Terrorism Prevention and Investigation Measures Bill

Lord Phillips of Sudbury Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, first, I thank the Minister for his careful explanation of the Bill. I would very much like to welcome him to his new portfolio and well deserved promotion, and I look forward to working with him. I echo his tribute to the noble Baroness, Lady Browning, for her stewardship of the Home Office brief. I very much enjoyed debating the—perhaps I may say—unlamented police Bill as it went through your Lordships’ House. She was a very good debater and listener who will be very much missed from the Front Bench.

The security of this country is of paramount importance and the Official Opposition would always wish, wherever possible, to support Her Majesty’s Government in their counterterrorism policies. The introduction of control orders was controversial because they can impose intrusive restrictions on individuals who in most cases will not have been convicted of a terrorism offence on the basis of closed material. We would always prefer to prosecute terrorist offences through the courts. Control orders are not desirable but I believe that they were necessary to deal with a discrete number of individuals who for one reason or another could not be prosecuted but posed a terrorist threat. The decision to introduce control orders has been vindicated through the way that the public has been protected from the risk of terrorism, but also as evidenced by the vigorous judicial process undertaken in relation to control orders.

The parties opposite, when in opposition, made a great deal of their concerns over control orders. In government, I suspect that the Home Secretary has come up against reality, but still feels obliged to introduce this Bill. It is a flawed Bill, it is a fudged Bill. It seems to owe as much to the needs of the coalition as it does to national security. Just as we see a faultline running between the two governing parties on European human rights legislation, so we see a faultline in the legislation in our debate today. On the one hand, we have the Bill, which the Government say—and the Minister repeated it this afternoon—provides greater safeguards for the civil rights of suspected terrorists. But we also have another Bill—the draft emergency Bill, which the Home Secretary will carry around in a back pocket for the inevitable moment when this Bill is found wanting. The problem with a faultline is that there can often be a gap. I hope that national security will not fall into it.

At the heart of my concern is the fear that the Home Secretary’s powers to deal with the most difficult cases are being weakened. Nowhere is that more evident than in the central issue of relocation without consent. Relocation powers have proved to be extremely useful in disrupting terrorist activity and have been regularly described by the police as one of the most effective powers that they have. How many of the control orders in force have relocation as part of them? In evidence to the Public Bill Committee in another place, Deputy Assistant Commissioner Stuart Osborne said:

“The relocation issue has been very useful for us being able to monitor and enforce at the current time. Without that relocation, and depending on where people choose to live, that could be significantly more difficult”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 5.]

The Home Secretary clearly thinks so. In May of this year, just five months ago, the Home Secretary argued in the case of CD that he needed to be removed from Greater London to protect the public from a terrorist attack. The judge in that case said:

“I have concluded that the relocation obligation is a necessary and proportionate measure to protect the public from the risk of what is an immediate and real risk of a terrorist attack.”

In July of this year, the Home Secretary said in the case of BM that relocation outside London was “fundamental” to preventing terrorist activity. In that case, BM admitted that he was committed to terrorism. The Home Secretary believes that those powers, which were needed three and five months ago, are not needed now. What has really changed in that period?

Ministers claim that they will put more surveillance in place but again, the senior representative of the Metropolitan Police, in evidence to the Public Bill Committee, said this:

“To get the resources we anticipate we need will take more than a year in terms of being able to get people trained and to get the right equipment”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 9.]

It is simply not credible that the security environment has changed so substantially in the past three or five months that the powers needed then are not needed now. Are the Government really saying to this House—in Olympic year, of all years—that the powers are needed less in the coming year than they were last year, when the Home Secretary felt that she needed to use them five times?

Of course, Ministers have already conceded that additional powers may be needed, so they have published draft emergency legislation, as the noble Lord, Lord Henley, remarked at the end of his speech. That will give the Home Secretary powers to impose what have come to be known as enhanced TPIM notices which make it possible to impose stringent restrictions on individuals, including relocation without consent. We have the rather extraordinary position of the Government saying, “We do not like control orders so we are getting rid of them, but until we do that we are going to go to the courts and argue vigorously for their use, and we will keep emergency legislation just in case this Bill turns out to be inadequate”. The Government want to go further: from a position of apparent opposition to control orders, remarkably, this Bill now contains in Clause 26 a provision that allows the Home Secretary to impose the enhanced TPIM notices which should be the subject of the emergency legislation during the period between the dissolution of Parliament and the first Queen’s Speech of the new Parliament. I suggest that if extraordinary provision such as that is needed, the Home Secretary needs it now and it should be in this Bill.

[Lord Phillips of Sudbury]

My Lords, on the noble Lord’s point about the absence of a relocation direction, does not the power to exclude a person subject to a TPIM notice from any area as specified provide a great deal of the protection that he wants? That is set out in paragraph 3 of Schedule 1.

