannot really be the same person who does all this. Thank God, I will never be Home Secretary. If I were, I would find this clause terrifying, because in my conscience I would not want to be the judge, jury and executioner all in the same place—and the DPP as well, all combined into one. For the sake, therefore, of keeping this fantastic balance of the Executive and the judiciary never meddling with one another, this legislature would do well to accept all of the amendments that have been tabled by the noble and learned Lord, Lord Lloyd of Berwick. This is what I rejoice about in this country—its liberty and its separation of powers.

--- Later in debate ---

[Lord Henley]

There is obviously a distinction but both involve one’s human rights. That is the importance. The noble Baroness may have noticed that when my noble friend Lord Sassoon noticed on the television that the noble and learned Lord was making these points, he came in to have a quick word with me to make clear what he had discussed, and I will try to convey those feelings to the House. I hope that I have understood what my noble friend whispered to me on the Front Bench, and I hope that the noble Baroness will accept it.

As we also made clear, we believe that it is not just the view of the Executive that is crucial in these matters. That is why I quoted earlier the view expressed by the courts. It is consistent with the view expressed by the Court of Appeal in the case of MB, which the noble and learned Lord also referred to, in which the court said that,

“the Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect”.

In the same judgment the Court of Appeal also noted that the principle that the courts should pay deference to the Executive on matters relating to state security has long been recognised by the courts in this country, including the Law Lords, and by the European Court of Human Rights.

As I said at the beginning of my speech—in asking, as it were, for something approaching an Occam’s razor to be put to this argument—it is just getting it down to the simple question: which do you think is the appropriate body to make this decision?

[Lord Pannick]

My Lords—

[Lord Henley]

I am not going to give way until I finish this point, and then I will give way to the noble Lord.

We believe that it is for the Home Secretary to make the decision, and for this decision to be subsequently reviewed, because the Home Secretary is a politician who is answerable to Parliament. I appreciate that some will knock the role of politicians but I would remind noble Lords of the very powerful speech made by the noble Lord, Lord Reid, at Second Reading, where he reminded us that most of our freedoms are the result of politicians and their acts, and not of the courts. The Home Secretary, as a politician answerable to Parliament, will make that decision and that decision will then be reviewed by the courts in due course. It is that very simple decision that we want to make. Should it be the Home Secretary or should it be the courts? We believe that it should be the Home Secretary. I will now give way to the noble Lord.

[Lord Pannick]

I am grateful to the noble Lord. I am puzzled by why he thinks that judicial control at the outset would undermine ministerial responsibility when he accepts that there should be judicial review on a merits approach at a later stage if the order is challenged. Why is the latter equally not an undermining of ministerial responsibility?

[Lord Henley]

Because my right honourable friend is responsible for security and, as I said, she is answerable to Parliament. We believe that she should make that initial decision and that later on it can be looked at by the courts. However, we think it right and proper that she should make it. That is the reason why, as I said, I am trying to strip this amendment down to its simplest point: do you want the decision made by my right honourable friend the Home Secretary or do you want it made by the courts? We believe it right that it should be made by my right honourable friend and then reviewed by the courts. For that reason I cannot support the amendment that the noble and learned Lord has moved.

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[Lord Hunt of Kings Heath]

My Lords, I have a number of amendments in this group and I should like to start with Amendment 44A. At Questions, the noble Lord, Lord Henley, seemed to think that this was peripheral to our debates today but I do not think that it is. Surely the context in which we consider the Bill is in relation to the measures that are necessary to prevent terrorism. We were offered a Statement in lieu of a PNQ in the other place on the matter to which I am going to refer, but it is just as appropriate to discuss it here.

Amendment 44A essentially asks the Secretary of State to commission an independent review to report on the operational effectiveness of the terrorism prevention measures in place at our international borders. That is set in the context of serious concern about the operation and effectiveness of the terrorism prevention measures in place at our international borders and the Bill has to be seen in this context. Of course, one has to refer to the significant reduction in the levels of security in border checks at UK points of entry in the summer of 2011, which has been the subject of considerable parliamentary debate and concern over the past two to three weeks. The noble Lord will be aware that the Home Secretary has yet to answer some very serious questions, particularly in regard to the scale of the security breaches that have taken place.

The subject of the PNQ in the other place today concerned reports this morning that thousands of passengers arriving on private jets from all over the world were allowed into this country this summer without any passport checks as a matter of official policy, at least according to information that appears to have come from UK Border Agency e-mails. The internal UKBA documents show that immigration and customs staff were instructed not to meet passengers arriving on private charter flights, including executive jets, as part of a so-called light touch targeted approach to border checks that was adopted this summer without, as far as I am aware, the information being put into the public domain.

These e-mails from the UKBA also reveal the extent to which full passport checks on European passengers were scaled back under the limited pilot scheme authorised by the Home Secretary on 28 July. I have to say that this is a very worrying state of affairs. In the context of the cuts that have taken place in the UKBA budget, it suggests that the UKBA is having great difficulty in carrying out its functions effectively. Essentially, since the Government came to power, a number of additional responsibilities have been placed on the UKBA at the same time as the huge reduction in its budget. No wonder we have reached such a difficult situation. The point that I put to the noble Lord, Lord Henley, is that this exposes general concerns about the operation and effectiveness of terrorism prevention measures, which is why I commend Amendment 44A to the House.

I return now to a group of amendments moved in Committee by the noble Lord, Lord Carlile. The noble Lord is not able to be with us this afternoon but I am grateful to him for putting his name to my amendments. Essentially, they propose keeping the existing control order provisions for relocation—which is the central point of many of our discussions on the Bill so far—until after the Olympic Games. From a chosen date after 1 January 2013, it would be open to the Government to come back to Parliament and replace the current relocation provisions with the provisions in the Bill, which would remove relocation subject to the emergency legislation that is also in the Bill.

The evidence given by the Deputy Assistant Commissioner to the Public Bill Committee in the other place was quite persuasive on the reason for and effectiveness of the use of control orders. The decision in the case of CD earlier this year was made after the Government argued, in the interest of national security, for a relocation component in CD’s control order. I remind the noble Lord, Lord Henley, that in Committee the noble Lord, Lord Carlile, asked if the Government had changed their mind about CD and, if so, why. If they have not changed their mind, why are they bringing the Bill before us?

On timing, is it really sensible to remove the relocation provisions at the current time? The Olympics are almost upon us. The noble Lord will know of reports in the media of US concerns about Olympic security. I fully accept that the Government have stated that this has not been reported accurately, but there is no denying the challenge facing us. My amendment does not seek to detract from the essential point of this legislation. All it does is keep the existing exclusion order provisions until after the Olympics. At that point, if the Government are satisfied that they no longer need the provisions, they merely have to bring an order to Parliament and the provisions in the Bill will take over. If I may so, it is a pretty good offer. It allows the Government to continue with these provisions over a particularly challenging time but does not undermine what they are essentially seeking to do. The noble Lord was not very warm towards these amendments in Committee. Let us hope that he is a little warmer to them at Report. I beg to move.

