Terrorism Prevention and Investigation Measures Bill

Lord Reid of Cardowan Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Dubs]

My Lords, I welcome the noble Lord, Lord Henley, as the Minister and pay tribute to the noble Baroness, Lady Browning. I hope that she will get better soon and will be with us again before too long. I was talking to her only yesterday to commiserate on her health. She said that she really enjoyed the job, and the fact that she did so was obvious in how she dealt with the business of the House. It was a pleasure for us all, even if we disagreed with her.

I am a member of the Joint Committee on Human Rights and I want to develop one or two arguments. At the outset, however, I should say that if I were speaking later in the debate, I would probably be saying to the noble and learned Lord, Lord Lloyd, that I agreed with him on intercept evidence and to the noble Lord, Lord Macdonald of River Glaven, that I agreed with the thrust of his arguments. But given that I have not yet heard them speak, I shall have to say a word about that.

The noble Lord, Lord Howard, mentioned intercept evidence and the committee on which he serves. Those of us not privy to the sort of information that he now is—as presumably he also was when in the Cabinet—are not as aware as he is of the difficulties involved in the use of intercept evidence. It is a difficult point which affects the whole debate on terrorism that most of us do not have access to the information which determines how decisions are ultimately made by Ministers. We have to take it as an act of faith and there are limits to the amount of faith we can always have. I am very keen on the use of intercept evidence and would like to hear—I am not going to because it is all secret, of course—the arguments against the use of it, given that it is now normally used in many other countries which presumably have the same difficulties that the noble Lord referred to.

[Lord Reid of Cardowan]

Briefly, my noble friend raises a good point that he does not have access to the information on which sometimes the judgment is based. I merely commend to him a study: can he name one British Home Secretary who does not agree with the noble Lord, Lord Howard, in his estimate of the dangers and disadvantages of introducing what my noble friend proposes?

[Lord Dubs]

Of course, all Home Secretaries had access to this information which we do not have, so I cannot name a single Home Secretary in that regard. That does not mean that all Home Secretaries in history have always been right about everything. I say that with as much modesty as I can muster. Why is it that in many other countries intercept evidence is used when the same difficulties surely apply?

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[Lord Reid of Cardowan]

The main reason people could abscond during control orders was not as a result of what the Home Secretaries wanted, which was 24-hour-a-day confinement; it was that, under the Human Rights Act and European Convention on Human Rights, the Home Secretaries were not allowed to authorise such confinement, but had to leave people eight hours to go about their normal business, whatever that was. That was an open invitation to undermine the very essence of the confinement under control and surveillance that was the essential requirement for control orders. It may be right or it may be wrong, but it was the main factor that allowed those under control orders to abscond.

[Lord Macdonald of River Glaven]

I entirely accept what the noble Lord says, and I am sure he is right about that. Of course, if the controlees had been confined for 24 hours in Belmarsh or even in their homes, it would have been far more difficult for them to abscond, but the control order system that we had existed largely as a result of decisions made by the courts. My point is that this control order system, as it came to be, may not in a serious sense have been protective of the public because it was so easy to abscond and because so many controlees did just that. My more substantial point is that I think that only one was ever prosecuted with a substantive terrorist offence so if the Home Secretaries were right that these people had been involved in terrorist activity, that would appear to be a failure of public policy in that terrorists in those circumstances were escaping justice.

My view is that, given the nature of the control order regime, this was not surprising. One clear finding of the review, accepted by all sides so far as I could tell, was that the control order regime was inimical to prosecution. That resulted from the reality of control orders, which amounted to the warehousing of suspects under the aegis of the Security Service and the consequent destruction of the normal routes and possibilities of evidence gathering. This was not the intention of the control order regime but it was one of its effects, and it was absolutely clear to me from material that I examined during the review that the process of building prosecutions against controlees was weak and had low priority. In fact, it almost never occurred.

For very understandable reasons, when a man was put under a control order the police would simply move on to other cases, satisfied that that individual was adequately quarantined under watchful eyes. That low prioritisation of prosecutions will always be evident so long as the system of restrictions is positioned outside criminal justice. If I am right about that—I shall expand a little in a moment—it means that to situate TPIMs outside criminal justice is not only possibly offensive to principle; it is also, finally, offensive to public safety because it lets people get away with terrorism and escape justice.

