Justice and Security Bill [HL]

Debate between Lord Reid of Cardowan and Lord Pannick

Monday 23rd July 2012 Lords Chamber

[Lord Reid of Cardowan]

The noble Lord knows that I always listened and, for the most part, conceded when he made representations on these matters. I have no problem with what he suggested earlier. I was careful not to attack or to try to criticise any particular amendment. The great omission is not the quality or substance of the amendments put forward, but the fact that we have been debating this in a vacuum.

The noble Lord, Lord Pannick, said that there has to be a balance between justice and security. I completely accept that. It is never an easy balance. There have been times in our history where the security situation has been such that we have had to take abnormal measures to constrain or expedite the justice element of that. I accept that it is much more difficult to perceive that today because we do not have a war. However, there is undoubtedly a conflict of sorts, which is a threat to the people of this country. What if—and I hope to God it is an “if”—something happens which could have been prevented by the exchange of intelligence of which we were not in receipt because we had not maintained trust? I do not just mean the trust of the United States but of all our allies. The great tragedy that was avoided in August 2006 involved intelligence sharing not just between the United States and ourselves but on a much wider basis. Two and a half thousand British citizens were at risk in that single event.

All I ask is that noble Lords and colleagues bear that in mind, so that we do not approach this purely from the position of legalism or legal principles. These principles are extremely important; certainly, do not abandon oversight. However, recognise that lying behind the proposals brought by the Government is a motivation which I at least—having been there and seen it with one or two other noble Lords who are here today—judge more benevolently than some of the critics of the Government.

[Lord Pannick]

Does the noble Lord accept that most of the amendments debated so far have been resisted by the Government not on the basis that they would undermine national security but rather, as I understand it, because they are unnecessary safeguards?

[Lord Reid of Cardowan]

The Government must speak for themselves. I am not a member of the coalition—though, with every passing day, it looks as though they may want others to join in place of those who leave. The Government must phrase their own reaction to the noble Lord’s position. I would much rather that we were transparent, out at the front and talked about it. I have just noticed other people here who are much better versed in matters of intelligence than I am. However, in listening to the speeches in here and reading those that I did not hear, I noticed a dearth, if not a complete absence, of one element of the balance we are trying to find—that is, a description of the security circumstances and an explanation of why these proposals might be brought forward at this time. I hope that the Government will perhaps do a little more of that, because we could all learn with a little education.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Reid of Cardowan and Lord Pannick

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.