[Lord Pannick]

I support the Government in their decision not to include the relocation power in the Bill. The speech of the noble Lord, Lord Hunt of Kings Heath, was notable for what he did not say about relocation powers. He did not mention the central feature of such a power, which makes it particularly intrusive and particularly damaging to the life of the individual who is the subject of it as well as to the lives of all members of their family. That is why such a measure should surely only be available if the Government conclude that it is truly necessary to protect national security. My understanding is that they do not, as the Minister made clear in Committee. I support them in that.

[Lord Faulks]

I agree with what the noble Lord, Lord Pannick, said. I understand the reasons behind this change, yet I have some sympathy for what the noble Lord, Lord Hunt of Kings Heath, said. It is reasonable to ask for reassurance about what will be a massive event with security implications. I am sure that the Minister will answer that query. I wonder if there is also an issue in relation to the transition from control orders to TPIMs at the end of this year, as the 28-day transitional period will fall over Christmas and new year. I would be grateful if the Minister would provide some reassurance that the police will be able to manage this transition.

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15: Clause 3, page 1, line 16, leave out “the Secretary of State reasonably believes that”

[Lord Pannick]

My Lords, with the consent of the noble and learned Lord, Lord Lloyd of Berwick, I shall speak to Amendment 16, which is in my name and the name of the noble Lord, Lord Macdonald of River Glaven.

A TPIM notice may be issued under the Bill by the Secretary of State where she reasonably believes that an individual is or has been involved in terrorism-related activity. Amendment 16 seeks to substitute a test of balance of probabilities. The argument in favour of this amendment is very brief. If the Secretary of State is not satisfied on a balance of probabilities that an individual is involved in terrorism-related activities, surely there is no justification for taking these exceptional legal measures against him.

I asked the Minister on the first day in Committee, at cols 312 to 313 of Hansard, whether there would be any impediment to national security if the balance of probabilities test were to be adopted. The Minister did not suggest that any such conclusion had been reached in any of the reviews that had been undertaken. I remind your Lordships also that on the first day in Committee, at col. 301 of Hansard, the noble Lord, Lord Carlile of Berriew, with his extensive experience, said that he would have no difficulty if the balance of probabilities test were to be the test adopted in the Bill. I hope the Minister will be able to accept the amendment.

[The Deputy Speaker (Baroness Harris of Richmond)]

My Lords, I must tell the House that if Amendment 15 is agreed to I cannot call Amendment 16 by reason of pre-emption.

--- Later in debate ---

[Lord Henley]

I am just wondering whether the Opposition want to comment on this matter.

It is very important to start by reminding the House what we have under control orders, what we are proposing and what the amendment proposes. Under the control orders, the standard of proof was a “reasonable suspicion” by the Secretary of State. We considered this, as your Lordships are well aware, in the counterterrorism review, and it was concluded that it was necessary to raise the test of involvement in terrorism-related activity from “reasonable suspicion” to “reasonable belief”. Reasonable belief is considerably stronger than reasonable suspicion, as my noble and learned friend Lord Mackay has said. We have raised that standard, as is right and proper. It will provide an additional safeguard, and is consistent with the approach taken in the Terrorist Asset-Freezing etc. Act 2010.

It is obviously a matter where we have to consider proportionality and the appropriate balance. Again, I have to weary the House by stressing the need for that balance. We consider that a change to reasonable belief will not be prejudicial to national security. It is right that the Secretary of State should be able to take action to protect the public in circumstances where she reasonably believes that an individual has been involved in terrorism-related activity and the measures are necessary. I was grateful for the support of my noble and learned friend in this matter.

It was right to raise the standard of proof to reasonable belief, but we do not believe that it is necessary to go as far as a balance of probabilities, which might be a more appropriate action if this amendment had been considered at the same time as the first amendment we debated and if this were a matter for the courts to decide. As it is, this is a matter for the Home Secretary to decide, and we believe that this is the right action and that a move to a balance of probabilities would provide the wrong balance for the main TPIM regime in terms of ensuring that the public will be protected.

My noble friend Lady Hamwee went on to mention the enhanced TPIM Bill. That is a different matter where we are obviously considering much more draconian measures should they ever, sadly, be necessary. That is something that will be considered in due course by this House and another place as part of the scrutiny of the draft legislation. For this Bill, we believe that getting the balance right means sticking with reasonable belief, which is a considerable improvement on reasonable suspicion. I hope, therefore, that the noble Lord, Lord Pannick, will feel able to withdraw his amendment on this occasion.

[Lord Pannick]

My Lord, I do feel able to withdraw this amendment. I do so in particular because the noble and learned Lord, Lord Mackay of Clashfern, tells the House that reasonable belief, in the circumstances, is a stronger test than balance of probabilities. I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

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Moved by

[Lord Pannick]

53: Clause 31, page 21, line 35, at end insert—
“( ) This Act expires at the end of the period of 1 year beginning with the day on which it commences.
( ) The Secretary of State may, by order, revive the Act if a draft of such an order is laid before and approved by an affirmative resolution of both Houses of Parliament.
( ) An order under this section expires a year after the day on which it is made.
( ) An order made by the Minister under this section is to be made by statutory instrument.”

[Lord Pannick]

My Lords, your Lordships have come to the final amendment on Report. Amendment 53 in my name and in the names of the noble Baroness, Lady Hayman, and the noble Lord, Lord Hunt of Kings Heath, would require an annual review of this legislation in Parliament as is currently the case with control orders.

Our debates at Second Reading, in Committee and today on Report have confirmed that the Bill addresses a fundamentally difficult problem for a free society, which is afflicted by the scourge of terrorism. The Bill, regrettably but necessarily, confers powers on the state to impose substantial restrictions and detriments on persons suspected of involvement in terrorism but against whom no proceedings are brought in the criminal courts. These orders will be imposed by the Secretary of State as an administrative matter, given that your Lordships rejected the amendment proposed by the noble and learned Lord, Lord Lloyd of Berwick. On any view, these are exceptional measures in a free society.

It is vital that the continuing need for such exceptional measures be examined every year. This will serve three important purposes. First, it will impose a discipline on Government. Civil servants and Ministers will need every year to consider the continuing case for the provisions and they will need to defend them in Parliament. Secondly, this will provide a means by which the continuing need for the measures can be explained to the public every year, and in particular to those sections of the community that are doubtful as to the need for the measures and their fairness. Thirdly, of course, it will give us—Parliament—an opportunity to express our view every year as to whether the measures continue to be justified. Both your Lordships’ Constitution Committee, of which I am a member, and the Joint Committee on Human Rights have supported the amendment. Indeed, your Lordships’ Constitution Committee in its Report questioned whether it is constitutionally appropriate not to have annual reviews of what it described as a scheme of “extraordinary executive powers”.