Let me say straight away that TPIMs appear to represent an improvement on what went before. The most offensive features of the previous regime from my perspective—those closest to house arrest—have gone. Relocation and long curfews will be a thing of the past. Individuals will be permitted to use electronic communications, including computers and phones, and the orders themselves will be time-limited to two years. Yet in my view the Government have failed to grapple with the central issue: the nature of the orders themselves and the appropriate space for them to occupy within our constitutional arrangements. In my report on the review, presented to Parliament alongside the review, I called for TPIMs to be attached quite explicitly to criminal investigations. That would facilitate the prosecution of serious criminals and deal with the constitutional objections that have bedevilled control orders and will, I am sure, continue to bedevil TPIMs. This stance has since been supported by the JCHR and noted by the Constitution Committee of this House. It deserves more serious consideration than the Government have so far shown it.

I understand that it will not always suit the Security Service, for which I have the greatest respect, to have law enforcement authorities crawling all over suspects under its control. That no doubt explains in part the strong support that the Security Service has given to the control order regime but it is nothing to the point. The public interest is not always and inevitably to be equated with the policy of the Security Service. Sometimes, Governments need to stand back. It is patently absurd that individuals certified by the most senior figures in government to be active terrorists are not constantly and relentlessly under criminal investigation. I do not accept for one moment that because the material against an individual is presently inadmissible for one reason or another—many identified by my noble friend Lord Howard—the investigation should stop. On the contrary, it should be redoubled and have TPIM conditions attached to it for its duration. Let there be relentless investigation into people who are suspected of terrorist activity but let it be criminal investigation and let TPIMs be tied to that investigation—to facilitate and assist it so that no opportunity is lost to bring violent extremists to justice—in a manner consistent with our rule of law.

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[Lord Macdonald of River Glaven]

If the noble Lord does not mind my saying so, that is a somewhat complacent view. There is wide public concern. Obviously there are different views around the country and in different communities, but it would be complacent for the noble Lord to come to the conclusion that there is and has been no broader public concern about control orders.

[Lord Reid of Cardowan]

Would the noble Lord give us one piece of evidence to substantiate that?

[Lord Macdonald of River Glaven]

The level of public debate and discussion is pretty clear evidence. The review itself contains evidence of public meetings and discussions with people who are concerned about the control order regime. I caution noble Lords from the view that there is no concern in the country outside these Houses about these arrangements; I believe that there is.

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[Lord Reid of Cardowan]

May I help the noble Lord? I was a Member of Parliament for 23 years. I held a surgery at least once a month and sometimes four times a month. I never had one person come to me and make representations for or against a control order. There is published concern and there are certainly lobby groups, but public concern is entirely different. All the evidence is that the public feel reasonably comfortable with this system as a matter of ensuring their security.

[Lord Macdonald of River Glaven]

I respect the noble Lord’s experience. I am sure from my own experience, conversations and discussions with many people in different parts of the country and different communities when I was DPP that there is and was concern about the control order regime, as there was concern about the pre-charge detention regime. Frankly, noble Lords delude themselves if they seriously suggest that there was no broader concern about measures of this sort; I am sure that there was. Maybe we will not agree about this but, with great respect to noble Lords, I find that view somewhat complacent.

When this subject is debated, everybody agrees that the most important result of any investigation into terrorism is prosecution. If one is considering protecting the public, they are best protected by people being sent to prison for long terms. This is something that we became and are extremely good at in this jurisdiction. We have extremely skilled and able specialist counterterrorism police and prosecutors, and an outstanding record of putting people in prison.

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[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.

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[Lord Reid of Cardowan]

Speaking in the gap, I have very few minutes, but I want to try to cover the context, the principle and the practicalities of this Bill. Perhaps I might make the point first, since there has been a distinction made between freedoms in law and politicians, that the freedoms we have in law were provided by politicians. They were implemented by judges and lawyers, but provided through the struggle of politicians. In the midst of all the many balls we had to juggle, I am sure that there was no higher responsibility and burden on our shoulders and no more concentrated effort from my predecessors and myself than the protection of the lives, liberties and livelihoods of the people of this country. I do not defer to lawyers as being the creators of our freedoms, I am afraid. I am sorry if that upsets them, but I am not a lawyer, as will be obvious. That is neither a boast nor a complaint but a matter of fact. I am an historian, and I want to say something about the historical context because to debate these measures without understanding the development of the threat is to debate them in a sterile vacuum and to miss the point that we have to see as politicians.

The first point about the threat is that it is not just a crime, as my noble friend Lord Judd said. It is a crime, but one with a political objective: the imposition of the will and the political desires of a group of people, not only in this country but internationally, which would undermine the very freedoms that we want and purport to defend in this House.