[Lord Hunt of Kings Heath]

Why, then, my Lords, do the Government need a draft emergency Bill? It is because they consider that there may be circumstances in which the current Bill does not meet the security threat. My argument is that if the Government have to contemplate bringing in emergency legislation, it would be better to actually legislate for those provisions and allow Parliament its proper scrutiny rather than, at the time of an emergency or enhanced threat, seek to rush legislation through.

--- Later in debate ---

[Lord Phillips of Sudbury]

I am grateful to the noble Lord for giving way, but I must ask him the same question as I asked the noble Lord, Lord Hunt. Paragraph 3 of Schedule 1 states:

“The Secretary of State may impose restrictions on the individual entering … a specified area”.

The Minister can prevent someone entering London —so what is the noble Lord on about?

[Lord Harris of Haringey]

I am of course delighted to try to defend the Bill on behalf of the Minister, although I suspect that the Minister will do a very good job of that in a moment. However, my interpretation of the provision is that it is about very specific locations and particular areas—for example the Olympic park, or whatever else it might be. It is not clear that it will permit the prevention of that individual living in the city that had previously been his home. That is the point that needs to be made.

--- Later in debate ---

[Lord Phillips of Sudbury]

My Lords, as the last Back-Bench speaker, I am in the happy position of being able to rely on excellent contributions to this excellent debate by many here now. I associate myself with all that has been said by noble Lords vis-à-vis the appointment of the Minister and, indeed, his predecessor.

The few remarks I shall make are based around a sense, rather different from that of the noble Lord, Lord Morgan, that in this intensely difficult business of balancing public safety with individual liberty, this Bill reaches a reasonable outcome. There is no perfect answer. This is a balance we all grapple with, all the time, in all ages. None the less, I think, subject to one major limitation that I shall come to, that this is a reasonable outcome. Many aspects of it are arguable, and I may yet be persuadable in the debates to come, but I say that.

The noble Lord, Lord Hennessy, referred to the need to trust the security services, and I wholly agree with his quote from Karl Popper, which seems to me to be a very wise encapsulation of liberty. I think trust in the security services should go only so far. The old cliché of liberty requiring eternal vigilance is true, and the security services are overpressed and hugely pressured. I was at the meeting yesterday, which my noble friend Lady Hamwee referred to, where this young, born-and-bred Englishman told of his years under a control order with his life ruined, and for what? When the court eventually overthrew the order, the judge made extremely critical remarks about the basis upon which the order could have originally been imposed. One has to have that in mind.

Yet I fully accept that we should be proud of and grateful for the security services in this country. It is just that, in the modern age, the circumstances they grapple with are intensely difficult. The mobility and anonymity of modern life are enemies to security, and the technology that comes to our aid is also partly an abettor of some of the more gruesome plans that are hatched.

I would like to commend the House. Perhaps one should not be self-congratulatory, but it seems to me that the protection of liberty is particularly the job of this House. I do not think there is any denying that, understandably, the public are more easily persuaded in relation to public safety issues than in relation to individual liberties. We have seen examples of that quite recently, and it behoves us to recollect what the noble Lord, Lord Judd, said in an impassioned coda to his speech: human rights are not someone else's but ours. We characterise our society and culture by these great entrenched individual liberties. Our democracy is built around them, and therefore it is right that we should be extremely reluctant to go down the path of secret trials and the rest of it.

I am persuaded to go that way only because we had one plangent example of what can lie behind all this from my noble friend Lord Macdonald. It was about an intercept conversation that plainly reveals two people planning a grievous terrorist attack who cannot be brought to justice because of the inability of the court to hear intercept evidence. Yet if it is not taken with ultimate seriousness, and if not protected by exceptional provisions, such as this Bill provides, it could, and in some cases would, lead to ghastly public disasters. Although the freedom to go on living is the most precious liberty of all, in the liberty which protects that there is a great paradox, as my noble friend Lady Hamwee said: the protections we give to liberty head off disaster because they undermine the basis upon which extremism flourishes and can build.

My big reservation with the Bill is one that has been well aired by my noble friend Lord Goodhart, the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Lloyd. It is the fact that the Secretary of State is the person who first imposes one of these orders. I think that the noble Lord, Lord Hunt, said that that was fair enough because the Secretary of State is responsible for security. That is a point of view, but not one that I share.

The task of imposing one of these TPIMs is about as difficult as one can imagine. Given the bizarre circumstances in which that judgment has to be made, it seems to be, par excellence, one for a senior judge who is used to weighing evidence, has a nose for truth and falsehood, and whose experience will fit him or her to reach what are often pressured and speedy decisions, never forgetting that Home Secretaries are under the most intense pressure—we have two former Home Secretaries sitting here now. Very often, no doubt, they have 10 balls which are all urgent and important to juggle simultaneously and have to rely to a high degree upon their civil servants. I do not for a moment disparage any of those civil servants if I say that such a crucial decision is, par excellence, one for an experienced judge. If that reform was built into this Bill, I would be assuaged at the otherwise heavy intrusions it makes upon ancient liberties. At this time of night, I do not really want to say much more except to line up with those who feel that an annual renewal of these powers is, in all the circumstances, perhaps the better course.