In Committee on 1 November—I refer to Hansard cols. 1131-1132—the Minister made three main points. First, he said the Bill contains adequate protection because it provides for a sunset clause after five years. However, 2016 is a long way away, and annual reviews are needed for all the reasons I have given. Secondly, the Minister said the Bill is the product of detailed scrutiny and has struck the right balance in its substantive provisions. The point is that the Bill contains exceptional measures, the need for which will depend on the nature and extent of the threat posed at any particular time. However confident noble Lords may be that the contents of this Bill strike the right balance, this is a context where annual scrutiny is essential. Thirdly, the Minister emphasised that the Secretary of State has power under Clause 21(2) to repeal the powers. However, that is no substitute for an annual obligation on Ministers to come before Parliament so that we can debate, and Ministers can explain to us and to the wider public, whether these wholly exceptional measures are still needed. I beg to move.

[Baroness Hayman]

My Lords, the noble Lord, Lord Pannick, has spoken with his usual clarity and force and that means I can be very brief. It was the issue of time limiting the provisions of the Prevention of Terrorism Act 2005 that six years ago brought me into conflict with my then own—and then government—Front Bench. I am delighted that the noble Lord, Lord Hunt of Kings Heath, has put his name to the amendment. I have to say, however, that like the noble Lord, Lord Newton, I was disappointed at his attitude on Amendment 1. He invoked the principle of consistency. I think he ought to be careful about that when we review this particular amendment, given that the Labour position then on time limiting was consistently to oppose any form of time limiting on the 2005 Act until two thumping defeats in this House and some fairly vigorous ping-pong.

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[Lord Henley]

My Lords, the noble Lord said it for me. All I am saying is that the Bill can be withdrawn by my right honourable friend, should she so wish. Those powers are set out in the Bill.

[Lord Pannick]

My Lords, I am disappointed by the Minister’s response, although I admire his powers of advocacy in what I regard as a hopeless cause. This is an exceptional Bill. I am sorry that the Minister feels unable to respond to the wisdom and experience of other noble Lords who have spoken in the debate. The noble Baroness, Lady Kennedy of The Shaws, spoke of eternal vigilance. I hope that your Lordships will at least agree that annual vigilance is essential in relation to this Bill. I wish to test the opinion of the House.

UK Border Agency

Lord Pannick Excerpts

Monday 7th November 2011 Lords Chamber

[Lord Henley]

My Lords, I again make it clear that these are only allegations at this stage. The individuals have only been suspended—two of them only on a precautionary basis. We will have to wait for the results of the independent inquiry. As to staff levels, I do not accept there has been a misdirection of staff in these matters. It is very important we use staff in the best manner possible. We all know that we have to reduce the size of the United Kingdom Border Agency. Over the spending review period it will have to lose some 5,000 or so posts. That is the nature of things when we have to deal with the cuts that we are faced with—and we know why we are faced with them.

We will make sure, as far as possible, that the staff are used in the best possible way. That was one reason behind a pilot of this sort. The initial report from the pilot seemed to indicate that it was doing rather well in terms of the increased numbers of people whom it was catching. Obviously we will have to wait for the result of John Vine’s inquiry.

[Lord Pannick]

My Lords, does the Minister accept that border controls were relaxed without ministerial authority because of the unacceptably long queues at ports of entry? If it is the case, as the Statement asserts, that,

“there is nothing more important than the security of our border”,

surely it should be the highest priority of this Government to ensure that the border agency employs sufficient staff to ensure that full checks can be carried out at all ports of entry without the unacceptable delays that cause the need for such measures to be adopted.

[Lord Henley]

My Lords, the noble Lord would not want me to speculate on why certain individuals are alleged to have relaxed the rules beyond what the Home Secretary authorised in the pilot. That is the point of the investigation being mounted by John Vine. We look forward to that investigation in due course. I do not accept his second point that we have necessarily to maintain United Kingdom Border Agency staff numbers at the precise level that they have been for some time. The noble Lord will know that the numbers went up quite considerably when the Border Agency was created a few years back with the merger of a number of different agencies. We now have to reduce it in size but we will make sure that staff are deployed in precisely the right manner. That matter, too, will be covered by the investigation.

Terrorism Prevention and Investigation Measures Bill

Lord Pannick Excerpts

Tuesday 1st November 2011 Lords Chamber

[Baroness Hamwee]

My Lords, the noble Lord, Lord Hunt, says that relocation has been very useful in disrupting terrorism activity. The problem I have is that I do not know and I do not know whether he knows. He may well believe that that is the case, but I am not sure that any of us really knows. That has been a difficulty throughout the debate on the Bill.

I have a couple of points on the drafting of Amendment 61. It seems to me that it slightly muddles accountability. Is it not for the Home Secretary to take the decision on the resources and to take responsibility for what resources are applied, rather than it being an arrangement with the terrorism co-ordinator who, I take it, is the co-ordinator within the Metropolitan Police? I am slightly concerned that the amendment dilutes the responsibility of the Secretary of State. The terrorism co-ordinator of course has a role in this. We have all heard senior police officers say that they will do what they can within the resources provided to them, and they are very cautious about saying that they have enough resources.

My second point is to ask whether it is possible to identify precisely the right resources and deploy them. That could well be something of a moving feast; the resources required will vary from time to time. I of course understand the concerns that lie behind the noble Lord’s amendment, but I am not sure whether it is a practical way of satisfying us all and, indeed, the public.

[Lord Pannick]

My Lords, I am assuming that the Government are satisfied that the available resources are sufficient to maintain security in this country. If that is not the case, it would be very troubling indeed.

--- Later in debate ---

[Lord Pannick]

My Lords, I, too, support the amendment. I am rather more optimistic that it will do a great deal of good. I agree with what has been said by the noble Lord, Lord Rosser, about the need for an annual review because of the exceptional nature of these powers, and because of the need for Parliament to have the opportunity to consider such matters annually. But there is a further factor. An annual review will surely impose an important discipline on the Government, and this is an area where we inevitably need to trust the Government. It will require Ministers periodically to consider the need for these measures, what they can say to justify them in parliamentary debates and whether or not these measures need an amendment. This is an important discipline, particularly in a context where the factual circumstances that are said to justify these exceptional measures are not going to remain static for as long as the next five years.

[Baroness Kennedy of The Shaws]

My Lords, I support the amendment. Unlike the noble and learned Lord, Lord Lloyd, I do not think it is pointless. We should always remind ourselves that emergency measures have a way of seeping into the legal system as a whole. We have learned that over time. Often, things that are introduced as emergency measures end up remaining on the statute book for far too long. The fact that we come together and annually review a matter—even if we do not manage to persuade the Government—does mean that the matter is before us, and we are still talking about something that is being used as an exception to the rule. I therefore urge those who are listening to see why this is important, and that we do have the annual review that we have always had in the past.

Terrorism Prevention and Investigation Measures Bill

Lord Pannick Excerpts

Wednesday 19th October 2011 Lords Chamber

This is an unjust measure. It offends against the traditions of our common law; it offends against the evolutionary history of our constitution; it offends against the doctrine of human rights; it offends against the basic principles of justice in this proud country. I support the amendment.

[Lord Pannick]

My Lords, Amendments 17, 42 and 43 in this group are in my name.