Secondly, it is not the same threat as 30 or 40 years ago. Intention and capability, the two elements of threat, are both now unconstrained because anyone who was willing to kill thousands of people in a terrorist attack in New York and Washington will be prepared to kill hundreds of thousands of people towards their political objective. That is the intention that is unconstrained by any morality or legality, or by the Geneva Convention or by anything else. The capability is now also unconstrained. The Nazis may have wanted to commit genocide but were constrained by Zyklon B canisters. Radiological, biological and dirty nuclear bombs now make it absolutely necessary for us to recognise that if that intention and capability ever come together, there will be a massacre of our people.

Thirdly, the threat has changed because it is now in the hands of individuals. My noble friend Lord Judd asked what has changed since 1945. It is not a lack of respect for rights; it is that the European Convention on Human Rights was based on the historical experience, of the fascist states in particular, and the recognition that the state was always the oppressor and the individual always the victim. That is no longer the case. Small groups of individuals, with the intention and capability that they have, can now be the perpetrators of the type of massacre that we previously said only states could perpetrate. That is the context that has been missing from some of this debate.

My other point is about the principle of the Bill. It has been conceded that extraordinary measures are necessary. The objection which many of our legal friends had against the control orders, and which I understood, was that they were extraordinary measures. They are; but the problem is that the Government have taken a step to breach the principle but diminished the effectiveness. I have no problem with more accountability to Parliament or with many of the measures in this Bill, but I have a fundamental problem, as has the noble Lord, Lord Carlile, with taking away the right of relocation.

Finally, I have deep suspicions that the Government have also conceded that the practical measures in the Bill are almost unnecessary because they have drafted another Bill in case it is needed. I am sure that I, along with many other Ministers and Governments, closed the door after the horse had bolted. I am sure that lack of foresight caused that and that sometimes, even when we had foresight, we closed the door after the horse had bolted. However, I genuinely have never known a Government who planned in advance to close the door after the horse had bolted, and this horse is the potential murder and massacre of so many of our citizens. Your Lordships know that the threat level is at “substantial”. It is still huge, as the noble Lord, Lord Carlile, said, but that is less than it has been. For 10 years, it has been at “severe”. God forbid that it should go to “critical”. If it does, I want the Government to know that I hope that they have got this right. This is not a matter of party politics. I genuinely hope that, but I fear that they have got it wrong, and I fear the consequences because all of us in this House will have to bear them if by diminishing the operational capability to counter terrorism and increasing the risk, something terrible were to happen—say, in the next year. I hope that it does not, and I wish the Government well, despite my reservations.

[Lord Rosser]

My Lords, I associate myself with the words of welcome already expressed to the noble Lord, Lord Henley, and with the words of appreciation and the expression of good wishes already expressed to the noble Baroness, Lady Browning.

This has been a passionate debate at times, with strongly held and widely differing views being expressed about the Bill. The reason why the Bill is before us is the statement in the coalition agreement that there would be a review of control orders. There is an objection in some parts of the coalition to the current control orders, and the Bill is an attempt to pretend that the coalition is making a significant change to the current arrangements. In reality, with regard to the continuation of control orders, the Government are tinkering at the edges and it fools no one. The difficulty is that the tinkering being undertaken through the Bill is potentially damaging and dangerous, as well as potentially costly.

The tinkering with the current arrangements includes the renaming of control orders to terrorism prevention and investigation measures notices; a change in the threshold from reasonable suspicion of involvement in terrorism-related activity to reasonable belief; a lengthy list of prescribed powers removing the ability of the Secretary of State also to impose any further obligations needed to prevent or restrict an individual’s involvement in terrorism-related activity; an overnight residence measure instead of curfew orders, which averaged just under 12 hours in 2010; and the TPIM regime being reviewed every five years instead of the annual renewal in Parliament required for control orders.

Unlike control orders, the Bill does not include a power of relocation to another part of the country without consent. Despite the interventions earlier by the noble Lord, Lord Phillips of Sudbury, I do not think that this was done on the basis that there were other provisions in the Bill that could achieve the same objectives.

The Government have clearly had second thoughts about the wisdom of that last matter; shortly before the Third Reading of the Bill in the other place they published the Draft Enhanced Terrorism Prevention and Investigation Measures Bill, which provides powers for the Home Secretary to impose enhanced TPIM notices. The powers available under such enhanced notices would include relocation without consent, which the Bill before us omits, and a ban on using communication devices, which the Bill before us restricts.