First, I would like to say that I support everything that has been said about their amendments by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lords, Lord Goodhart and Lord Morgan—although I have not known the noble and learned Lord, Lord Lloyd, for quite as long as I have known the noble Lord, Lord Goodhart. I support them because their amendments are designed to ensure that the imposition of a TPIM notice is a judicial act, and not an administrative act. If a restriction on basic liberty of this sort is to be imposed on British citizens because of allegations of wrongdoing, and it is not to be a part of the criminal justice process, then surely the procedure must contain as much of the rule of law as is possible.

When opening the debate at Second Reading, the Minister said at column 1137 that the Government’s approach to balancing civil liberties and national security in this context is that the Bill should go no further in limiting people’s rights “than is absolutely necessary”. That was the test he laid down, and it seems to me that that is the right test. However, if we are going to apply that test, surely it requires that the restrictions on people’s liberties are imposed only with the prior approval of a judge. If the security services cannot persuade a judge in a closed session—because that is what is going to take place—that the restrictions are needed, then surely they should not be imposed. In an urgent case, the judge would be asked to give temporary approval until the matter can be fully considered.

There was a suggestion at Second Reading that perhaps the judiciary would not want this responsibility. There are two answers to that. First, the Bill confers on the judiciary the responsibility for deciding whether a TPIM notice is appropriate at a later stage. There seems to be no difference in principle if the judiciary is instead asked to make the decision at the outset. Secondly, your Lordships should in any event have no doubt that if Parliament decides that it is appropriate to ask the judiciary to perform this role at the earlier stage, Her Majesty’s judges will perform their duty faithfully and effectively.

That is what I wanted to add on the amendments of the noble and learned Lord, Lord Lloyd. If, however, judicial control at the outset is not to be included in this Bill—which would be most regrettable—and if the imposition of a TPIM order is to remain at the outset an administrative process, then I have an alternative amendment, Amendment 17, to which the noble Baroness, Lady Hamwee, has added her name. The amendment concerns the standard of proof.

Under Clause 3(1), a TPIM notice may be issued by the Secretary of State where she,

“reasonably believes that the individual is, or has been, involved in terrorism-related activity”.

Amendment 17 seeks to substitute a test of the balance of probabilities. I would ask the Minister, in responding to this debate, to explain why it is that reasonable belief should suffice as the test to be imposed by the Secretary of State. A belief may be reasonable but wrong. Why should these sanctions be imposed on a person if the Secretary of State is unable even to be persuaded that it is more likely than not that the wrongdoing has been committed, or will be committed, by the individual concerned?

If the security services, with all the resources available to them, cannot satisfy the Home Secretary that on the balance of probabilities more likely than not an individual is involved in terrorist activities, surely there is no justification for imposing these restrictions on them. Of course, surveillance measures may well be appropriate even in relation to such a person against whom it cannot be shown on the balance of probabilities that they are involved—but that is a different matter and we are not discussing surveillance measures.

I want to speak also to Amendments 42 and 43 in this group which stand in my name. They ensure that when the court assesses the TPIM at a later stage under Clause 9, the court should form its own view on the merits and not apply a judicial review test. These amendments arise out of the concern expressed by your Lordships’ Constitution Committee, of which I am a member, at paragraphs 14 to 17 of its report. At Clauses 9(2) and 16(6), the Bill provides that when the court reviews the TPIM at the later stage, it should apply a judicial review test. In the control order context, the courts have made it very clear that they will treat the review as an appeal on the merits of the case. The Government’s Explanatory Notes accompanying the Bill accept that this enhanced level of scrutiny should also apply to the TPIMs.

The report of the Joint Committee on Human Rights, published today, also supports my Amendments 42 and 43. It says:

“The surest way to deliver the intense scrutiny that the Government says it intends is to write it explicitly into the Bill. We therefore recommend that the Bill be amended to make it clear on the face of the Bill that the review to be conducted by the courts at the review hearing is a ‘merits review’ (as opposed to a supervisory review)”.

Will the Minister please accept, as the Constitution Committee and the JCHR have proposed, that it is desirable to make it clear on the face of the Bill that at the later stage the court will be conducting an appeal on the merits, just as is the case in relation to control orders and as the Explanatory Notes state the Government intend to occur?

[Lord Phillips of Sudbury]

My Lords, my name appears with others on Amendments 1 to 4, 16 and 18 to 22. Amendment 5 stands in my name only. I accept that the Bill is warranted, but I echo the point that where in extreme circumstances—national security is a fit subject for an extremity—one departs from a fundamental freedom, it seems to be blindingly obvious that there is no less a fundamental duty to minimise that departure. I cannot for the life of me see how we do that by giving to a politician, however distinguished and assiduous, the task of making one of these—I am tempted to say draconian—orders on his or her own. That cannot be right and I echo all that has been said, in particular by the noble and learned Lord, Lord Lloyd, and by my noble friend Lord Goodhart.

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[Lord Faulks]

I agree with what my noble friend Lord Macdonald and many other noble Lords said, that we can trust the judges. As the Bill currently reads, they have the task of scrutinising the imposition of measures on judicial review principles. Experience and the dicta of judges suggest that they will be particularly rigorous in this. This area is not generally considered one where Ministers are permitted quite the same sense of discretion as, say, on an issue of economics, but it is one where judges really can get in among the detail and form a view of a matter. They are only too conscious of the potential limitations of closed hearings and special advocates, and the potential risk that these present to those who are potentially the target of these measures.

On the amendment proposed by the noble and learned Lord, Lord Lloyd, I acknowledge his distinguished pedigree and the pedigree of the amendment, which I think goes back some time to the original control orders, but I respectfully suggest that it is inappropriate. I suggest that the obligation rests on the Home Secretary to protect the security of citizens. It rests upon her shoulders and it is a heavy burden. If one needs to find any emphasis in this from the Human Rights Act, Article 2 provides an obligation on the part of the public authority, the Government, to take measures to protect the life of citizens. Those measures will include appropriate measures to prevent outrages of this sort—that is of course what this Bill is concerned with. In this Bill she has to reasonably believe that an individual is involved in terrorist activity and reasonably consider that a TPIM and its appropriate measures are necessary. That is an exercise that she, with that heavy burden placed upon her, should perform.

As I understand it, this amendment is born out of an outright opposition to TPIMs and their predecessors, control orders. The courts have minutely examined these control orders in a number of cases. They have had various degrees of enthusiasm about them and about the closed hearings and the special advocates, but they said that they could operate unlawfully or they could operate satisfactorily—it would depend on the individual cases. However, they have survived what was a wholesale attack on them as a measure. It was not decided by any court that they were by definition contrary to the rule of law. It was acknowledged by judges in a number of cases that the security of the nation was a potent argument in favour of such orders.

It was not suggested in any of those judgments that it was better for the courts to have the decision in the way that this amendment suggests. I doubt that the courts would really relish such a task. Their job, traditionally, is to scrutinise, to examine the legality of the decision, but not to take upon themselves an essentially executive decision. I suggest that the Secretary of State—knowing, as she will, that her reasonable belief will be subjected to close scrutiny by a process which, correctly, places a heavy emphasis on the freedom of the individual—will exercise that power extremely responsibly, and I suggest that the balance should remain as it is in the Bill.