In reality the Government are revising the Bill before it has even been passed but, presumably because of the political embarrassment involved in having to put back provisions of the current control order arrangements in the interests of national security, they are seeking to do so not by putting the change in this Bill but by producing another draft Bill that can be debated and voted on by Parliament when needed at a later date. Clearly, the Government now accept that there is a requirement for a continuation of these additional powers in the interests of national security, otherwise they would not be trying to retain them in the somewhat back-door fashion they are proposing. In other words, the Government recognise that the coalition politicking involved in the Bill before us has put national security at risk.

However, the Government's proposed way of rectifying their error of judgment gives rise to further concerns. If for their own political reasons the Government are not going to include those powers in the Bill before us, that means that they could not be activated quickly when needed, since if Parliament was in recess at the time it would require the recall of Parliament and thus a period of some days at least before the Bill could be debated and passed and receive Royal Assent. Neither is it clear, as has been said, exactly how meaningful any parliamentary debate could be. Presumably, the Government would not be disclosing the intelligence information that had led to the Bill being brought forward.

The Government now recognise that the powers provided for in the draft Bill are needed, but because they will not include them in this Bill they are going to create a situation, particularly when Parliament is in recess, where the powers may be needed urgently in the interests of national security but cannot be exercised immediately when the need for them has become pressing. Quite a thought with the Olympic and Paralympic Games just around the corner. That would also mean that if the draft Bill were passed it would run alongside the current Bill, creating two separate control order regimes, expiring at different times, with different levels of power and possible court challenges.

There is a further concern. When Parliament is dissolved, or in the period between the appointment of a new Parliament and the first Queens's Speech, the Secretary of State would be able to apply the provisions of the draft Bill effectively by decree, if Parliament had not debated and passed the legislation and the legislation were still effective. Is that the way we want to go on this issue, either now or in the future? All because the Government will not put the provisions of the draft Bill into this Bill. There is certainly a real price to pay for the coalition Government’s political fudge.

We then come to the issue of resources. Perhaps the Minister will tell us what the additional cost of the extra surveillance for the TPIMs will be, and from where the additional funding will be met. As has been mentioned in this debate, Deputy Assistant Commissioner Stuart Osborne gave evidence to the Bill Committee in June on the readiness of those involved to implement the new system and said:

“To get the resources that 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. Until we have got that, we will not be able to start to bed things in and see how it works and how it transpires”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 9.]

So we have a situation where to date there appears to be silence on what the additional costs of the extra surveillance will be and where the money will come from, and a statement from a knowledgeable source that it will take more than a year to get the resources required in terms of people trained and the appropriate equipment. Where is the additional appropriately trained manpower going to come from at a time when numbers of police officers are being significantly reduced and police forces severely stretched?

Control orders are not ideal nor indeed desirable, but they are needed to deal with the situation that has arisen where a small number of people seek to pursue their own aims and objectives through acts of terrorism, and it is imperative that, when needed, we have the powers to stop them after the time their suspected intentions begin to emerge but before they can carry out their ghastly actions. Control orders have the support of the police, including the power to relocate; they have had the support of the courts, including the power to relocate; and they have been used by the current Home Secretary, including the power to relocate. I understand that some three-quarters of current controlees have relocation as part of their control order.

One of the prime responsibilities of a Government is the security of the nation and of our people. The Bill weakens counterterrorism protection by removing the power to relocate dangerous terror suspects, if needed, to prevent terrorist activity, and puts that provision in a draft Bill that it might not be possible to activate in time to deal with a security situation requiring the immediate use of the powers in the draft Bill. This Bill also weakens accountability since, unlike control orders, TPIMs will not require annual parliamentary votes to continue, and I am by no means the first to have drawn attention to this point. The Bill also fails to address the issue of the additional resources that the police and security services will need for the increased surveillance needed as a result of the changes that it introduces.

This Bill has nothing to do with improving national security; indeed it weakens it. It has nothing to do with human rights, since it is simply a classic example of a piece of legislation that has everything to do with internal coalition politics in which the protection of the people of this country from further acts of terrorism comes second behind the need to produce a political fudge on the question of control orders, which this Bill and the draft Bill retain, albeit under another name. This is not a change to “control order light”; it is a change to “control order risky”—and highly risky, at that. The Government should think again about some of the provisions of this Bill.

[Lord Reid of Cardowan]

Before my noble friend sits down, will he allow me to declare my interests as registered? I meant to do this during my contribution but did not because of the brief time allotment.