Finally, I will say something about the question of the standard of proof. If there is a fundamental shift in the way that power is to be exercised, as is suggested by the amendment, and the matter comes to the courts to decide, then it may be that the standard of proof should be the balance of probabilities. That is the test that has evolved over the years to decide civil matters generally. There have been recent decisions that suggest there is no shifting standard, but it remains the standard. It has developed pragmatically because there have to be decisions in civil cases to be distinguished from the higher standard in criminal cases.

However, as I understand the amendment proposed by the noble Lord, Lord Pannick, should the power remain with the Home Secretary, she should not have the decision based on reasonable belief but on balance of probabilities. I respectfully say that that balance of probability test may be appropriate where there is a judicial process to be undergone, but where we are talking about an executive decision, reasonable belief is much more appropriate than the process of coming to a conclusion on a 51:49 basis, which is far more suitable for a judicial determination other than the decision which at the moment would—and should—rest with the Secretary of State.

[Lord Pannick]

Under the Bill as it is at the moment, the judiciary are involved at the later stage. If they are to conduct a merits review, as the Government intend, they will apply the same test as to standard of proof as the Minister has applied in making the order. If the noble Lord accepts that balance of probabilities is suitable as a judicial test at the end of the process, surely the Secretary of State must apply the same test at the beginning of the process.

[Lord Faulks]

What I endeavoured to say was that the balance of probabilities would be appropriate were the courts to be taking that initial decision in place of the Secretary of State, which I understand to be the burden of the amendment put forward by the noble and learned Lord, whereas I understand that the suggestion made by the noble Lord, Lord Pannick, is that the initial stage and the decision to be taken by the Secretary of State should be on the balance of probabilities, and there I suggest that the current test is more suitable.

--- Later in debate ---

[Lord Henley]

My Lords, I am sorry if I misunderstood my noble friend; I am a simple soul in these matters. However, my understanding was that he had suggested that this measure was outside the rule of law. What I was trying to get over is that I do not accept that point. The Bill is going through a proper process and after it has been enacted, by the will of Parliament, it will be subject to review by the courts. That is the important point to remember.

The group of amendments before us deal with four major points which I will deal with in order. The first one concerns the very simple point of whether the courts should make these orders rather than the Home Secretary. Secondly, we heard the arguments about where the standard of proof should be. A subsidiary part of that was in the amendments of the noble Lord, Lord Pannick, who said that even if we did not accept the first part—that is, shifting the argument to the courts—the standard of proof for the Home Secretary’s decision should be changed. Thirdly, we heard the arguments of the noble Lord, Lord Pannick, set out in Amendments 42 and 43, dealing with the full merits review. Fourthly, there were arguments about the time limit and how long the TPIM orders should last—whether one year, two years or beyond. I should like to deal at some length with all four points and I hope that I can get them in the right order. Perhaps my notes can assist me in that. It is important that I set out my points.

I should deal first with the proposal for court-paid TPIM notices. I do not agree, as I made clear at Second Reading, that judge-imposed TPIMs represent the right approach for the new regime. I am grateful that on this at least, I have the support of the Opposition Front Bench. They might not like other parts of the Bill but I got the distinct impression that the noble Lord, Lord Rosser, agreed with me on that issue. Our view is that it is appropriate that TPIM notices should be imposed by the Home Secretary. As the noble Lord, Lord Rosser, put it, she is responsible for national security and is best placed to determine what is necessary in the interests of national security, with the benefit of the broader knowledge of the threat picture that sits with her role as Home Secretary.

I emphasise that this is consistent with the approach taken to other executive actions in national security cases, and decisions based on sensitive material. This includes—an example given by my noble friend Lord Carlile—decisions to exclude, deport or deprive people of citizenship on the basis of national security considerations. It is also consistent with the approach taken on decisions to freeze terrorists’ assets—the new legislation which this House approved only last year. It is also consistent with the current provisions under which all control orders have been made.

Noble Lords will appreciate that this is the view not just of the Executive; it is also consistent with views expressed by the courts on the roles properly played by the Home Secretary and the courts in national security matters. The Court of Appeal explicitly recognised in its 2006 judgment, in the case of the Secretary of State for the Home Department and MB, that,

“the Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect”.

In the same judgment, the Court of Appeal also noted that the principle that the courts should pay deference to the Executive on matters relating to state security has long been recognised by the courts in this country, including the Law Lords, and the European Court of Human Rights. This supports the argument that the proper division of responsibilities in the field of national security is for the Home Secretary to make the decisions but for the judiciary to review those decisions, and to review them rigorously, as it always does.

The TPIM Bill provides for extensive, multi-layered court oversight and review of the Home Secretary’s decisions. This includes a requirement for court permission before imposing a TPIM notice, an automatic full review of every case in which a TPIM notice is imposed, and the right of appeal against the Secretary of State’s decisions in relation to, for example, requests to vary the measures imposed or revoke the notice. We think that this apportionment of roles best serves the interests of national security while ensuring that the civil liberties of those who are made subject to TPIM notices are properly protected.

I turn now to the question of the standard of proof. Again, the noble Lord has suggested that his judge-made TPIM notices should be made on the balance of probabilities. The noble Lord, Lord Pannick, offered his alternative in Amendments 42 and 43 by suggesting that the same should be imposed on the Secretary of State, were she to be the one making that decision. Although the approaches are different, the question that we need to raise is the appropriate test for imposing a TPIM notice.

The issue of a proper test for the preventive powers now included in the Bill was carefully considered as part of the counterterrorism review conducted by the Home Secretary and the Home Office. The conclusion reached was that it was right to raise the threshold for imposing a TPIM notice to “reasonable belief” from the test of “reasonable suspicion” required to make a non-derogating control order—which is the only kind that has ever been made. I am grateful to my noble friend Lord Carlile for reminding the House that no derogating orders have been made.

The decision was made as part of that review that the standard should be raised to reasonable belief from the test of reasonable suspicion. We believe that raising the threshold to reasonable belief provides an additional safeguard in the new regime compared to the current control order regime. As we made clear when we announced the outcome of the review in January, it is also consistent with the approach that we have taken to the provisions relating to terrorist asset freezing in the Terrorist Asset-Freezing etc. Act 2010.

The TPIM regime is a preventive regime intended to protect the public from the risk of terrorism. In reaching the decision to move to reasonable belief, we therefore considered whether changing the threshold in that way could put the public at risk. Our conclusion was that it would be unlikely that any of the cases where we would want to impose a TPIM notice would fail to meet the higher test of reasonable belief.

We are therefore satisfied that the change to reasonable belief is unlikely to be prejudicial to national security. At the same time, that represents an increase in the protection for the civil liberties of the individuals concerned. Those favouring the amendment take the view that the threshold should be further raised to “the balance of probabilities”. In that review, we considered that option. However, we concluded that a move to the balance of probabilities for the main TPIM regime would not give us the right balance to ensure that the public will be protected. Again, I stress that it is a question of getting the balance between ensuring the protection of the public and protecting the liberties of individuals.

[Lord Pannick]

Can the Minister tell the Committee a little more about why the balance of probabilities test would not provide sufficient protection for national security?

[Lord Henley]

The test that the noble Lord proposes, as is made clear by the Joint Committee on Human Rights report, is a slightly tougher test than what we suggest, which is that of reasonable belief. If there is a slightly tougher test, that obviously implies that there would be a greater risk to security. We have increased the test from reasonable suspicion to reasonable belief. We do not believe that we should increase it any further. I hope that the noble Lord will accept that argument; but I see that he does not, and I give way yet again.

--- Later in debate ---

[Lord Pannick]

I am simply trying to establish whether an assessment was made that a balance of probabilities test would be positively damaging to national security in this country. Was such a conclusion reached?

[Lord Henley]

I made clear that, as part of that review, we considered moving to that test. I was not in the Home Office at the time, so I do not know what precise consideration was given, but in the end the decision was taken that, yes, we will raise the standard from reasonable suspicion to reasonable belief, but that to take it beyond that would create risks. A decision had to be made on where the appropriate balance should be, and that is why we came down in favour of reasonable belief rather than a balance of probabilities.

I hope that the noble Lord can accept that, but I can see that it is a very difficult one and we will no doubt discuss it in later stages of the Bill. We believe that reasonable belief should deal with the questions raised by the noble Lord. The same applies to his Amendments 42 and 43 when talking about the decision being made by the Home Secretary herself. Again, I noted what my noble friend Lord Faulks had to say on that matter. Possibly they were better words for use with the Home Secretary’s decision rather than when talking about a judicial process. Again, we feel that we have the balance about right.

I turn now to the question raised on the full merits review in the noble Lord’s Amendments 42 and 43, which I mistakenly said were his amendments on the alternative, but that is covered by his Amendment 17, so I correct myself at this stage. His Amendment 42 specifies that a full court review of a TPIM notice under Clause 9 must be “on the merits” and would delete the subsection of that clause which specifies that,

“the court must apply the principles applicable on an application for judicial review”.

As the noble Lord explained, these amendments are designed to ensure that the review of an imposition of a TPIM notice provides a full merits review. He articulated the view of the Constitution Committee—yet another committee that has been looking at this—in its report on the Bill: that it should be clear, on its face, in cases concerning TPIM notices. The function of the court is not limited to ordinary judicial review. Such a constitutionally important matter should not be left for clarification in the Explanatory Notes. Similarly, the noble Lord, Lord Hunt, made it clear that the purpose behind his intention to oppose the question that Clause 9 stand part of the Bill is to facilitate consideration of this same issue.

The Government have been clear that judicial oversight of the process of imposing measures must be a key feature of the new regime. The involvement of the courts is an important safeguard for the rights of the individual, and the Bill takes a comprehensive and multilayered approach to this. As the Explanatory Notes explain, the case law relating to control orders is subject to a particularly intense level of review by the High Court. It is absolutely the case that the Government intend for the same intense level of scrutiny to be applied in court reviews of TPIM notices under Clause 9. All noble Lords will be aware that the courts have not been slow in finding against Home Secretaries of whatever regime for many years in control order litigation, and have used their powers to quash control orders or to give directions to the Secretary of State as appropriate under the current system of judicial review principles, as interpreted by the Court of Appeal in the case of MB.

We are of the view that the courts will apply relevant case law to TPIM proceedings as appropriate. That will, of course, include the case law on the type of review undertaken by the courts in these kinds of cases. In summary, in relation to the full substantive review of each control order, the Court of Appeal ruled again in MB that the High Court must make a finding of fact as to whether the reasonable suspicion limb of the statutory test for imposing a control order is met, and must apply intense scrutiny to the Secretary of State’s decisions on the necessity of each of the obligations imposed under the control order while paying a degree of deference—

--- Later in debate ---

[Lord Pannick]

My Lords, I offer the Government my support on this issue of relocation. The noble Lord, Lord Carlile, expressed concern that political considerations, as he put it, are trumping national security concerns. I suggest to the noble Lord and the Committee that the issue is more difficult than that. The way in which the noble Lord puts it ignores a vital dimension. The reality is that relocation is a particularly intrusive measure to impose on the subject. It is strikingly damaging to the personal life of the individual and his or her family.

[Lord Hunt of Kings Heath]

Will the noble Lord address the evidence given by the deputy assistant commissioner, which I know he will have read, which pays tribute to the effectiveness of that exclusion order?

[Lord Pannick]

I am coming to that, but let us at the outset recognise the impact of a relocation measure. If one is going to adopt a measure or power of this sort, one needs to recognise the striking impact that it has on the spouse and the children. A measure that amounts to internal exile of a person needs a compelling justification.

[Lord Carlile of Berriew]

I know that the noble Lord eats legal authorities for breakfast, probably literally sometimes. I would just like him to give his comments on the cogent judgment and reasoning of Mr Justice Simon in CD, the case to which I referred, in which the judge took the matters the noble Lord has just mentioned into account and reached a considered conclusion. Does he say that the judge reached the wrong conclusion, giving undue proportion to some of the factors he was weighing?

[Lord Pannick]

Of course, the learned judge was considering the exercise of the powers that are contained under the control order regime. The Committee and the House have to consider what is a fair balance—this is the test that the Minister rightly has repeatedly propounded—between national security and the liberty of the individual.

[Lord Carlile of Berriew]

I promise not to intervene on the noble Lord’s speech again but he is ducking the question. Does he not accept that Mr Justice Simon in that case, having weighed up the facts, came to the conclusion that the safety of the state and of the public was better protected by relocation and that it was proportionate to the interests of CD? If so, should we not keep the situation as it was then?

[Lord Pannick]

The noble Lord can intervene as many times as he likes. I welcome his interventions. My answer to his point is twofold. We can always add more and more intrusive measures and protect ourselves more effectively from the perspective of national security. The question is: what is a fair balance? I am assuming that the Government, not just concerned about a particular individual case but looking at these issues as a whole, have concluded that relocation would undermine the fair balance because of its particularly intrusive nature and that the combination of the measures contained in the TPIM and the surveillance measures that can always be imposed on an individual who is not relocated will effectively protect the public. It is true that there is a financial cost, which is the point made by the noble Lord, Lord Hunt. Does the noble Lord wish to add to that?

[Lord Hunt of Kings Heath]

The noble Lord is being very kind in accepting all these interventions, but this is an important point. If the Government were really confident, they would not be producing a draft emergency Bill or having the provision in this Bill to allow the Home Secretary in an election to use the enhanced measures. I am afraid the fact is that in their heart, and particularly in the noble Lord’s own department, they know that the exclusion provisions are very important. I am sure that, in the future, they are going to have to use the emergency provisions if this Bill goes through. I do not think that the Government have that confidence, and that is the worry.

[Lord Pannick]

We will hear from the Minister in relation to that in a moment. I am satisfied that a sensible and fair way of dealing with what is a very difficult issue, because of the primacy of national security and the particularly intrusive nature of a relocation power, is for the Government to satisfy themselves, as I assume they have done, that relocation powers are not needed. However, given the importance of this power, they recognise that it is sensible to have reserve powers available which, God forbid they are ever needed, can be brought into force. I support the Government on this.

[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.

--- Later in debate ---

Moved by

[Lord Pannick]

38: Clause 8, page 4, line 26, at end insert—
“( ) Directions under subsection (5) must include a direction that the Secretary of State shall provide the individual on whom the measures are imposed with sufficient information about the allegations against him or her to enable him or her at the review hearing to give (if possible) effective instructions to his or her representatives and information to the special advocate in relation to those allegations.”

[Lord Pannick]

My Lords, I shall speak also to Amendment 49. These amendments concern the disclosure of information to a person who is the subject of a TPIM. As the Committee knows, in the AF case in 2009 the Appellate Committee of your Lordships' House considered what the principles of fairness require as to the disclosure of information in the context of control orders. I repeat my declaration of interest—I represented AF in the Appellate Committee.

The Law Lords decided that a control order is invalid as a matter of law unless sufficient of the case against the individual is disclosed to him so as to enable him to give instructions to his lawyers to answer the allegations against him. If the Home Secretary is not prepared to disclose that much, the control order cannot be maintained. Disclosure to the special advocate does not suffice, said the Law Lords, because the special advocate cannot of course disclose the information to the subject of the order and obtain a response from him.

In the recent Supreme Court case of Tariq v the Home Office, the noble and learned Lord, Lord Hope of Craighead, explained the principle of law at paragraph 81 of his judgment. He said that in AF,

“the fundamental rights of the individual were being severely restricted by the actions of the executive. Where issues such as that are at stake, the rule of law requires that the individual be given sufficient material to enable him to answer the case that is made against him by the state”.

The TPIM, like the control order, involves severe restrictions on the personal liberty of an individual. Therefore, a TPIM is going to be unlawful unless the AF principle is satisfied. This was addressed in today’s report of the Joint Committee on Human Rights. At paragraph 1.20, it addressed the Government’s argument that the AF disclosure obligation,

“does not necessarily apply to all TPIMs because some will not be sufficiently ‘stringent’ to engage Article 6”,

of the human rights convention. The Joint Committee points out:

“This is an argument that the Government has already made and lost”,

in the context of control orders,

“in relation to ‘light touch control orders’”.

The Joint Committee expressed the view, with which I agree, that the AF disclosure obligation applies in all TPIM cases, because they will all involve severe restrictions on personal liberty. I should add that if the TPIM is less stringent, it is likely to be because the subject of the order is not one of the most dangerous individuals and there will therefore be a weaker security argument for non-disclosure of the essence of the case against such an individual.

Disclosure to the individual of the case against him is not just required by law, but is also of enormous importance as a matter of principle. Your Lordships will recall our earlier debate when one of the reasons given by the noble Lord, Lord Carlile, in his objections to the proposal of the noble and learned Lord, Lord Lloyd of Berwick, that the imposition of the TPIM should be a judicial process, was precisely that the subject is protected by the important disclosure obligations that will be imposed on the Secretary of State. The noble Lord emphasised that.

Amendment 38 would require disclosure of the essence of the case against the individual at the directions hearing. Amendment 49 would make clear that the rules of court must provide for such disclosure.

I have two questions for the Minister. First, does he accept that the AF principle requiring disclosure of the essence of the case against the subject applies in the context of a TPIM, as it does in the context of a control order? Secondly, does he agree that it would be preferable for the matter to be stated in the Bill, to avoid the expensive, protracted litigation which will otherwise inevitably occur?

The Joint Committee's report, which I mentioned, gave its support at paragraphs 1.21 and 1.23 to my two amendments. The Joint Committee added the valuable point that the disclosure obligation should be at the earlier stage of the preliminary hearing, to ensure that the subject of the TPIM can instruct his lawyers—or indeed give information to the special advocate—before the directions hearing. The noble Baroness, Lady Hamwee, has tabled drafting amendments to my two amendments. I shall certainly want to consider them and the suggestion of the Joint Committee before Report but, for today's purposes, I welcome the opportunity to hear the Minister's response to my amendments. I beg to move.

Amendment 39 (to Amendment 38)

Moved by

--- Later in debate ---

Amendment 39 (to Amendment 38) withdrawn.

[Lord Pannick]

I am grateful to the Minister for his careful response and to all noble Lords who have spoken in this short debate. I agree with the observation of the noble Lord, Lord Carlile, on the need for certainty in this and allied areas of the law. With regard to the amendment of the noble Baroness, Lady Hamwee, to my amendment, by talking about “if possible” I intended to refer not to the possibility of disclosure but the possibility of the subject of the order providing an answer. I respectfully agree with the noble Baroness that it would be wiser to omit the words, “if possible” to avoid ambiguity.

This is a simple but vital issue. Should the Secretary of State be able to impose these restrictions on an individual without telling him why? It is not just a question of fairness. Nothing is more likely to undermine public confidence in a TPIM than for the Secretary of State to make such an order without telling people why. I am sorry that the noble Lord, Lord Rosser, on the Opposition Front Bench, is not yet persuaded to support my amendment. His position, as he articulated it, appears to be at odds with the ruling in AF which makes it very clear that the duty of disclosure applies irrespective of national security concerns. I am also sorry that I have not yet persuaded the Minister that this matter should be in the Bill. I am still concerned that on a matter as vital as this, it is not good enough simply for the Bill to state that Ministers must act in compliance with Article 6 of the European Convention on Human Rights, welcome though that is. It is desirable to address the question of disclosure, which has led to enormous quantities of litigation in the past and will inevitably lead to much more litigation in the future if we do not address the matter specifically. It is highly desirable that this matter is put into the Bill in clear, unambiguous terms. We will no doubt return to this matter on Report but for the moment, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

Visas: Domestic Workers

Lord Pannick Excerpts

Tuesday 18th October 2011 Lords Chamber

[Lord Henley]

My Lords, I am not sure whether that is part of the consultation, but the consultation has been completed and we are considering the responses to it. I can give an assurance to the noble and learned Baroness that I will look at that, too, as part of that process.

[Lord Pannick]

My Lords, does the Minister agree with the conclusions of the Home Affairs Committee of the other place two years ago that,

“domestic workers are peculiarly vulnerable to abuse”,

and that,

“To retain the existing Migrant Domestic Workers visa and the protection it offers to workers is the single most important issue … in preventing the forced labour and trafficking of such workers”?

[Lord Henley]

My Lords, I accept what the noble Lord has to say about domestic workers being particularly open to abuse. That is why we want to get the right balance. However, I think the noble Lord would also agree that we need an immigration system that is fairer and more honest and commands public confidence. We want to get the right balance; that is what is behind the consultation and that is what we will be looking at in the responses.

Terrorism Prevention and Investigation Measures Bill

Lord Pannick Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Pannick]

My Lords, we are debating the Bill at a particularly depressing time for civil liberties in this country. This country has long prided itself on the protection of fundamental freedoms, both here and in other parts of the world. However, we apparently now have a Home Secretary who believes that debate about human rights—an important and serious debate on complex issues—should be so debased that the right to family life can seriously and usefully be addressed by a fable about a cat rather than by any serious analysis of the issues of law and policy. That is a matter of grave regret. I very much hope that the noble Lord, Lord Henley, who I welcome to his responsibilities, will be able to persuade the Home Secretary to take a more informed, reasonable and reasoned approach to the issues raised by the Bill, issues that, as he rightly said in opening the debate, depend on securing a correct balance between state powers and civil liberties.

The regime proposed by the Bill, like the regime under the control orders legislation, raises concerns about the rule of law in four respects, which we will need to address in Committee. I share the concerns already expressed by the noble Lord, Lord Goodhart. First, we must accept that the Bill allows for sanctions against alleged wrongdoers by an administrative procedure that is wholly outside the criminal process, which is the point that the noble Lord, Lord Macdonald of River Glaven, has just addressed. My response to the interventions is that, regrettably, one finds that constituents up and down the country do not share concerns about civil liberties when they relate not just to alleged terrorists but to alleged murderers and rapists. Nevertheless, they are important aspects of a civilised society which it is our responsibility to seek to protect. Let us remember that the fact that these matters are being addressed outside the criminal process—I understand why they need to be so addressed—arises in the context that over the past 10 years we have enacted a vast number of new criminal offences to deal with terrorist activity, many of them concerned with preparatory acts, such as possession of material for criminal purposes.

[Lord Reid of Cardowan]

It is important to clarify this. I do not think anyone was suggesting that the public view was right or wrong; what we were trying to ascertain was the public view. That was the matter of disagreement with the previous speaker: the contention that the public view was that these were very troublesome and difficult issues and that we should get rid of control orders. That was what was in dispute, not whether the public view was right or wrong.

[Lord Pannick]

I am very grateful. If the noble Lord accepts—I hope he does—that the public view on these issues is not determinative, although plainly it is important, we will not differ much, save that I suspect that in some sections of the community there is particularly grave concern about control orders. My concern is that that may well be undermining the extent to which those communities are prepared to co-operate with the police and the prosecution authorities in bringing forward evidence that is vital to secure the conviction of terrorists and information that can be used to implement the administrative process. That is my concern, and it is why I share the view of the noble Lord, Lord Macdonald, that we must not be complacent about these matters.

The noble Lord, Lord Henley, said in opening the debate that it is necessary to have the TPIM regime in those cases where prosecution is not possible. The noble Lord, Lord Howard of Lympne, eloquently supported that approach. I, of course, understand the force of that point, but we must surely accept that it is nevertheless difficult to reconcile this approach with the rule of law. It is an exception to the rule of law. Because it is an exception—perhaps a justifiable exception—it is vital that we ensure that the detailed implementing provisions in the Bill satisfy the test which the noble Lord, Lord Henley, stated at the end of his speech, and which I was very pleased to hear from him. As I understood him, the test is that the provisions must go no further than is absolutely necessary. I commend that test to the House as the right one to adopt in testing the provisions of the Bill. That is the first concern.

The second rule of law concern is that the Bill allows for the sanctions—that is what they are—to be imposed by a Minister and not by a court, albeit that the court has a reviewing role. If a TPIM procedure is appropriate outside the criminal process—I understand why it is—the rule of law surely requires that Ministers do not themselves make the initial decision on such matters as who a person may associate with and where they may stay overnight with the court confined, as it is under Clause 6(3), to determining whether the initial decision of the Minister is “obviously flawed”. Surely the role of the Minister should be to make an application to an independent judge. It should be for the Minister to produce the relevant evidence, perhaps in closed session with a special advocate, for the judge to assess. It should be for the court to decide whether the order should be made. In urgent cases, the court could no doubt apply a threshold test. We need to consider this seriously in Committee.

[Lord Hunt of Kings Heath]

My Lords, in relation to the point the noble Lord has just made, has he ascertained the view of the senior judiciary about whether they would wish to be drawn into making such decisions? There is a balance here as to whether it is more appropriate for the Home Secretary to make those initial decisions, subject to judicial scrutiny, because ultimately the Home Secretary is responsible for security issues and is accountable to Parliament. Does the noble Lord not think—and I think he is following the argument of the noble Lord, Lord Macdonald, on this—that there is a danger of moving responsibility from the Home Secretary to the courts? I wonder whether the judiciary would want to accept that responsibility.

[Lord Pannick]

The factual answer to the noble Lord’s question is no. Of course I have not asked the Lord Chief Justice about this matter, but under the Bill, it is, in any event, the responsibility of the judge at the reviewing stage to decide whether the TPIM should be maintained. The Government accept in the Explanatory Notes that that should be akin to an appeal procedure, not just a judicial review test. The judges will have that responsibility at the end of the process. It seems to me that they should have that responsibility from the outset of this process. I would say to the noble Lord and to the judges, with genuine respect, that it really is not for judges to determine what responsibility they should have in relation to this fine balance between the public interest and civil liberties. It is surely for Parliament to decide how the balance should be struck and for us to decide whether it is best struck by the courts having the role that I suggest.

There is a third respect in which the Bill offends against the rule of law. It allows for sanctions to be imposed without any proof of wrongdoing, even proof to the civil standard of the balance of probabilities. A TPIM notice may be issued by the Secretary of State where she,

“reasonably believes that the individual is, or has been, involved in terrorism-related activity”.

When he winds up, will the Minister please explain why these sanctions should be imposed on a person if the Secretary of State is unable even to show that it is more likely than not that the wrongdoing has been committed or will be committed by the individual concerned? If the security services, with all their resources, and even with the use of evidence that could not be disclosed in a criminal court, cannot satisfy the judge on the balance of probabilities that the individual is involved in terrorist-related activities, there is surely no justification for taking these legal measures against that person. Of course, surveillance measures may well be appropriate against such persons, but that is not what we are discussing in this Bill.

There is a fourth respect in which the Bill departs from the rule of law: it allows for sanctions to be imposed although the individual has no right to see the material on which the allegation is based. In the AF case in 2009, which has already been mentioned, the Appellate Committee considered how the principle of fairness under the rule of law should apply in the context of control orders. I declare an interest: I represented AF in the Appellate Committee. The Law Lords decided that a control order is invalid unless sufficient of the case against the individual is disclosed to him personally to enable him, if he can, to give instructions to his lawyers to answer the allegations against him, and if the Home Secretary is not prepared to disclose that much, the control order cannot be maintained.

The TPIM, like the control order, involves severe restrictions on the personal liberty of the individual. Therefore, it seems to me that a TPIM will inevitably be unlawful unless the AF principle—you must disclose as much as enables the person to have a proper opportunity to answer the allegations—is satisfied. Does the Minister accept that? If so, does he agree that the Bill should be clarified by stating that point clearly?

I make one final point. Like the noble Lords, Lord Hunt of Kings Heath and Lord Dubs, I think that it is appropriate, given all the matters that I have mentioned, the sensitivity of the issue and the extent to which matters will develop from year to year, that this House and the other place have the opportunity to consider these important matters every year, not only at the expiry of another five years.